R v Finau

[2019] NSWDC 935

District Court

New South Wales

Medium Neutral Citation:

R v Finau [2019] NSWDC 935

Hearing dates:

26 July 2019

Decision date:

02 August 2019

Jurisdiction:

Criminal

Before:

Norrish QC DCJ

Decision:

Sentenced to and aggregate term of imprisonment of 6 years 6 months; non-parole period 3 years 6 months.

Catchwords:

CRIME – Sentence – robbery in company with wounding – supply prohibited drug – offences committed whilst subject to bond – no relevant criminal history – pleas of guilty - expressions of remorse - totality of criminality – purposes of sentencing – special circumstances – family support – some prospects of rehabilitation

Legislation Cited:

Crimes Act.

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney‑General's Application No 1(2002) 56 NSWLR 147

Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41

Johnson v R [2004] HCA 15; 78 ALJR 616

Millv R (1988) 166 CLR 59

ParentevR [2017] NSWCCA 284

Pearcev R (1998) 194 CLR 610

Rv Henry (1999) 46 NSWLR 346.

R v Holder (1983) 3 NSWLR 245

Rv XX (2009) 195 A Crim R 38

Category:

Sentence

Parties:

Regina (Crown)
Donnie Finau (Offender)

Representation:

Counsel:
Mr Mc Lachlan (Offender)

Solicitors:
Mr Freelander (DPP)

File Number(s):

2018/00033015

Publication restriction:

No

Judgment

1. Mr Finau, I propose to sentence you to a total of six and half years' imprisonment, fixing a non‑parole period of three years six months, commencing on 31 January 2018.  That is an aggregate sentence, indicative sentences I will provide shortly.

2. The prisoner, Donnie Finau, appears today for sentencing in relation to two offences; one is an offence of robbery in company with wounding, committed on 21 November 2017 at Pagewood.  The offence involved the robbery of a man called Mark Lau, a newsagent, and he was robbed of $550 in Australian currency.  The co‑offender is unknown and the prisoner has provided no assistance to identify that person, who no doubt is free in the community to commit the same type of crime again if he should wish.  That matter is one that carries a maximum penalty of 25 years' imprisonment and has a standard non‑parole period of seven years' imprisonment.  The prisoner pleaded guilty at the Local Court, and I propose to give him a discount of 25% for the utilitarian benefit of the plea of guilty in light of the fact that it was entered at the first reasonable opportunity.

3. The second matter for sentence is an offence of supplying a prohibited drug.  This was a matter that comes to this Court on indictment.  It is an allegation that the prisoner, on the 31 January 2018 at Glebe in the State of New South Wales, did knowingly take part in the supply of a prohibited drug, namely 68.76 grams of methylamphetamine.  This is an offence contrary to s 25(1) Drugs (Misuse and Trafficking) Act 1985 and carries a maximum penalty of 15 years' imprisonment and/or a $220,000 fine.  There is no standard non‑parole period.

4. In relation to that offence, being the matter on the indictment, I am required to take into account on a Form 1, another supply offence committed on the same date. That is an offence of knowingly take part in the supply of a prohibited drug commonly known as Xanax, in the quantity of 24.8 grams.  The prisoner was arrested on the 31 January 2018, and any sentences imposed will date from the date he came into custody.

5. The prisoner was born in December 1996 and was 20 years of age at the time of the robbery in company. He was 21 years of age at the time of the commission of the last offences with which I am concerned. These offences were committed by the prisoner while subject to a then s 9(1) Crimes (Sentencing Procedure) Act 1999 (“the Act”) good behaviour bond. That section has been repealed, but the two principal offences for sentencing were committed during the ambit of that bond, as was the matter on the Form 1. It is one of the aggravating factors, at least in relation to the robbery in company, where there are two principal aggravating factors under s 21A(2) of the Act and it is the aggravating factor in relation to the supply prohibited drug matter.

6. The facts of the matter are set out in an Agreed Statement of Facts in respect of the armed robbery with wounding matter and along with the facts I have photographs of the robbery taking place.  I did not raise this with the Crown, but I think the Court should see the CCTV footage to get a real feeling for the character of the offending. 

7. The two victims were owners of a newsagency in Pagewood called the "East Botany Newsagency”.  At 5.30pm on the 21 November 2017, they were going about their business endeavouring to run their newsagency profitably and hopefully without disturbance.  A male person, not the prisoner, walked into the premises at about 5.42pm and demanded "all the money".  The victim saw the male, who is shown in a still photograph from the CCTV footage, holding a black handgun described as a "black pistol" in his right hand.  It had a round barrel that was about 20 millimetres in diameter.  It was a firearm that has not been recovered, so whether it was capable of firing a projectile, or not, I do not know. But certainly was lifelike enough for the victim to believe it to be a genuine firearm.

8. The firearm was held less than a metre from the male victim.  He tried to knock the pistol out of the male's hands but was not successful.  He then ducked down below the counter and picked up a stool and pushed the stool into the male person holding the gun.  That person then started hitting and punching the victim with his fists, hitting the victim's face, head and upper body, causing him to fall to the ground.  By this stage, the prisoner was standing at the doorway to the newsagency and he can be seen entering the newsagency at a time which appears to be only three or four seconds after the man with the firearm had entered.

9. When the stool that was being used by the victim to stall the man with the gun, fell to the floor, the prisoner picked up the stool and threw it in the direction of the victim whilst the first male was hitting and punching that person.  We discussed this in the presence of the prisoner; he probably is not that interested in his legal liability, but the principle or concept of joint criminal enterprise clearly drew him into the commission of the offence that he has pleaded guilty to and his action, of throwing the stool at the victim, shows his complicity not just in terms of the robbery but what would appear to be his approval of the striking of the victim.  Although, I accept that his moral culpability is reduced because he was not the person who had the pistol or the person who actually struck the victim.

10. The prisoner did say, to his credit, "Hurry up" to his off-sider. But that was not necessarily a command to stop striking the victim.  It was more a demand, one would have thought in the circumstances, to finish off what the two men had come to do.  The man with the pistol said, "Give me all the money" and the victim handed over $550 in cash in various denominations, and the two men left the store.

11. The victim was treated by first responders who attended the premises.  He was taken to Prince of Wales Hospital and he received three stitches to his head and had "multiple contusions" to his face.  The stool which had been used in the incident was swabbed for a DNA comparison and compared with that of the offender. His DNA was located on the stool in proportions designated in the Agreed Facts.  Out of the DNA match, a motor vehicle with Victorian number plates was identified as being connected to the prisoner.

12. On the 31 January 2018, the prisoner was arrested in Glebe whilst he and his partner were waiting at a bus stop.  The prisoner did not answer any questions asked by the police, instead responded with comments like, "Short term memory" or "I can't remember".  He claimed that he "couldn't remember" driving the motor vehicle with the registration number linked to him.  He participated in an electronically recorded interview in relation to the robbery.  He said he had "short term memory".  He denies driving the motor vehicle with Victorian registration plates linked to him.  He gave an address at Claymore, which was a vacant address, and claimed that he did not know whether he had been in the newsagency.  They were all lies of course.

13. Obviously, even if he could not remember the date of the robbery, he would have remembered the robbery. Any claim by him that he could not remember it could not possibly be accepted by any right thinking individual.  When he was arrested there was a search warrant executed at a residence of his partner at 41 Arundel Street, Glebe.  There were a number of items found there.  There was a bottle containing the drug Diazepam; there was a plastic resealable bag containing 32 tablets that were later identified as "Xanax", weighing 24.8 grams.  That is the drug that is identified on the Form 1.  There were also two plastic resealable bags which contained a white crystalline, powdery substance which was confirmed to weigh 68.76 grams, and it comprised the prohibited drug methylamphetamine

14. The prisoner's partner told the police that the prisoner had come home that morning, having been out all night, and said that he was, "Just holding this for someone", referring to what I understand to be the methylamphetamine, in the context of this being an unguarded comment by the prisoner to someone that he no doubt trusted when he may not have anticipated being arrested that day.

15. I am prepared to accept it as a hearsay representation capable of establishing the fact that he was in possession of the methylamphetamine for the purposes of handling it on behalf of another person to pass to either that person or a third party.  Of course, there is in the context of supplying prohibited drugs, a legal issue that might arise in relation to this stewardship. But the prisoner has admitted his guilt of that matter by his plea to the charge on the indictment.

16. The search of the prisoner's property, as I would describe it, although it was the property where he lived with his partner and was her family's property, revealed no other indicia of drugs supplied.  There was no evidence of any scales or resealable bags, multiple mobile phones or the like. That is consistent with this prisoner holding the methylamphetamine in a "one off" capacity.  That having been said, it is quite clear he is substantially concerned in the supply of prohibited drugs having regard to the weight of the drug being significantly above an indictable quantity for methylamphetamine and a trafficable quantity of the same drug.

17. To emphasise the value of what he had in his possession, in an agreed set of facts it is said that the street value of the methylamphetamine sold in its form as seized was $103,000 if sold in point deals, that is .1 of a gram, or $41,256 when sold in one gram deals and, of course, would be less valuable if it was sold as a job lot.  But there is no evidence that the prisoner was proposing to sell it as such in the context of the representation that he made to his partner.  That having been said, the drug obviously was going to be sold by somebody, and that establishes the value of those drugs and the prisoner would have been aware that it was a substantial quantity of drugs even if he was himself unfamiliar with the detail of drugs supplied.

18. The prisoner at the time of the commission of the offences with which I am concerned, was subject to the s 9 bond, but could not be said to have a "significant" criminal history. He had no prior convictions for offences of dishonesty. He did have convictions for offences of violence, but his record, could not be regarded as significant.

19. To put it on the record, he appeared at Bankstown Court on the 10 October 2017 and was convicted of assaulting an officer in the execution of his duty; resisting a police officer in the execution of his duty, and the offence of affray. For these various offences he was fined and ordered to enter a good behaviour bond pursuant to s 9 of the Act, for a period of two years. I have the facts in relation to that matter because I am required to, and it is consented to “call up” the prisoner in relation to those matters. The facts in relation to the affray revealed that although the prisoner was a willing participant in the fight, he was not, it might be thought, the aggressor.

20. There is reference in the Statement of Facts to another person producing a firearm at some stage, or at least a replica firearm.  The prisoner was unarmed although police at one point believed him to be armed. Certainly it is clear, that when police confronted the prisoner he refused to be compliant and continued to resist in a range of ways as described in the facts, failing to comply with instructions, and at one point saying to police, "shoot me, just shoot me". 

21. His other convictions relate to the misuse of motor vehicles, being unlicensed, driving whilst disqualified, and driving with a low level PCA, described as a "special category driver".  I take it to mean being a P‑plater and having a reading that is not permitted for inexperienced drivers.  For some reason when he was dealt with at the Waverley Court in March of 2018 he was granted a s 10A conviction with periods of disqualification. But then again, he was in custody in relation to the current matters, so perhaps the Magistrate felt that there was not any point in imposing any other penalty.

22. There is what is described loosely a "Victorian" record.  It is almost indecipherable. But there is nothing there that I could really conclude was a conviction.  There appears to be some warrant in existence for the prisoner in Victoria, but I cannot really act upon that matter.

23. The only other matter, within the Crown bundle of significance by reference to the prior conduct of the prisoner, is his custodial record.  The Crown has made particular submissions about it.  The prisoner comments about his behaviour in custody in the context of some material presented on behalf of him by the defence. I note various adverse disciplinary findings within the custodial setting.  I usually approach these matters with some circumspection.

24. Amongst other things, I am well aware of the fact that the standard of justice in relation to the determination of these matters falls far short of what would be expected in a Court.  But, whilst there are a number of actions of disobedience on the part of the prisoner reflected in the record, I note, perhaps "in fairness", that the prisoner's record of misbehaviour by reference to the custodial record is over the first year of his custody.  He has been in custody now over a year and a half and there are no behavioural issues that have arisen since the very beginning of 2019. I do not regard his custodial record as of great significance.

25. With regard to the material presented on behalf of the prisoner, the prisoner has presented a psychologist's report.  I note the prisoner did not give evidence and one approaches any history provided by a prisoner in the context of it being untested with some circumspection. But, to be frank, this is not a report that claims the existence of a longstanding mental illness or disability that has not been previously diagnosed or identified based upon the history given by the prisoner.

26. In fact the psychologist reflects upon the fact that such anxiety or "depression" or symptoms of such exhibited by the prisoner are matters that have arisen out of the current circumstances of being in custody.  To quote the psychologist,

"Based on his presentation and self‑report, I do not find that Mr Finau would meet criteria for diagnosis with any other mental health condition at this time.  He does report significant anxiety associated with the custodial environment and his imminent sentencing, however it is likely these symptoms will remit in response to changing circumstances, including a transition to lower security settings.  He reports that he is using appropriate strategies to manage his distress and was aware of avenues to seek clinical support in custody if required".

27. So far as his background is concerned, it seems to me to be uncontroversial and I am prepared to accept the detail of it.  I note his parents have come up from Victoria to support him.  The prisoner was born in New Zealand.  His parents were originally from Tonga.  He is one of five children having two brothers and two sisters.  He came from a family that has been described as ‘pro-social’. There is no history of drug abuse or physical or sexual abuse.

28. His father has been a hard worker all of his life and is still currently employed. In fact, as I understood it, his father is undertaking further study to enhance his working opportunities.  His father is a Pastor in a local Tongan congregation.  His mother was a nurse. 

29. He enjoyed school although he was not particularly good at it.  He was a talented rugby league player.  He played representative football within the South Sydney Juniors and even went to Queensland to further his career, but in the context of getting into a bit of trouble at school with truancy and fights and the like.

30. His parents relocated to Melbourne from New South Wales when he was aged 20.  He lived with there with them for a year. This would explain his association with a car with Victorian number plates.  But he wanted his own space;  he wanted to assert himself. So he came back to Sydney and it would appear, promptly got himself into the trouble that he now faces.  He said that he thought that his partner provided a "pro-social" influence upon him.  The word "pro-social" of course coming from the psychologist.  I appreciate that, and she may well be a positive influence upon him, but as I have observed from the chronology of events, the prisoner committed these offences whilst in the relationship with his partner.

31. The prisoner would appear to have had some employment history, although there are no particular details available to me.  He has worked in warehouses. He would like to have a career in real estate.  Whether these convictions prevent that, I do not know.  He has had a history of problematic drinking for a long period of time, although he claimed that he reduced his drinking when he met his current partner.  He said that he occasionally had blackouts from drinking.  He is said to have reported symptoms consistent with a DSM‑5 diagnosis of “Alcohol Use Disorder". But that would not be a matter of mitigation even if properly diagnosed within those criteria, and there is no evidence of any value that he was affected by alcohol or drugs at the time of the offending.  He has experimented with prohibited drugs.  He was also taking Xanax from time to time.  With regard to his treatment in the past he had no prior contact with any mental health services or any diagnoses of mental health conditions.

32. He claimed to be a sensitive person. He said he was a person who would not intentionally pick fights. But he had no hesitation in hitting people in self‑defence. This reflects the matters that were dealt with at the Local Court to which he was subject to s 9 bonds. He did, however, claim to the psychologist that he "was unable to recall" the armed robbery, claiming to be under the influence of alcohol and Xanax at the time. I completely disbelieve that claim. It is fatuous and it does not accord with the facts of the matter.

33. He did accept some responsibility for his conduct.  A bit late for the victim, of course. But he described it as "pretty horrendous" and "ugly".  He claimed that he was influenced by his co‑offender, and his co‑offender certainly was the leading player in the whole event. This is a matter conceded by the Crown and stressed by his legal representative. 

34. He initially struggled whilst in custody as one would expect.  It was his first time in custody. But he has tried to take positive steps, returning to reading the Bible and also looking at programs that he could undertake after his sentencing occurs and he moves back into the major prison population.  I have taken into account all that was in the psychological report.  It really performs the function of a pre‑sentence report in the absence of any identification of any psychological or other problems.

27. I have a reference from his father, confirming support of his family and I note his family's presence here today.  He confirms some aspects of the prisoner's background referred to in the report.  He notes that they have tried to keep in contact with the prisoner in custody.  As I said earlier, the prisoner's father has a responsible job and he is pursuing a Bachelor of Business in Accounting.

28. I also have a reference from his partner.  She is obviously aware of the charges.  She was present when he was arrested.  She notes, in her dealings with him, that he is "very polite".  He is willing to assist others and the like.  I note, which I take into account, that on occasions he has bought meals for "homeless people" and I am sure that on one side of his character is a caring empathetic individual.  The problem is he was not capable of empathy at the time of the commission of the armed robbery offence.  I accept that he is a family oriented individual, as his partner claims, and she notes his willingness to attend church and to be involved in sport.

29. The Crown prepared very detailed written submissions, which were of some assistance.  The counsel for the accused took me to a number of matters which seemed to be in accord with the material submissions of the Crown.  I do not propose to repeat all the submissions that were put to me, but I need to reflect upon some of them to indicate the findings that I have made.  I have already indicated the discount I propose to give for the robbery with wounding matter. 

30. For the supply matter, I provide the prisoner with a discount of 10% for the utilitarian benefit of the plea of guilty. That is accepted by both Crown and defence as an appropriate discount.  The s 5 "threshold" has obviously been passed in relation to both offences.

31. One must have regard to the “purposes of sentencing” pursuant to s 3A of the Act. There is a need for adequate punishment to deter the prisoner and others from committing similar offences, to some extent protect the community from the offender, although I do not perceive him as a significant danger to the community, to make him accountable for his conduct, to denounce his conduct, to recognise the harm done in the case of the armed robbery matter to the victim, a man just going about his business trying to make some money in a declining industry. That would not have been of any concern obviously to the prisoner and his friend. But I am also required to promote his rehabilitation and I do so in the context of him being relatively young, 20 at the time of the most serious offence, without a significant criminal history.

32. Both parties took me to the guideline judgment of R v Henry (1999) 46 NSWLR 346. In that particular matter, the Court of Criminal Appeal considered a guideline for the offence of armed robbery pursuant to s 97 Crimes Act 1900. It has been pointed out in the submissions, and I need not dilate upon this matter, it is true that the offence the prisoner is guilty of, pursuant to s 98 Crimes Act 1900, is a more serious offence. In considering “the guideline” to the extent that it is relevant, one is required to note the greater maximum penalty and of course the additional factor of the wounding of the victim.

33. In the guideline judgment, the Chief Justice speaking for the majority of the Court, at [162], identified the various criteria that reflected sufficiently common features for the purposes of determining a guideline. I am prepared to accept, in the context of this offending, by reference to those matters, that the prisoner was relatively young with little criminal history, certainly no relevant criminal history and that there was a limited degree of planning. It is clear that this was not "The Brinks Job”. It was by happenchance that this particular place was chosen. The victim was in a vulnerable position. He was a "shopkeeper". That is, as the Crown points out and is accepted by counsel for the prisoner, the additional aggravating factor under s 21A(2) of the Act in respect of the armed robbery matter.  Of course there are degrees of vulnerability, I appreciate that, and it is recognised. The victim in this matter was robbed in daylight hours during daylight savings around about 5.42 in the afternoon, not in the early hours of the morning.  One would expect in that area of Sydney there would be people about.  It is not the case of a person in a service station, or perhaps in a shop, in the early hours of the morning, completely alone. But the victim, it is accepted by the defence, would have been "vulnerable" to the extent that the facts reveal.

34. The plea of guilty, of course, is assessed in the context of the Henry guideline as a relevant factor to the guideline that was proposed. But a plea of guilty in the context of the guidelines,

"the significance of which is limited by a strong Crown case". 

It is to be remembered, of course, reflecting upon the history of these matters, that Henry was decided just before the guideline judgment of Thomson and Houlton v R [2000] NSWCCA 309, which was the first decision of the Court of Criminal Appeal to recognise specific range of discount to be considered for identification of the utilitarian benefit of the plea of guilty. It has been understood since Henry, of course, that the guideline has to be seen, in the context of a plea of guilty of limited utilitarian value. In Thomson and Houlton it was recognised that the strength of the Crown case was not a relevant factor to the assessment of "the utilitarian benefit of the plea of guilty".  In any event, here there is recognition of that utilitarian benefit by a discount that was not available at the time of the Henry guidelines.

43. However, the learned Chief Justice went on at [170], to identify additional factors which would increase the objective severity of the offending.  First of all was the nature of the weapon.  We do not know whether this weapon was capable of discharging.  The intensity of actual violence here is considerably greater than contemplated for the purposes of the guideline and another factor is the "number of offenders".  In this case there were two offenders, not one offender acting alone.  The effect upon the victims I am unable to judge conclusively.

44. The victim has not provided a Victim Impact Statement, but this would be, one would have thought, a traumatising experience for a person trying to run a business being attacked in his own shop the way he was. The amount taken is a substantial amount but not significant and not necessarily an aggravating aspect of the matter that might be contemplated under what was identified at [170].

45. It can be seen by reference to the guideline, that having regard to the maximum penalty and to the presence of aggravating factors “factually” pursuant to s.21A(1), putting aside aggravating factors that arise under s 21A(2), the guideline provides some assistance, but one needs to judge the matter in its proper legislative context.

46. With regard to the drug supply matter, the Crown says that it "falls within the lower end of the range of objective seriousness for offences of this type", but I think it is fair to say, it was a substantial quantity of the particular drugs involved.  I have already made comment upon what I could understand to be the prisoner's role.  It does not appear that he is in the business of "selling" the drug in a significant way and of course, again that offence is subject to the aggravating factor that I have identified.

47. With regard to the s 9 bonds, they are required to be revoked and the prisoner to be re-sentenced. The offences themselves were serious. Although the prisoner to some extent was drawn into the affray, he was a willing participant in it. His conduct towards the police was entirely unnecessary. If the prisoner had produced the firearm, of course, that would have been a matter that would have required a more significant sentence than I am proposing in relation to the call up matter. The practical way to deal with the call up matter is to impose a term of imprisonment.

48. I am proposing an aggregate sentence to reflect the totality of the criminality. In that regard, I note what has been said about the matter by a number of judgments.  There are leading judgments such as the decision of R v Holder (1983) 3 NSWLR 245 in the judgment of Street CJ. There are the observations of the High Court in Mill v R (1988) 166 CLR 59 and also Johnson v R [2004] HCA 15; 78 ALJR 616, a more recent case of the High Court, adopting what had been said in Mill, and then there is Pearce v R (1998) 194 CLR 610, and the obiter observations of the majority of the High Court, at [45]. That judgment, of course, was a conviction appeal, but their Honours in the context of the issues in the conviction appeal, turned their attention to the need for transparency in sentencing.

49. In respect of the various principles arising in relation to totality of sentencing, there are also the observations of Hall J in the decision of R v XX (2009) 195 A Crim R 38, particular, at [52], where he set out various propositions, including propositions derived principally from the decision of Howie J in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41. I need not reiterate all those matters. It is clear that there must be some partial accumulation of the sentences in the context of arriving at the right result in terms of totality of sentencing.

50. With regard to particular submissions of counsel for the accused; many of the submissions have been addressed in the particular findings I have made. I have noted, of course, the lesser moral culpability of the prisoner although he is ensnared, by the principle of joint criminal enterprise.  I have reflected upon the discounts that the prisoner is entitled to and the totality of criminality.

51. With regard to his prospects of rehabilitation, turning to mitigating factors that arise under s 21A(3) of the Act, I am prepared to accept that on balance there is some prospect of rehabilitation. I take into account his youth, and the support of his family. In this context I have determined that there are “special circumstances” pursuant to s 44 of the Act and there should be an adjustment of the relationship of the effective non‑parole period to the balance of the sentence to provide assistance to the prisoner to adjust to community living and receive professional guidance in relation to matters, particularly in respect of his associations, his use of alcohol and the use of either prescription or other drugs. Although, it does not appear on the history he gave that he had any significant drug history even if he was a user of Xanax.

52. I have taken into account what his counsellor said about his time in custody, particularly his custodial record. I have concluded, notwithstanding the helpful submissions of the Crown, that that record is not a bar to the finding that I have indicated of there being some prospects of rehabilitation.

53. In the context of the submissions made by the parties, I also note other matters. The offence was not part of planned criminal activity. I have already referred to the history of his previous record; not in a contradictory way, but I could not find him a person of "the good character". If the prisoner is able to return to the embrace of his family, I think there is a good chance that he is unlikely to re-offend. He has expressed remorse for his offending, but I could not, on balance, conclude that he was relevantly remorseful as required under s 21A(3)(i) of the Act.

54. His pleas of guilty are mitigating factors.  I have already dealt with that when I reflected upon the discounts that he was entitled to.

55. The supply prohibited drug matter in my view, standing alone and in the context of having to deal with him for an offence that must involve a relevantly substantial term of imprisonment, there is no penalty other than that of imprisonment required (s.5 of the Act). I do so in the context of the examination of this issue in the decision of Parente v R [2017] NSWCCA 284, particularly what was said by the Court at [107]‑[115]. The purposes of sentencing play a role in determining that there should be a term of imprisonment, including issues of deterrence and protection of the community.

56. Of course, the quantity of the drugs is a relevant matter.  It is to be borne in mind that the prisoner committed that offence after he had committed the armed robbery offence, although he was not charged at that particular time.  If it stood alone, I still would have imposed a term of full-time custody in the consideration of the principles identified in Parente.

57. I am mindful of the fact, in relation to the robbery with wounding matter, that there is a standard non‑parole period of seven years.  For the purposes of sentencing the offender, I am required to take into account only the objective factors affecting the relative seriousness of the offence, for assessing whether it is an offence in the “middle range”.

58. I have determined that the offence, having regard to the use of and the character of the weapon, the role of the prisoner, the amount of money taken and other factors I have identified, as being just below the middle range of objective seriousness.

59. Of course the standard non‑parole period provides a guidepost to what the appropriate non‑parole period should be. I have not lost sight of the fact that s 54B(2) of the Act states that the standard non‑parole period for an offence is a matter to be taken into account by a Court in determining the appropriate sentence for an offender without limiting the matters that are otherwise permitted to be taken into account.  The finding of ‘special circumstances’ is another relevant issue to the fixing of the non‑parole period.

60. With regard to the consideration of the matter on the Form 1, I note the character of that drug is very different from the character of the drug in the principal offence and I consider the matter on the Form 1 in accordance with the guideline judgment of the Court of Criminal Appeal, Attorney‑General's Application No 1 (2002) 56 NSWLR 147, particularly at [18]‑[44]. There the Court held, that usually when taking into account matters on a Form 1, greater weight should be given to the need for personal deterrence and the community's entitlement to extract retribution. The entire point of the process is usually to impose a longer sentence or to alter the nature of the sentence that would have been imposed if the principal offence had stood alone. In this particular matter, given the character of the drug and the use of it by the prisoner himself, it seems to me not to be a matter that significantly alters what would otherwise be the appropriate sentence for the principal offence. I bear in mind that the Court is not required to indicate the measure of the effect upon the appropriate sentence for the principal offence of having the matter on the Form 1.

61. I do not accept the prisoner's lack of memory of the relevant events.  The use of drugs and alcohol in any event is not a mitigating factor, as the Crown points out.  Nor was it suggested that it should be a mitigating factor.  The prisoner really has to take responsibility for his conduct and I would have been more impressed with these expressions of contrition if he owned up to the fact that he knew he was there and he obviously saw what happened. Unless he had been involved in many armed robberies over the period of time between November 2017 and late January 2018, he should not have had any reason whatsoever not to remember such a distinctive event.  I am not suggesting he was involved in other armed robberies. But it seems to me that if this was a one off event it should have really stuck in his mind.  I am sure that he does not forget sharing the proceeds of the robbery, and he certainly would not forget the identity of the co‑offender.

62. I believe, by reference to the particular matters I have covered in my judgment, I have identified all the matters that are required to be taken into account.

63. I turn to the orders;  

In relation to the offences that you have pleaded guilty to, this is an appropriate matter for an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act.  I am required to set out an indicative sentence in respect of each count.  In relation to the consideration of the aggregate sentence I have had regard to the need for reflection upon the so called "totality" principle.

Pursuant to s 53A Crimes (Sentencing Procedure) Act 1999, I sentence the prisoner to an aggregate term of imprisonment, comprising a non‑parole period of three years six months to commence on 31 January 2018 and to expire on 30 October 2021, with a balance of sentence of three years to expire on 30 July 2024.

64. In relation to the indicative sentences of imprisonment:

In respect of the armed robbery with wounding, I sentence the prisoner to five years three months imprisonment as an indicative sentence with a non‑parole period of three years.

In relation to the supply prohibited drug matter, taking into account the matter on the Form 1, I sentence the prisoner to two years imprisonment.

In relation to the call up matters, I sentence the prisoner to nine months imprisonment in each case.

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Decision last updated: 01 September 2020