R v Haggart and Brooks

[2021] NSWDC 406

District Court

New South Wales

Medium Neutral Citation:

R v Haggart and Brooks [2021] NSWDC 406

Hearing dates:

18/11/20, 28/1/20, 7/5/21, 25/5/21

Date of orders:

25/5/21

Decision date:

25 May 2021

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Haggart:

Convicted and sentenced to an aggregate term of imprisonment of 7 years 10 months with a NPP of 4 years 10 months (25/7/20-24/5/25).

I find special circumstances.

The indicative sentences are (25 percent discount for plea for each):

GBH with intent – 6 years with NPP 3 years 8 months (Form 1 taken into account).

Aggravated robbery – 3 years

Possess unauthorised pistol – 2 years 6 months with NPP 1 year 6 months.

Brooks:

Convicted and sentenced to imprisonment for a term of 6 years 6 months with a NPP of 4 years (25/6/20-24/6/24).

I find special circumstances.

I take the Form 1 into account.

5 percent discount for plea.

Catchwords:

Crime – Sentence – Aggravated robbery – Possess unauthorised pistol – Causing grievious bodily harm with intent

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Firearms Act 1996

Cases Cited:

Azzi v R [2008] NSWCCA 169

Bugmy v The Queen [2013] 302 ALR 192

R v Henry [1999] 46 NSWLR 346

Category:

Sentence

Parties:

NSW DPP – Crown
Ryan Eric Haggart – Offender
Dean Aaron Brooks - Offender

Representation:

Ms M Masanovic for Crown
Mr McGrath for Haggart
Mr Woodbury for Brooks

File Number(s):

2019/309197, 2020/132804, 2019/30928

sentence

1. Mr Ryan Haggart and Mr Dean Brooks are to be sentenced in relation to a number of offences. Mr Haggart is to be sentenced for three offences arising out of two separate incidents, the first incident having occurred on 16 September 2019 which involved the following offences: Firstly, an offence of aggravated robbery under s 95(1) of the Crimes Act 1900 which attracts a maximum penalty of 20 years' imprisonment. Secondly, an offence under s 7(1) of the Firearms Act 1996 of possessing an authorised pistol which carries a maximum penalty of 14 years' imprisonment, as well as a standard non-parole period of four years. The third offence on which Mr Haggart is to be sentenced is one under s 33(1)(b) of the Crimes Act 1900 of causing grievous bodily harm with intent. That is an offence which carries a maximum penalty of 25 years' imprisonment and attracts a standard non-parole period of seven years.

2. Furthermore, in sentencing him for that offence he asks that I take into account on a Form 1 document a further three offences, being an offence of resist police in the execution of duty on 3 October 2019, an offence of aggravated break, enter and steal in company, also on 3 October 2019, and an offence of knowingly be carried in a conveyance without the consent of the owner between 30 September and 3 October 2019.

3. With respect to Mr Brooks, he is to be sentenced in relation to the same s 33(1)(b) offence of causing grievous bodily harm with intent, which attracts the same maximum penalty and standard non-parole period that I have referred to already. In addition, Mr Brooks asks that I take into account in sentencing him on that offence a further offence of aggravated break, enter and steal in company, which is on a Form 1 document, and which occurred on 3 October 2019.

4. Of course the maximum penalties and where applicable, standard non-parole periods, are important guideposts in the sentencing exercise to which I have had regard.

5. Mr Haggart pleaded guilty at the earliest opportunity and I intend to allow a 25% discount on account of that plea and its utilitarian value. In Mr Brooks' case a plea of guilty was indicated on 1 April and entered on 8 April 2021, ahead of a trial set for 12 April 2021. In those circumstances it is agreed that the appropriate discount under s 25D(2)(c) is 5%.

FACTS

6. Agreed statements of facts have been placed before the Court and in summary the facts are as follows.

7. Dealing firstly with the offences of 16 September 2019 which concern Mr Haggart only. These two offences occurred on that date in the vicinity of a McDonald's restaurant at Lake Haven Shopping Centre which the offender had attended in the company of Dean Brooks and Cody Reid. It is not suggested in the facts, however, that either of those persons were involved in any of the offending behaviour that I am about to describe. The facts of the aggravated robbery are as follows. At about 7.40pm the two victims, 17 year old Anton Crum and 20 year old Julian Paine were sitting in a Mazda MX-5 vehicle which was parked in the vicinity of a number of restaurants. Whilst sitting in the car Mr Crum made eye contact a number of times with the offender Mr Haggart who was walking along a footpath. This apparently led to the offender Haggart approaching the passenger side of the Mazda where he put his hand on the door handle, at the same time as Mr Crum opened the door.

8. The offender then said twice "Is there something funny about what I'm wearing?" to which Mr Crum replied "No man". The offender then said, for some reason which is not disclosed, "Do you want to have a crack?" to which Mr Crum replied "Sorry, no". After this the offender said "Give me your chain lad" which Mr Crum agreed to do, but while he was attempting to take off his silver neck chain he was punched by the offender in the face, after which the offender reached into the vehicle and pulled the chain off the victim, snapping it in the process. The offender then walked to the driver's side of a Mazda CX-7 which was occupied by his associate, Cody Reid, and which was parked behind the vehicle in which the victim was seated. Those are the facts of the aggravated robbery offence, the circumstances of aggravation being the use of corporal violence.

9. After returning to the other vehicle the offender deposited the chain, which he had stolen from Mr Crum, and then retrieved an imitation silver pistol. He then walked back towards the driver's side of the vehicle in which the victims were located, which resulted in the driver Mr Paine reversing quickly from the parking space. As the vehicle came to a stop both victims saw what they believed to be a silver pistol in the offender's hand which he pointed at the vehicle. Paine then accelerated and drove out of the car park before driving to Toukley Police Station while Mr Crum called triple-0. Police obtained CCTV footage from the McDonald's restaurant and from Lake Haven Shopping Centre, and police later received information suggesting that the offender Mr Haggart was a suspect for the offences.

10. In February 2020 police attempted to interview him when he was in custody at South Coast Correctional Centre, however he declined an interview. Subsequently police obtained recordings of telephone calls made from custody by the offender to Cody Reid. The relevant content of those calls is set out in the agreed facts, and included the following:

11. In a call on 9 March 2020 the offender Mr Haggart said during that call "Cops come to see me the other day", "Remember when I robbed that cunt in the RX8", "There's no evidence so I'll take it to trial", and "Little poofter put charges on me". About six days later on 15 March in another call the offender said:

“You know when I pulled the thing on that cunt in the car park babe, coppers come the other day for that. The little dog rang the coppers on me. Remember I punched him in his mouth and I took the chain and I went to give it to Carter, the silver one, and he said 'I don't want it, I don't want it'.”

12. Also on 26 April 2020, in another call, Cody Reid was heard to say "The coppers came here the other morning", to which the offender replied "What for?", to which Cody Reid said "For a robbery at Lake Haven". In response to which the offender said "Ah yep, the little dog…what? Wasn't me", and later in the call said "Oh yeah, they already came and seen me for that." Relevantly, later in the call the offender also said "If I'm not interviewed there's no case, you know what I mean. They're gronks. I told them it had nothing to do with you. Said self-defence mate." There are some other aspects of that call set out in the facts, but the relevant parts are those that I have just summarised, which clearly involved admissions by Mr Haggart to the robbery offence that I have referred to. The handgun was later located and after examination was confirmed to be a replica pistol cap gun. Nonetheless, photographs attached to the statement of facts demonstrate that it was a realistic looking replica.

13. Turning then to the facts of the offences of 3 October 2019, which concern both offenders, the victim in that matter was a Mr Clive Leong who lived with his wife in a double storey townhouse in St Marys. On the morning of the offence, 3 October 2019, the victim was sleeping in an upstairs bedroom. Around 6am the victim's wife left the unit to attend work. When she left, the roller door to the garage was closed but not locked and the interior sliding door from the garage into the house was also closed but not locked. At about 8am the victim was woken by a crashing sound. He then heard footsteps coming up the stairs closer to his bedroom and he could hear his dogs barking downstairs. The victim, who was still in bed, then saw the offender Mr Haggart wearing a hi-visibility jacket or jumper in the hallway. The victim shouted "Who are you?" and the offender Haggart ran downstairs and the victim ran after him.

14. The offender Mr Haggart ran to the garage in the premises and entered the front passenger seat of a motor vehicle which was parked outside the victim's townhouse but partially reversed into the garage. At that time Dean Brooks was seated in the driver's seat of that vehicle. The victim ran to the vehicle while yelling over and over again "Who are you?" and "Why are you in my house?". When he got to the vehicle he used his hand to bang repeatedly on the driver's side window. The victim then overheard Mr Brooks say something to Mr Haggart and then heard Haggart say the words "He is alone, let's kill him." The two offenders then got out of the vehicle. At the same time one of the neighbours heard the victim screaming "Who are you?" and calling out for help. The neighbour also saw two the offenders carrying the victim by his hands and feet into the victim's home and closing the door behind them. The neighbour called police. In his triple-0 call he told the operator:

“Two guys…they were hitting the man who owns the flat next door to us…they dragged him inside. They locked the door. The guy's being beaten…the man was yelling for help.”

15. Inside the home the victim was on the lounge room floor curled up in a foetal position and screaming for help. He could feel someone pulling on his arm while he was kicked in the ribs and someone stomped on his head. The agreed facts indicate that the victim could feel blood dripping from his face and nose while screaming for help over and over again. The victim felt pain all over his body and was repeatedly hit on his head and torso and lost consciousness for a period of time. Brooks then went upstairs and Haggart followed, taking the victim with him, while the victim continued to yell for help. Haggart took the victim to the bedroom and told him to sit on the bed after which he punched the victim in the head and pushed him onto the bed. At that time Brooks was also in the bedroom unplugging a gaming console. Haggart yelled at the victim "You sold drugs to my sister" but the victim yelled back "I don't know you or your sister." Haggart also said to the victim "You took money from my sister", while the victim kept yelling in the hope that a neighbour would call police.

16. Haggart then started to hit the victim again to the point where the victim ended up face down on the bed from the force of being punched. Both offenders kept asking the victim "Where are the drugs?" and Brooks demanded "Where is your money?" to which the victim replied "My wallet is downstairs". Brooks also asked the victim for the PIN code to his bank cards and the victim stated a false number. While the victim laid on the bed, the two offenders went through drawers in his bedroom. One of the offenders said "Let's kill him" while they spoke to each other about Haggart's sister. Haggart then said to the victim "We're going to kill you, then wait for your partner to come to find out where the money and the drugs are."

17. The two offenders then left the bedroom and the victim could hear one of them in his computer room. Shortly after, the victim got up off the bed and looked unsuccessfully for his mobile phone and also for an object with which the protect himself. The victim then went to the top of the stairs to try to get out of the house but Haggart was standing in the hallway and grabbed him and punched him to the face at least twice. While this struggle took place Brooks started to punch the victim in the face also and the victim lost consciousness. When he regained consciousness he was lying at the bottom of the stairs. He could hear that the two offenders were still in the house.

18. Police arrived shortly after. As they approached they heard screaming and loud banging noises. The victim opened the door for police who immediately saw that he was bleeding and unsteady on his feet. Police also saw the two offenders running through the rear door of the house. Police ran to a side gate where they saw the two offenders carrying numerous items. The offenders turned around and ran back towards the rear of the house where Haggart dropped a number of items and Brooks jumped the fence. Although Haggart also tried to jump the fence, police apprehended him and a struggle took place in which Haggart resisted police, throwing his arms, legs and body around and trying to run off, refusing to put his hands behind his back, despite numerous requests. He was eventually placed under arrest and cautioned.

19. He yelled to police "He shouldn't be selling fucking drugs to kids…fucking selling drugs to my sister" and similar comments. The offender Haggart's actions in resisting police is the subject of the sequence 4 charge which is to be dealt with on a Form 1 document. When police asked Haggart about the other male he told them that the person's name was Jake but he did not know his last name, and that he had just picked Haggart up. At the time of his arrest, Haggart was wearing a yellow fluoro jumper which had blood on it. When searched, his pocket was found to contain the victim's wallet. Haggart was taken to St Marys Police Station where he declined to be interviewed.

20. The items taken by the offenders from the victim's home were found in the yard at the townhouse of the victim. They included a handbag, Xbox console, laptop computer, a knife, a man's wallet, an iPad, a shoebox with jewellery inside and other assorted electrical components. Witnesses in the area reported seeing Brooks jumping over fences and he was eventually located in the yard of another house in St Marys where he was arrested. At the time of his arrest he was wearing a purple T-shirt. However amongst his belongings was a white T-shirt which was covered in blood and sweat. At the time of his arrest Brooks appeared to be either drug affected or very tired, struggling to stay awake and mumbling. He told one of the police "I didn't even want to be there. I just got in the car up the road and next minute we're there." Speaking to another police officer he said again:

“I didn't even want to be there. That was not supposed to happen. Everything that happened at that place, no one was supposed to be there. I didn't want to do any of it.”

21. Whilst speaking with police Brooks was falling in and out of sleep at times and also crying. He was not interviewed by police at that time because police assessed that he was not in a fit state.

22. Forensic examination of the stolen motor vehicle located DNA consistent with that of the two offenders as well as Haggart's fingerprints. Brooks subsequently made admissions to being involved in the break-in and assault of the victim in a number of recorded calls from prison.

23. The victim, after being examined at Nepean Hospital was found to have the following injuries. A bruised and swollen nose; bruising to both sides of his forehead and both eyes; lacerations to the back of his head, one of which was about 8 centimetres and the other about 7 centimetres; three rib fractures; a fractured left orbital region of the skull; and tenderness in the right upper quadrant of his abdomen and left shin with an overlying graze.

24. Upon admission to hospital the victim received conservative management of his injuries initially, involving painkillers and chest physiotherapy for his rib fractures and incentive spirometry to assist his lung function while recovering from the rib fractures. The treatment received by the victim included 21 staples to close his scalp wounds. When initially admitted to hospital on 3 October 2019 the victim was advised to take "sinus precautions" which involved no nose blowing, keeping the head of his bed elevated and taking antibiotics due to the left orbital fracture. The victim also had diplopia, that is, double vision, on extremes of gaze. He was readmitted to hospital on 22 October 2019 for an urgent left orbital floor reconstruction. Titanium mesh was inserted at this time to reconstruct the left orbital floor fracture, and was necessary to restore the victim's vision and give him the chance of returning to full function.

25. A post-surgical complication, however, occurred which involved a defect in the lateral posterior aspect of the orbital floor with herniation of orbital content, and orbital fat. The victim was discharged from hospital on 23 October 2019.

26. The sequence 4 offence which is on a Form 1 in relation to Haggart is an offence of resist officer in the execution of duty, and is based on the offender's struggle with police when apprehended at the subject premises.

27. The offence by Haggart of knowingly being carried in a conveyance without the consent of the owner, which is also on the Form 1, is based upon the agreed fact that Haggart knew the car being driven by Brooks was stolen.

28. The offences of aggravated break, enter and steal in company which each offender asks to be taken into account on a Form 1 document are based on the facts already described involving the offenders breaking into the victim's house and stealing various items.

OBJECTIVE SERIOUSNESS

29. Of course in this sentencing exercise it is necessary for me to make some assessment of the objective seriousness of the various offences.

30. Firstly, in relation to the offences committed by Haggart on 16 September 2019, those being the aggravated robbery and possession of a pistol. Firstly, the maximum penalties, and in the case of the firearms offence, the standard non-parole period, clearly mark these as objectively serious offences. The aggravated robbery offence was of short duration, was unplanned and was not at all sophisticated. The violence was at a relatively low level and the value of the property was fairly low. No weapon was involved. In my view the objective seriousness of this offence lies towards the lower range, although not in the low range.

31. As to the firearms offence, the weapon I note was a replica rather than a real pistol, although it would have looked very real and threatening to anyone present at the time, which is no doubt why the offender retrieved it from the car. The offence described in the facts was of relatively short duration, however it is made the more serious by reason that the replica weapon was pointed in the direction of the car in which the victims were seated, which no doubt must have been a frightening experience for them. While I am conscious that the offence is one of "possession", the fact that the possession occurred in a context where the item was actually brandished in public, is a relevant circumstance. I do not consider that taking that circumstance into account involves any De Simoni error, given that the offence of possession and use of a pistol both carry the same maximum penalty under s 7 of the Firearms Act 1996. In my opinion this offence is comfortably above the low range but below the mid-range of objective seriousness.

29. In determining the appropriate penalty for the aggravated robbery offence I have had regard to the Court of Criminal Appeal guideline judgment in R v Henry [1999] 46 NSWLR 346. That guideline judgment related to armed robbery offences and identified a number of common features of such offences, and a suggested full-time custodial range of four to five years in the context of a late plea of guilty, attracting a 10% discount. Of course the offence committed by Haggart is not one of armed robbery, but the decision in Henry is still of relevance as a reference point. (See Azzi v R [2008] NSWCCA 169). As to the so-called Henry factors, I note the following:

30. The offender Mr Haggart was 24 and therefore fairly young at the time of the offence. His criminal history, however, cannot be described as limited. He was not armed with any weapon at the time of the robbery. It was an opportunistic and spontaneous offence rather than one that involved any planning. The violence was limited and involved a punch to the head and tearing the victim's chain from his neck. While the victim was not in a vulnerable position such as a shopkeeper or taxi driver, he was somewhat helpless given that he was sitting in a car and was unable to flee and had limited opportunity to defend himself. While the value of the chain that was stolen is not disclosed, I assume that its value was fairly limited. The plea of guilty was made at an early stage, unlike the somewhat late plea in the Henry decision. As I said, I have taken into account these Henry considerations as a reference point in determining the actual sentence, which I will indicate later in these remarks.

31. Turning then to the offence on 3 October 2019 with which both offenders are charged, and to which they have pleaded guilty. The offence of causing grievous bodily harm with intent carries a significant maximum penalty of 25 years, as well as a standard non-parole period of seven years. It must clearly, therefore, ordinarily be regarded as an objectively serious offence. However, the offence can cover a wide range of different conduct with varying consequences, and so it is important that I consider closely the circumstances of this particular case.

32. This particular offence involved a vicious attack which was not of short duration. The facts do not allow me to assess the duration of the attack, nor determine exactly when the injuries involving grievous bodily harm, which I regard as being a combination of the orbital fracture and the multiple rib fractures, were inflicted.

33. However, as the facts indicate, the victim was initially bashed by both offenders downstairs where he lost consciousness for a time. He was then dragged upstairs by Haggart, punched in the head again by Haggart, and then later by both offenders, before again losing consciousness, after which he awoke on the floor downstairs. Clearly this was a sustained attack which must have occupied a period of many minutes. I am not satisfied that the offence of inflicting grievous bodily harm was pre-planned by either offender. Rather, it was more likely in my view a reaction initiated by Haggart in response to the victim's actions in following Haggart downstairs, combined with Haggart's asserted belief that he was a drug dealer.

34. The offence was also accompanied by threats to kill the victim, and the facts attribute two of these threats to Haggart, and the third threat to "one of" the offenders. It also involved a threat by Haggart to wait in the house and confront the victim's partner so as to locate any money or drugs. Clearly the entire episode must have been a terrifying ordeal for the victim who was outnumbered while he was set upon by these two offenders. The offence is therefore aggravated by reason that the offenders were in each other's company. While there is reference in the facts to Haggart referring to the victim as a drug dealer, there is no evidence before me to support this assertion, and in any event even if the victim was involved in drugs, and even if he had supplied drugs to Haggart's sister, this provides no excuse for the events that I have described. I am satisfied, therefore, that the attack was unprovoked.

35. The offence was also committed in the victim's home where he should have been entitled to feel safe from being attacked in the vicious and cowardly manner that he was. It is also necessary that I have regard to the nature of the injuries inflicted to the victim. As is well-known the term grievous bodily harm means really serious injury, and can include a wide range of serious injury to the human body. The particular grievous bodily harm in this case involved three rib fractures, and more significantly, a serious injury to the victim's orbital region, which required surgery to restore the victim's vision and give him a chance at returning to full function. In my opinion the grievous bodily harm in this case is above the lowest form of injury capable of falling within that phrase, but below the middle range. Having regard to these matters and all of the facts, I assess the objective seriousness of this offence as being just short of the mid-range.

36. I note that in relation to each offender, and more particularly Mr Brooks, that there is evidence that there was likely some form of drug affectation in each of the offenders, and as I have said, more particularly Mr Brooks. In my view that provides perhaps some partial explanation for the offences, but it does not in any way mitigate any of the offences.

37. A Victim Impact Statement was provided to the Court from Mr Leong who was subjected to the attack in his house where he suffered grievous bodily harm. It was not submitted by the Crown that I should find on the basis of this Victim Impact Statement that the aggravating circumstance of "substantial injury or harm" is made out for the purposes of s 21A(2)(g). I therefore do not proceed on the basis of this potentially aggravating feature. Nonetheless, the Victim Impact Statement, which describes many and varied physical and psychological consequences that have resulted from the offence, is confirmatory of the Court's own expectation that the results of this attack and the grievous bodily harm that accompanied it are serious, and many of them will likely be with the victim for the remainder of his life.

SUBJECTIVE MATTERS

41. I turn then to consider subjective matters concerning each of the offenders. Firstly, Mr Haggart. Ryan Haggart is now a 26 year old man with Aboriginal heritage. His criminal history is reasonably extensive and does not entitle him to leniency. His background and personal circumstances have been placed before the Court by means of a psychological report and a psychiatric report, as well as oral evidence from Ms Sneddon who is a counsellor and who has known the offender since he was a child and is familiar with his upbringing.

42. Although the offender did not give evidence on sentence, there was no real challenge to the family background described by Ms Sneddon and in the two reports. That background involved an extremely chaotic childhood with parents who were addicts, from whom the offender was removed at a young age. After that, he suffered some physical abuse at the hands of his maternal grandfather, and was later sexually abused when in State care. I am satisfied that the evidence brings Mr Haggart within the principles discussed by the High Court in Bugmy v The Queen [2013] 302 ALR 192, and that his moral culpability is reduced somewhat by reason of that background.

43. However, in determining the appropriate sentence I must of course balance this against the importance of deterrence and the need to protect the community from violent actions such as those described in the facts. Another matter of some significance is the evidence from Ms Sneddon that in July of 2019, not long before the offences before the Court, Mr Haggart's father passed away. Ms Sneddon said that she was with Ryan when a decision was taken to turn off life support, and that after his father's death the offender was "a mess". In my view the consequences of the untimely death from a drug overdose of the offender's father provides context and some possible explanation for the offences before the Court. While that does not in any way excuse the offences, it is likely in my view that these offences involving anger and violence were in part a product of the offender's unresolved grief over the loss of his father.

44. I also take into account the diagnoses of Post-Traumatic Stress Disorder and major depressive disorder which are described in the psychological and psychiatric reports, and I accept that the existence of these conditions means that Mr Haggart's time in custody will be more onerous to a material degree. While I take this into account, I have balanced this consideration against the need to protect the community against the actions of a person who has repeatedly demonstrated the capacity to commit serious and, as the facts of these matters show, violent offences.

45. In relation to Mr Brooks I note that he is now 38 years of age and has a lengthy criminal history, although not for offences as serious as that before the Court today. He gave evidence in the sentencing hearing in which he described a childhood that was less than ideal. His natural father was essentially absent from his early life, and I note that his father passed away during the offender's current period in custody. The offender left home at about age 15 due in part to being subjected to some violence at the hands of a stepfather. He became involved in drug abuse from around this time, and attributes his criminal history largely to his drug problems. He said he has done drug rehabilitation in the past, but essentially only as a "ticket out of gaol" and claims that he has now reached a point where he wants to change this pattern and develop a better relationship with his children.

46. To his credit, he has completed some TAFE courses while in custody and would like to pursue a trade on his release, and to address his drug relapsing by some form of rehab. He said similar things to the author of the Sentencing Assessment Report, who notes the offender's willingness to undertake interventions to address his drug and antisocial issues.

47. In relation to remorse and prospects of rehabilitation, I note that in Mr Haggart's case the reports tendered on his behalf indicate that he expressed significant remorse. However, the weight I attach to this evidence is reduced, given that the offender gave no evidence on oath, and given that the Sentencing Assessment Report is somewhat contradictory of remorse and insight. Overall I find there is some, but limited, remorse.

48. The Sentencing Assessment Report assesses Mr Haggart as a medium high risk of reoffending, which, based on his history, seems to be a reasonable conclusion. His prospects of rehabilitation can at best be described as guarded, at least until he decides that he has had enough of returning to custody and makes a real effort to engage in treatment and counselling. It is positive, however, that Ms Sneddon has indicated that she and her organisation will provide the offender with some support on release.

49. In relation to Mr Brooks he expressed some remorse in his evidence saying that the offence "should not have happened". However, the weight I can give to this is diluted somewhat by the Sentencing Assessment Report which records that he failed to verbalise empathy or insight, and that his responses mainly concentrated on justifying and minimising his behaviour and placing blame on Mr Haggart. On balance I find that there is some, although limited, remorse in his case.

50. The Sentencing Assessment Report assesses Mr Brooks as a medium high risk of reoffending, which must in my opinion be correct, unless or until he can acquire the maturity and determination to remain drug free, to get a job, and to re-engage with his children. It is however positive that he has the support of a woman he described as his stepmother, and that he has an offer of accommodation on his release, provided that he stays off the drugs. Whether or not he can rehabilitate himself is entirely in his hands. At present his prospects in my view are uncertain.

51. Each of the offenders were on parole at the time of the offences, which of course is a significant aggravating feature that I have taken into account. Given that these two offenders are each to be sentenced in relation to the grievous bodily harm offence committed on Mr Leong, as well as the aggravated break, enter and steal offence on the Form 1 documents, it is important that I have regard to parity principles to ensure that the sentence imposed on one offender is not out of step with that imposed on the other such as to create a justifiable sense of grievance.

52. Each of the offenders engaged in serious violence, and I cannot determine who it was that inflicted the blows that led to the grievous bodily harm that Mr Leong suffered. It is therefore appropriate in my view to treat the two offenders as equally responsible for that violence and its consequences, given that they were acting in company. However, I am satisfied that Mr Brooks played a slightly lesser role than Mr Haggart in the sense that it was Haggart who initially suggested that the offenders get out of the car and "kill" the victim, as well as making other threats, and it was Haggart who dragged the victim upstairs and punched him while he was on the bed. I intend to reflect the slightly lesser role of Mr Brooks when compared with Mr Haggart in the sentences which I will shortly announce.

53. In doing so, however, I note that Mr Brooks is entitled only to a 5% discount as compared with the 25% that applies in Mr Haggart's case.

54. Clearly the penalties in this case must give considerable weight to the need for both personal and general deterrence. In reaching that conclusion and in determining the sentence in each case, I have however had regard to all of the factors in s 3A of the Crimes (Sentencing Procedure) Act 1999. I am satisfied that for the purposes of s 5 of that Act, in relation to both offenders, that no penalty other than full-time imprisonment is appropriate.

55. I have given consideration to the question of what commencement dates should apply with respect to the sentences of imprisonment. I note that each of the offenders have been in custody since 3 October 2019. In the case of Mr Haggart he has been bail refused on the cause grievous bodily harm matter since that time. However, his custodial status has not been due solely to that matter, because an existing parole was revoked from 3 October 2019 and he has also served two periods of imprisonment, one of three months and the other of two months, during his current period in custody. On my calculations he has spent just over eight and a half months in custody since 3 October 2019 that cannot be attributed to the revocation of parole or to either of the Local Court sentences. I intend to backdate the commencement of his sentence so as to take into account that period of about eight and a half months, and also make some allowance in his favour for the period in which he was serving the balance of parole. In my view it is appropriate to backdate his sentence by about ten months.

56. In Mr Brooks' case some of his time in custody since 3 October 2019 is also due to other reasons. Firstly, from 3 October until 22 November 2019 he served the balance of parole on an earlier sentence, and between 3 October 2019 and 2 January 2020 he served a three month sentence, and from 10 July 2020 to 9 January 2021 a six month sentence, each of those having been imposed by the Local Court. It appears, therefore, that he has spent just over ten and a half months in custody that cannot be attributed to the revocation of parole or to the Local Court sentences. I intend to backdate the sentence in his case by a period of about 11 months so as to give him the benefit of time served solely on this matter, and some although minimal adjustment for the period served after his parole was revoked. In my view only a minimal adjustment in relation to the balance of parole is justified, given that the offender has already received the benefit in the Local Court of a full backdate of the sentence imposed on 29 November 2019.

DETERMINATION

57. In relation to Mr Brooks, taking into account the matter on the form 1 document, and taking into account the 5% discount for the plea of guilty, I impose a head sentence of six years six months. I set a non-parole period of four years. I note that in determining that head sentence I commenced with a starting point of seven years head sentence from which the 5% discount was deducted. I of course also took into account the matter on the Form 1. The sentence will date from 25 June 2020. The head sentence will therefore expire on 24 December 2026, and the non-parole period on 24 June 2024.

58. In relation to Mr Haggart I intend to impose an aggregate sentence. In that circumstance I am required to nominate the indicative sentences that would otherwise have been imposed. The indicative sentences, after the 25% discount, are as follows. For the cause grievous bodily harm to Mr Leong, within intent, and taking into account the matters on the Form 1 document, a head sentence of six years imprisonment, and a non-parole period of three years eight months. I note that in determining that head sentence I commenced with a starting point of eight years from which I deducted the discount of 25%.

59. In relation to the offence of aggravated robbery of Mr Crum, the indicative sentence is one of three years, which is arrived at after a 25% discount from a starting point of four years. In relation to the offence of possess unauthorised pistol, the indicative term is two years six months with a non-parole period of one year six months, after a starting point of 3.5 years from which I subtracted the 25% discount. In Mr Haggart's case I have given consideration and applied principles of totality, given that I am sentencing him for a number of offences, and given the importance of not imposing a sentence which could be described as crushing, or one which might remove any room for rehabilitation. I have also given consideration to issues of concurrency and accumulation. I accept, as was submitted to me, that the matters for which Mr Haggart is to be sentenced were relatively close in time. However, it has to be said that they did involve two clearly separate incidents of criminal conduct, and in my view therefore there is a need for some degree of accumulation.

60. Having regard to all of those matters and to the various other matters I have referred to, I impose in Mr Haggart's case an aggregate head sentence of seven years ten months. I impose a non-parole period of four years ten months. Those will date from 25 July 2020. The head sentence in his case will therefore expire on 24 May 2028, and the non-parole period on 24 May 2025.

61. I have made findings of special circumstances in relation to each offender. In Mr Brooks' case, based upon the risk of institutionalisation. Based also on the need for his rehabilitation from drugs once he is released into the community. In Mr Haggart's case, again based also on the risk of institutionalisation, and also on his mental health and drug problems.

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Decision last updated: 17 August 2021