R v George James Fernando

[2007] NSWDC 158

CITATION:	R v George James Fernando [2007] NSWDC 158
HEARING DATE(S):	4 & 8 June 2007
JUDGMENT DATE:	8 June 2007
EX TEMPORE JUDGMENT DATE:	10 June 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted; NPP 3 years & 3 months & 15 days Balance of term 3 years
CATCHWORDS:	Criminal Law - Sentencing- Robbery in Company - Assault with intent to Rob in Company - 15 Form 1 Matters - 3 offences within early moring time span - small businesses - serious level of violence - planning - vulnerable victims - offender's role front man in robbery - 26year old Aboriginal man - disruptive early life - drug and alcohol issues - substantial prior periods in custody - applying the Fernando principles.
LEGISLATION CITED:	Crimes (Sentencing Procedure Act)
CASES CITED:	Cuthbert (1967) 86 N (NSW) Pt 1 272 Rushby [1977] 1 NSWLR 594 Hayes [1984] 1 NSWLR 740) The Queen v Rause NSW CCA 8/8/92 Desimoni v The Queen (1981) 147 CLR 383 Attorney-General’s reference number 1 of 1999 (2004) 61 NSWLR 38 Stanley Fernando (1992) 72 ACrimR 58 at 62-63
PARTIES:	Regina George James Fernando
FILE NUMBER(S):	07/31/0069
SOLICITORS:	Crown: Ms: K. Malley Office of DPP Offender: Mr J. North

SENTENCE
1 In June of 2004 George Fernando was twenty-three years old. He was staying in Kempsey with an uncle, Rob Fernando, at the Green Hills mission. He had completed a two month term of imprisonment on 16 April that year, less than two months prior to the date of the offences bringing him before this Court. If one includes control orders imposed by the Children's Court, he has been in and out of fulltime custody seven times, on my count, between 1998 and 2004.

2 During these six years the Court of Criminal Appeal has published more than 2,800 judgments, many of which have stressed the importance of general and personal deterrence in courts dealing with offenders responsible for crimes of violence such as robbery in company when considering appeals against sentences of imprisonment, or the leniency of sentences imposed by this and/or other courts.

3 The offences now before the court suggest, at least so far as George Fernando is concerned, that he either did not hear or did not heed the Court of Criminal Appeal’s views as to the importance of general and personal deterrence.

4 On 6 June 2004 George Fernando left his Kempsey digs to join three other co-offenders in a motor vehicle, stolen and driven from Sydney, it seems solely for the purpose of conducting a series of brazen robberies between Sydney and Coffs Harbour.

5 In respect of a series of offences conducted by these four hoodlums in the early hours of June the 6th, George Fernando has pleaded guilty in the Local Court at Moree on 20 March 2007 to an offence of robbery in company, and an assault with intent to rob in company. Each of these offences is by far and away the most serious offence George Fernando has committed thus far. Today he is to be held accountable for his criminal conduct in June of 2004.

6 He asks, when I sentence him for the robbery in company, that I take into account eighteen additional charges pursuant to s 32 of the Crimes (Sentencing Procedure) Act, two of which also occurred on 6 June 2004.

7 I had indicated, before I commence these remarks, that items or charges 8, 9 and 11 are matters upon which it appears he has been convicted in the Local Court and, therefore, cannot be included as matters that I can take into account pursuant to s 32, but otherwise I intend to do so; that is, intend to take the other fifteen matters into account.

8 As sentencing judge it falls to me to resolve a number of competing contentions as I strive to determine the appropriate sentences for these offences before this Court committed by this offender, harming the victims that he harmed in the community of Coffs Harbour. My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to the offender, called subjective matters. The starting point for such assessment requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offences and to the offender. The offender’s rehabilitation prospects will have to be assessed, even if looking through a glass darkly.

9 Before any sentence can be made there are likely to be technical questions relating to deterrence, as earlier mentioned, discounts, whether special circumstances are to be found, totality, and finally, of course, the ultimate term of imprisonment or other penalty that is to be imposed. None of these can be commenced until the primary facts are determined. What weight needs to be given to all these matters against the imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined. (see Cuthbert (1967) 86 WN (NSW) Pt 1 272, Rushby [1977] 1 NSWLR 594 & Hayes [1984] 1 NSWLR 740)

10 The evidence before the court is uncontested. The offender’s account was that upon his release from gaol in April of 2004 he resided initially with his brother in Leichhardt. There he stayed for six to eight weeks, resumed his abuse of drugs and moved to live with an uncle in Kempsey to get away from the drugs. The other co-offenders lived in Sydney and were trying to persuade him to become involved in criminal activity there. After he had been in Kempsey for a couple of weeks the three co-offenders, he said, turned up “out of the blue” in the stolen motor vehicle some time between 10 and 11pm on 5 June. At this time he was pretty drunk. He was asked if he wanted to get some money. He agreed. George Fernando’s evidence is that if he was sober he would not have agreed. He claims he did not know he was to be involved in robbery in company when he entered the car. He took nothing to disguise himself. Once in the car, he was armed with a wheel brace by one of his co-offenders and it would seem there was a balaclava for him in the vehicle.

11 His account, both in his sworn evidence and in his ERISP, is one that seeks to minimise his role in these offences. Whilst that is quite understandable, it puts the onus squarely upon the prosecution to prove beyond reasonable doubt matters adverse to him. In the hearing before me none of his evidence was really challenged.

12 The solicitor-in-charge has prepared a statement of facts, which was not contested at the hearing. It appears to reflect fairly the admissions concerning the events made by Fernando to police as best he could remember two years later. Those admissions, coincidentally, were made on 6 June 2006, two years to the day exactly later.

13 The facts, as prepared by Mr Fraser, solicitor of the DPP, are in these terms:

At 3.27am on Sunday 6 June 2007 the offender and three male co-offenders arrived at the Sawtell newsagency situated in First Avenue, Sawtell in a motor vehicle stolen in Sydney the previous day. At that time Terry Powick, a twenty-four year old security officer, was placing the morning newspapers inside the premises. The four offenders approached Mr Powick, wearing clothing over their heads and holding wheel braces in their hands.

Mr Powick ran to his car, which was parked a short distance away, and two of the offenders ran after him, one of whom struck him on the back of the head with a wheel brace. Another offender said, “Come on, leave him alone. Let him go.” The first offender continued to assault Mr Powick with the wheel brace, hitting him on the shoulder and torso, saying, “He is a witness. I need him gone.” Mr Powick pushed this assailant away and entered his vehicle. He started it, and then his assailant smashed the driver’s side window, seeking to grab the keys from the ignition. Powick said, “Mate, you can have the fucking shop. I’m out of here.” The assailant said, “Just give me the keys and you can go.” No doubt bearing in mind the last remark of the assailant, Mr Powick said, “Be fucked, that will not happen. I’m out of here.”

The assailant then reached in, turned the motor vehicle off, and tried to take the keys. Mr Powick punched the assailant, causing him to release the keys. The assailant then attempted again to hit Mr Powick with the wheel brace. Mr Powick started the vehicle and drove off. The assailant and one of the other offenders hit the side of the vehicle with the wheel braces as Powick left. The assailant chased after the vehicle for some distance. While that was going on, two of the offenders had gone into the newsagency. In so doing, one had set off the alarm, or probably both. One of those who had gone into the newsagency was this offender. Powick contacted his base, who in turn contacted police. Seconds later, Powick saw the offenders’ vehicle turn south into Toormina Road. The offenders had decided to leave, as I say, because the alarm had been set off.

At 3.30am on Sunday 6 June, that is some six minutes later, the offender and his co-offenders drove the stolen motor car to the Bogas service station in Toormina Road. At that time Corey King, a twenty-one year old employee of the service station, was in the storeroom of the premises sorting out stock. He heard the petrol pump alarm sound and went to the counter area. There he saw a male person behind the service desk. As he walked into the room, he was confronted by another male person who had a long adjustable wrench, wearing a hat with a bandana wrapped around his face. He said to Mr King, “Where’s the fucking money? Open the fucking till,” whilst pushing him in the back. He said, “Hurry up. Hurry up. Open the fucking till. Where’s the money?”

Mr King saw that the person behind the counter also had his face covered and had a wheel brace, but said nothing. He noted that both persons were of Aboriginal appearance. Mr King said that the person with the wrench kept yelling for money and held the item above his head in a threatening manner. Mr King opened the cash registered and handed the cash drawer containing $600 in cash to the robber with the wrench. The robber’s response was, “Is that all the fucking money?” The other robber took Mr King’s personal laptop computer and his MP3 player valued at $3,100 from the bench on the service desk and ran from the premises. All men drove away in the stolen vehicle.

14 Mr King, not surprisingly, suffered shock and fear as a result of the offence.

15 The cash drawer taken from the service station was recovered beside the roadway in Toormina. Police also found blood on a filing cabinet drawer in the service station. That blood had a DNA profile consistent with being the offender’s DNA.

16 On 6 June 2006 George Fernando agreed to participate in an electronically recorded interview. He told police he had been picked up from his uncle’s home in Kempsey in the stolen vehicle by his co-offenders and then travelled to Coffs Harbour.

17 He admitted committing the break and enter offence at Computerland, to which I will come shortly, at 3.19.

18 He admitted that about ten minutes later he committed the offence at Sawtell newsagency, the first offence to which I have referred. He said he went there to take cigarettes and had run into the shop, but the alarm went off and he left. He nominated by name a person as responsible for smashing the window of the security officer’s car.

19 He admitted that some six or seven minutes later he committed the robbery at the service station. He agreed that he had taken the laptop computer and MP3 player from the counter. It must be that he was one of the offenders in the shop. He nominated a person who he says was responsible for also confronting the service station operative armed with a wrench.

20 He said eventually he had been driven back to his uncle’s home in Kempsey and the others had returned to Sydney. He accepted that he had received “a bit of money” from the robbery but the laptop computer and the MP3 player had been taken to Sydney by his co-offenders.

21 It was conceded by the crown that this offender had pleaded guilty to the indictment at the earliest opportunity.

22 Eight minutes or so before the first of the offences was committed on the security officer, the vehicle containing the four offenders pulled up in front of Computerland, Park Avenue, Coffs Harbour. One of the men was apparently armed with a shortened firearm. This weapon was left behind at the scene. The front window of the premises was smashed. A computer, money box, digital camcorder were taken. This offender was responsible for grabbing the computer. The four offenders then fled in their stolen vehicle, making their way to the newsagency. This is one of the fifteen offences I am to take into account on the form 1.

23 I have also been asked to take into account the fact that this offender allowed himself to be conveyed from Kempsey to Coffs Harbour in the stolen vehicle. That trip was a trip undertaken for the illegal purposes that I am dealing with.

OBJECTIVE CRIMINALITY

24 From the facts as he finds them to be, the sentencing judge is required to assess what is called the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of this offender. That is done by comparing objectively the criminality exhibited in the instant offences with the criminality of offences of a similar kind. It is in this way that the seriousness of the criminality of these offences can be evaluated. Not surprisingly, the objective criminality has a very important impact upon the overall sentencing outcome.

25 Gleeson J, when Chief Justice of New South Wales, encapsulated the essence of the legal wrong done by robbers and the reason why substantial punishment is required in The Queen v Rause NSW CCA 8/8/92. What his Honour said there is not only relevant to the service station offence, but also has relevance to the assault upon Mr Powick. The Chief Justice said:

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

It is quite likely that this young man does not understand and he may never understand the seriousness of his anti-social behaviour. But the courts understand it. Crimes of this kind, especially when committed by an offender with a long criminal history, deserve severe punishment.”

26 Each of the two offences that I am dealing with was an offence of serious personal violence towards another human being. Robbery, and indeed an intent to rob when accompanied by an assault, constitutes a crime against the person and robbery against the person’s property rights. In this case, the person having custody was not the owner of the property. In that sense, the victim’s employer would also have been a victim.

27 The crime against the person is constituted by putting the person in fear through threat of violence to such a point that he would surrender against his will property to the robber. There is no doubt in the account that Mr Powick gives through his comments that he was terrified, and there is no doubt he had every reason to be terrified, particularly given the remarks of one of this offender’s co-offenders.

28 In this case, the offender secured his advantage through his violence by presenting wheel braces and numbers to his victims. In doing so, he demonstrated his ruthlessness and his willingness to be part of a ruthless gang by menacing the service station attendant, and by menacing and assault Mr Powick. Each of these offences involves the administration of serious violence to innocent third parties. The use of numbers by the offenders ensured they outnumbered each of their victims. Each victim was put at risk of serious injury.

29 Indeed, the assault upon the twenty-four year old security officer saw him struck on the back of the head with the wheel brace. That action exposed Mr Powick to a risk of traumatic head injury and there must have been a potential for brain damage. While this offender was not personally present at that assault, he had taken the opportunity to run into the shop and in that sense shares liability for the offence. He was a principal in the second degree, in that while the assault was commenced upon Mr Powick, two offenders including this offender, took advantage of Powick’s predicament to enter or try to enter the shop knowing their companions were assaulting the security guard who was responsible for the safety or welfare of the shop and its goods.

30 The offender’s role in the service station robbery was to support his co-offender who was armed with the wrench. He also seized and transported to the car the service station attendant’s personal laptop computer and MP3 player. These items represented five times the value of the money stolen.

31 The law has long regarded as vulnerable, persons who work one out in their business. The service station attendant was working one out. His vulnerability was heightened by the presence of more than one offender. The offenders being armed with wheel braces capable of inflicting injury to a victim when wielded by an offender or if thrown at the victim aggravate the criminality of these two offences.

32 This is not a matter in which De Simone has a role to play because, as I read it, these are not prohibited or dangerous weapons but simply wheel braces being used to inflict or capable of inflicting injury to a victim when wielded by one of the offenders or if thrown at the victim.

33 The criminality exhibited by these offenders is of a high level. No complaint of injury has been made, but the level of violence is very substantial. The fact that there are three serious offences committed within such a short time-span is indicative of an attitude of wanton unlawfulness. The value of the goods taken is not high, and no doubt was disappointing to the offenders, but is considerable nonetheless.

34 The commission of the offences on three targeted premises, their being committed well away from the bases where the offenders were residing, each offence being committed within a short time-span of the other, each offence being committed in the early hours of the morning when security and awareness would be minimal, the use of a stolen vehicle, the presence of several wheel braces and a firearm, and the collection of four willing offenders bespeaks a level of serious planning. Such planning reflects an increased criminality by comparison with an offence committed impulsively or opportunistically.

35 In evidence the offender said the stolen vehicle and three co-offenders turned up out of the blue. At the time, he said, he was pretty drunk. He was asked if he wanted to get some money, and he agreed. He says, had he been sober he would not have gone on with them. When he entered the vehicle he did not know it was to be with an armed robbery. He knew the various co-offenders. He was given the wheel brace by someone in the vehicle.

36 There was no cross-examination of that evidence. However, it must have been apparent, not only from the conversation but the presence of the wheel braces, balaclava and firearm, that robberies were planned and that the vehicle was on its way to a destination where these plans would be executed. This offender had plenty of time to consider his position and withdraw if he so desired. Once he knew the offence was to be at Coffs Harbour, it must have occurred to him if he were to be caught he would, by virtue of his name, embarrass the one brother that seems to have been doing well in his own life.

37 I am satisfied the offender was not the leader or instigator of the decision to form the group and target the three sites. Nor did he at any time drive the stolen motor vehicle. He was, however, an active participant. His role was to enter each of the premises armed with a wheel brace. There is no evidence to suggest he possessed a wheel brace before he entered the vehicle, and I accept he was supplied with one by another of the offenders. His role though was a front man, entering the premises, searching for and capturing items. That places him as an important member of the group formed for these unlawful purposes. His criminality is of a serious order. Clearly the objective criminality requires a very substantial period of incarceration.

SUBJECTIVE MATTERS

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

FAMILY BACKGROUND AND SOCIAL DYNAMICS

39 This offender is a twenty-six year old indigenous male. Since November of 2004 he has been in a relationship with Lisa Duncan. She gave evidence in Court at Moree. I was impressed by her. The offender says during the six month period that he was with her he kerbed his drinking and committed no offences.

40 The offender has two sons, his six year old living in Kempsey and two year old living with Lisa Duncan. He also has an eight year old daughter living in Grafton. The daughter and the six year old son are from other relationships. He has seen neither of these children for some time. I gather the last time he saw the boy in Kempsey, was in 2004 when he was there. The two year old, as I say, is Lisa Duncan’s child. To his credit, he was providing child support for both the older children until his arrest.

41 Fernando himself has two brothers and five sisters. One of his siblings is a stepsister. George Fernando is the fourth eldest of the eight, if I have done my maths correctly. The siblings range from thirty-one years to nineteen. After his release from gaol in April 2004 he resided with a brother in Leichhardt for six to eight weeks.

42 The younger brother William, aged twenty-three, lives, I understand, a crime-free life in Coffs Harbour. The offender describes him as a Christian who plays sport, does not drink, and does not take drugs. It is clear to me this offender looks up to that brother, even though he is younger. The offender’s post release plans include moving from Moree to Coffs Harbour and linking up with this brother, trying out for football himself, and relying upon the brother for support. Lisa Duncan supports this plan. I have no evidence of the brother’s willingness to be involved with George Fernando.

43 The offender’s family life was marred by an alcohol-abusing, violent father. The offender claims he and each of his siblings did all they could to leave home as soon as possible because of the physical assaults received from the father. The parents’ de facto relationship ended two years ago, after forty years together. The offender has limited contact with his father and, from what I understand, it is not warm.

44 His mother, on the other hand, is one of the most important persons in his life. He recognises her as protecting him and his siblings from the father. Consequently, she was frequently the focus of his violence. From some of the insights I have had into the indigenous community, that role she assumed is not an isolated role but a role forced on many of the women in the Aboriginal community because of the existence of alcoholism and domestic violence.

45 There were two years when the offender was away from his family as he grew up. Kelly Reilly, a consultant psychologist, was told that he was at a boys’ home for six months. The balance of the time, it would seem, he spent living with an uncle in Kempsey. What impact that time away from the family had upon him has not been disclosed in the evidence, but he must have been only reaching puberty at that time and it must have been significant for him.

EDUCATION, SKILLS AND EMPLOYMENT

46 The offender attended preschool and primary school at Moree. Years 7 and 8 were done at Kempsey living with his uncle. He left school in Year 8. Why is unclear. He has not advanced his academic studies since leaving school. The decision to leave is strange because he claims he coped reasonably well and was not in trouble at school. It would have been a place where I would have thought he could have found some security and perhaps some intellectual stimulation.

47 His employment history is limited to CDEP work as a gardener for a couple of months over 1995 to 1996. His income stream has otherwise been unemployment benefits.

48 He claims good sporting skills. He is interested in pursuing football in Coffs Harbour when released. He certainly presents as a very fit young man who, if equipped, as other Aborigines are, with wonderful eye/hand coordination, could probably do well in sport.

HEALTH

49 Mr Fernando presents as a fit man of nuggety build, aged twenty-six. As far as one can tell, he enjoys good general health. He told Kelly Reilly, and the sadness of this is that it is a comment I often hear from indigenous prisoners, that he is the fittest he has ever been. Why it takes prison to make Aboriginal men fit is well beyond my comprehension. He exercises daily.

ALCOHOL AND DRUG ISSUES

50 When not in custody, George Fernando abuses alcohol, drinking ten to fifteen standard drinks daily. He was reaching a level of drunkenness nightly, he says.

51 He would also abuse marijuana, smoking 5 grams daily. Smoking at that level will ultimately cause, if he is vulnerable, brain damage. He has been abusing marijuana since the age of sixteen.

52 His evidence was that whilst in custody he has been attending AA meetings weekly. He claims to have been clean of drugs and alcohol whilst at the Tamworth Correctional Centre.

MENTAL HEALTH ISSUES

53 There are residual symptoms relating to his abusive alcohol-fused environment during his childhood. These include anxiety, drug and alcohol addiction. Kelly Ritchie diagnosed generalised anxiety disorder and substance abuse disorder. The substance abuse disorder appears to be in remission whilst he is in custody. The real issue is whether he will resume addictive practices upon his return to the community.

54 Lisa Duncan, fortunately, does not abuse drugs or alcohol. That fact, coupled with the fact that he has been attending AA, offers some hope that he may remain drug and alcohol free. Particularly may this be so if he links up with his brother in Coffs Harbour.

CRIMINAL HISTORY

55 This offender first came before the courts in 1993 as a twelve year old for attempting to steal a motor vehicle. He received his first custodial sentence in 1995, a control order, when aged thirteen. There was another control order made against him in 1997, when he was aged sixteen, for a raft of offences.

56 His first offence as an adult occurred in 2000 when he was aged eighteen. He was gaoled for three months. In 2001 he was gaoled for six months. In July of 2003 he was gaoled for nine months. In 2004 he was gaoled for two months. The offences I am dealing with occurred within two months of his release in 2004.

57 All of his offending to date has been dealt with in the summary jurisdiction. Many relate to illegal use of motor vehicles, driving offences, common assault, intimidation. These offences, regrettably, are by far and away the most serious he has committed to date.

ATTITUDE TO OFFENCES

58 The offender acknowledged these offences constitute his most serious offending to date. He claims his motivation was to obtain money to further his drinking and drug abuse. I do not regard the drinking and marijuana abuse to have any causative link with his offending.

59 He was invited into the group of offenders. His evidence is he would not have committed the offence but for the invitation.

60 He received some money, which I have no doubt he spent unwisely on alcohol and/or probably marijuana.

61 Since being in custody he has sought to deal with his alcohol issues through AA. I am satisfied there is insight by him into his offending behaviour. I am satisfied his plea of guilty is made as acceptance of responsibility for his criminal conduct. I accept his efforts at rehabilitation whilst in custody demonstrate a real desire to change because of his serious criminal offending.

62 He says his motivation to reform is driven by his desire to connect with his younger son and to resume a lawful life with his partner Lisa Duncan.

PLEA OF GUILTY

63 The plea was entered at the earliest available opportunity.

COOPERATION WITH POLICE

64 This offender was arrested for these matters two years after they occurred. He agreed to be interviewed by police. While there is evidence he sought to minimise his involvement, once confronted with evidence or apparent knowledge by the police of the facts, the offender assisted in their inquiries. In so doing, he strengthened the crown case.

65 Further, he nominated in the course of the interview others by name of his co-offenders. What value, if any, that was to the police has not been disclosed in the evidence.

66 The offender himself has come to light because of what is called a cold hit DNA profile match. Police intelligence has, at very least, become more informed as a result of his cooperation with them.

67 There is no evidence of any further arrests, however. Nor has there been any approach to this offender by investigation or prosecutorial authorities. Nonetheless, I do propose to increase the utilitarian discount I would give for the early plea from 25 to 30 per cent, taking into account the nature of his cooperation with police and his apparent contrite response to his offending.

REHABILITATION PROSPECTS

68 This offender’s rehabilitation prospects are closely linked to his capacity to remain drug and alcohol free upon his release or, at very least, to contain his drug and alcohol use within modest parameters.

69 I have pointed to two positive factors; his partner does not abuse drugs or alcohol, and he has maintained weekly contact with AA.

70 There are other positive factors pointing to rehabilitation. His partner is supportive of him. He has not heard from his mother since being at Tamworth. I understand she is an important person to him, and efforts should be made to reconnect this offender with the mother so that he can get support from her. He has good physical health. There do not appear to be any anti-social drivers in his psychological profile. He still is relatively youthful. He has begun to think about his post release plans, recognising he may be vulnerable to re-offending if he remains in Moree and, therefore, plans to move to Coffs Harbour. He has accepted responsibility for his acts and has sought to advance his rehabilitation since then. There was a six month crime-free period when he first commenced with Lisa Duncan. That appears to have been interrupted by his arrest.

71 On the negative side, he has not approached, I am told, the D and A counsellor at gaol. Whether that is because of shyness, some personal conflict or an unwillingness to face the alcohol issues is unclear. In the past when offered D and A counselling he has demonstrated unreliability. He has failed to take part in the past in any community-based opportunities assisting him to reform.

GENERAL DETERRENCE

72 The law requires that I factor into the ultimate sentencing disposition for these offences consideration of general and personal deterrence. In modern Australian society there is a very extensive raft of criminal laws passed by the State and Federal Parliaments. The chief purpose of the criminal law put in place by Parliaments is to deter those tempted to breach the provisions of that law. Parliament does that by prescribing maximum penalties for those who engage in conduct prohibited by the criminal law. I will come in a moment to what the maximum penalties are for these offences.

73 Consequently, when a person is sentenced for a breach of the criminal law, such as George Fernando is today, he is exposed to the possible maximum penalty provided by the statute breached. Sentencing for breaches of the criminal law requires the sentencing judge to keep in mind those general deterrence aims of the criminal law for the community at large by keeping in mind the maximum available sentence and the deterrent purpose of those sentences. There is also a specific deterrence aimed at individuals likeminded to the offender, such as the three other men in the motor vehicle who, but for such deterrence, would be willing to commit crimes similar to those for which this offender is to be punished. Finally, there is a component of deterrence personal to the offender with a view to deterring him from re-offending.

74 The maximum penalty for each of these offences that I must keep in mind is twenty years imprisonment.

75 Taking the Form 1 matters into account, there are fifteen now discrete matters on the Form 1. Two of these fifteen were offences committed in conjunction with these two offences. I have already referred to them. Of the remaining offences, twelve occur in Moree between 13 May 2005 and 6 June 2006. Of that group I am satisfied, upon conviction, gaol terms would have been imposed in respect of one, and possibly two. A further charge relating to attempted larceny of a motor vehicle in Tamworth may also have attracted a gaol term.

76 The proper approach to Form 1 matters was set out by the Chief Justice in a guideline judgment of the Attorney-General’s reference number 1 of 1999. The Chief Justice speaking for the court made clear that there was an approach to be taken which would result in an increase in penalty. In speaking about that approach spegielma said:

“The court does so by giving greater weight to two elements which are always materially in the sentencing process. The first is the need for personal deterrence which the commission of the other offences will frequently indicate ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to exact retribution for serious offences which...are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence.”

CONCURRENT SENTENCES

77 I am imposing concurrent sentences for the two offences. However, so that the total criminality of the two offences is properly reflected, the sentence for the first offence will be driven upward further, that is, on top of the initial upward movement caused by the Form 1 matters. These offences should be concurrent. They represent the one episode of intense criminal conduct by the four occupants of the stolen vehicle.

PARITY

78 No issues of parity arise. As far as I am aware, no other offender has been arrested, charged or sentenced for these offences.

CUSTODIAL HISTORY

79 This offender was arrested for these matters on the second anniversary of the offences, namely, 6 June 2006. At that time he was in custody on some other matter, it would seem.

80 On the material before me, however, his custody on his matter is said to backdate to 15 April 2006. Consequently, his sentences will each commence from that date.

SPECIAL CIRCUMSTANCES

81 This is a case in which the principles enunciated by Wood J in the case of Stanley Fernando (1992) 72 ACrimR 58 at 62-63 have some application. The subjective features, as reviewed by me, satisfy me that George Fernando comes from an Aboriginal community in which alcohol abuse and violence were ingrained, impacted upon his upbringing, the values that he now possesses, the chances he had of advancing himself, and the substantial social difficulties he has encountered.

82 While I recognise that he has been incarcerated before and is currently incarcerated at Tamworth among other indigenous prisoners, principle G has some resonance in this case. While I note it cannot be said George Fernando is an Aboriginal with little experience of European way, he qualifies for principle G by reason of his deprived background and also by reason of his being disadvantaged by reason of social and economic factors arising from his Aboriginality.

83 I note principle A requires application of the sentencing principles, regardless of an offender’s membership of ethnic or other grouping.

84 I note also the relationship between the head sentence and the non-parole period imposed by Wood J on Stanley Fernando. In today’s sentencing language such a result would only be achieved by a finding of special circumstances. Another feature to be noted is that the sentenced expressed, as it was in 1992, required a decision of the Parole Board as to the timing of the release of Stanley Fernando. In other words, his release was not automatic.

85 Likewise, I intend that the sentence I set shall require oversighting by the Parole Board as to the fitness of this offender for ultimate release. This approach seems to me an appropriate means to give effect to principles A, B, E, F, G and H of the reported Fernando case.

86 Other reasons for finding special circumstances include the relative youth of this offender. This will be the longest sentence this offender has served. His post release plans incorporate a move to a new community. He and his partner clearly will need substantial time and resources to settle into that community. His rehabilitation has better chances of being accomplished within the community than is likely to be so whilst he is in custody.

87 It is an effective means of complying with s 3A(d) and s 5(1) of the Crimes (Sentencing Procedure) Act without derogating from other obligations imposed by those sections. So far as the term of imprisonment is concerned in s 5(1), bearing in mind that the section speaks of imprisonment being a sentence of last resort, I have taken it to mean the serving of a term of imprisonment as distinct from imprisonment as encapsulated by s 12 of the Crimes (Sentencing Procedure) Act.

APPLYING THE UTILITARIAN AND OTHER DISCOUNT

88 For the early plea and other matters referred to, I indicated I would give a discount of 30 per cent. I also indicated that the demands of totality and the taking into account of the Form 1 matters will drive the sentence upwards. But for the plea of guilty, I would have set a term of imprisonment for the first offence of nine years; that is, for the robbery in company. That sentence will be discounted by 30 per cent, giving an overall sentence of six years, three months and fifteen days.

HIS HONOUR: Would you stand, please, Mr Fernando.

89 George James Fernando, I convict you of the offence that you on 6 June 2004 at Toormina robbed Corey King at the Bogas service station in Coffs Harbour of certain property, namely $600 in cash, a laptop, and MP 3 computer player, which was the property of Corey King and Bogas service station, while you were in the company of other offenders. I set a non-parole period for that offence of three years, three months and fifteen days to expire on 29 July 2008 and a balance of term of three years to expire on 29 July 2011. The earliest eligible release date you have is 29 July 2008.

90 For the other offence that you on 6 June 2004 at Sawtell in the State of New South Wales did assault Terry Powick with intent to rob him of certain property, to wit motor vehicle and cigarettes, whilst being in the company of two other offenders, you are convicted. For that offence I sentence you to a fixed term of three years imprisonment, and that is a figure that is arrived at taking into account a discount, to date from 15 April 2006 and to expire on 14 April 2009. Your first eligible date for release is 29 July 2009.

91 Whether you are released on that occasion or not will be a matter for the Parole Board, not for me. I have made that clear in the judgment. For you to be released at that time, you will need to impress the Parole Board with your conduct from now till then. They will look at what you have done in prison to reform yourself and how you have managed to, if you do, how you have managed to stay out of trouble.

92 I should note that I have taken into account, in setting that first sentence, the matters on the Form 1 and totality.

93 The offender can be returned to his custody.

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