R v Hussein; R v Barghachoun; R v Manly; R v Riley
[2013] NSWDC 39
•31 January 2013
District Court
New South Wales
Medium Neutral Citation: R v Hussein; R v Barghachoun; R v Manly; R v Riley [2013] NSWDC 39 Hearing dates: 10 September 2012- 12 October 2012 Decision date: 31 January 2013 Before: Murrell SC DCJ Decision: Hussein: 8 years non-parole period. Total sentence of 12 years
Barghachoun: Effective non-parole period of 7 years, 6 months non-parole period. Total sentence of 10 years, 6 months.
Manly: 4 years non-parole period. Total sentence of 6 years.
Riley: 3 years, 6 months non-parole period. Total sentence 5 years, 6 months.
Catchwords: CRIMINAL LAW- Sentence- joint criminal enterprise- in company- attempt to steal- robbery armed with dangerous weapon- use a firearm without authority- fire firearm in public place- intentionally destroy property of another by fire- carried in conveyance taken without consent- relevance of mental disorder- moral culpability- extent of planning- prospects of rehabilitation. Legislation Cited: Crimes Act 1900 (NSW), ss 117,154A(1)(a), 97(2), 93G(1)(b), 19(10)(b)
Firearms Act 1996 (NSW), s 7(1)
Crimes Sentencing Procedure Act, ss 21A(2) & (3)Cases Cited: R v Henry [1999] NSWCCA 111 Category: Principal judgment Parties: The Crown
Ali Hussein
Imad Barghachoun
Ayman Manly
Andrew RileyRepresentation: Mr D Scully (Crown)
Mr T Jones (Hussein)
Mr R Kellar (Barghachoun)
Mr N Steel (Manly)
Mr A Radojev (Riley)
Office of the Director of Public Prosecutions NSW
Andrew Scali Solicitors (Hussein)
Gregory J Goold Solicitor (Barghachoun)
John B Hajje & Associates (Manly)
Jack Rigg Solicitors (Riley)
File Number(s): 2011/324305; 2011/268777; 2011/324302; 2011/268726
Judgment
After a four-week trial, in October 2012 a jury found the offenders guilty of committing the following offences on 19 August 2011:
| Offence | Provision of Crimes Act 1900 | Maximum penalty (years) | Offender |
| 1. Attempt to steal an airport shuttle bus | s 117/154A (1) (a) | 5 | Hussein, Barghachoun, Manly |
| 2. Attempt to steal a BMW vehicle | s 117/154A (1) (a) | 5 | Hussein, Barghachoun, Manly |
| 3. Robbery of Mazda sedan and contents armed with dangerous weapon | s 97(2) | 25 | Hussein, Barghachoun, Manly |
| 4. Steal number plates | s 117 | 5 | Hussein, Barghachoun, Manly, Riley |
| 5. Carried in conveyance | s 117/154A (1) (b) | 5 | Riley |
| 6. Robbery of truck and contents armed with dangerous weapon | s 97(2) | 25 | Hussein, Barghachoun, Manly, Riley |
| 7. Unauthorised use of firearm | s 7(1) Firearms Act 1996 | 14 | Hussein |
| 8. Fire a firearm in public place | s 93G (1) (b) | 10 | Hussein |
| 9. Intentionally destroy Mazda sedan by fire | s 19 (10) (b) | 10 | Hussein, Manly |
| 10. Steal Mazda bus | s 117/ 154A (1) (a) | 5 | Barghachoun. Riley |
The only offence to carry a standard non-parole period is that against section 7(1) of the Firearms Act 1996 (NSW), which carries a standard non-parole period of three years.
Barghachoun and Riley were arrested on 20 August 2011 and have been in custody since then. When the offences were committed, each was on bail. Barghachoun is yet to be tried for the matter for which he was on bail. The matters for which Riley was on bail were later withdrawn. The sentences imposed upon Barghachoun and Riley should commence on 20 August 2011.
Hussein and Manly were arrested on 11 October 2011 and have been in custody since then. At the time of the offences, Hussein was not on conditional liberty. His sentences should date from 11 October 2011. Manly had been released to parole on 4 May 2011 and committed the subject offences 3 1/2 months later. As a consequence of his arrest, parole was revoked with effect from 11 October 2011. The relevant sentence expires on 4 May 2014. The sentences that I impose on Manly should commence after 11 October 2011 and should take the revocation of parole and the reasons for revocation into account.
Victim Impact
The victim of the truck robbery continues to experience a high level of emotional trauma as a result of the robbery and the associated offences. Prior to August 2011, he enjoyed his job. In June 2012, he terminated his employment because it caused him too much stress. He continues to experience severe anxiety and he has difficulty finding enjoyment in any aspect of his life. Among other things, he is unable to enjoy the former pleasure of spending time with his children and grandchildren. In the witness box, the victim appeared to be extremely anxious. He was visibly shaking.
Facts
At about 9 pm on 19 August 2011, an unmarked Pantech truck left Bankstown with a valuable cargo, including mobile telephone handsets and foreign currency. The truck was to drive north along the Pacific Highway to Queensland.
Offences 1 and 2. At about 9:05 pm on 19 August, Hussein and Barghachoun entered a service station at Silverwater for the purpose of stealing a vehicle for use in the intended robbery of the truck. They wore hoodie tops that partially concealed their faces. Hussein wore a black and white scarf across his face. He approached the driver of an airport shuttle bus that had stopped at a petrol pump. He asked the driver for the keys to the bus. The driver refused the request and ran to the office of the petrol station. Hussein and Barghachoun then approached the driver of a BMW vehicle that had stopped at another pump. Barghachoun asked for the keys to that vehicle. The driver made an excuse and did not provide the keys. Hussein and Barghachoun ran from the service station. Manly had been waiting nearby in his dark blue Subaru WRX vehicle. Hussein and Barghachoun entered Manly's vehicle.
Offence 3. Manly drove to the Vittoria Coffee Warehouse, which was about a block away. A security officer was seated in his silver Mazda vehicle at the Warehouse entrance, waiting to be admitted to the premises. Manly stopped his vehicle behind that of the security officer. Hussein exited Manly's vehicle, armed with a Browning pistol. He opened the door of the Mazda and cocked the pistol. The security officer vacated the Mazda. Hussein drove the Mazda from the premises. The Mazda and Manly's Subaru travelled north up the Pacific Highway. After the vehicles reached northern Sydney, Barghachoun and Manly telephoned each other on a number of occassions. Inferentially, by that stage Barghachoun was in the stolen Mazda. From about Ourimbah, the vehicles travelled in convoy until they reached Bulahdelah.
Offence 5. On the northern side of Sydney (possibly in the Pennant Hills area), Riley was picked up. Initially, he may have been in Manly's vehicle (later, his backpack was found in Manly's vehicle). During the journey (possibly just south of Bulahdelah, where two vehicles were observed beside the Highway), Riley entered the stolen vehicle. The jury found that, at a time when he had an opportunity to exit the vehicle, Riley knew that the vehicle had been stolen but voluntarily remained a passenger in the vehicle.
Offence 4. At a Highway service station, Hussein and Barghachoun (the occupants of the stolen vehicle) stole numberplates from a parked vehicle and attached them to the stolen Mazda for the purpose of disguising it.
Offences 6, 7 and 8. At about 11:30 pm, in an area of roadworks that was just north of Bulahdelah, the stolen Mazda overtook the Pantech truck, blocked its path and forced the truck driver to stop the truck. Hussein, Barghachoun and Riley were in the stolen Mazda. Hussein exited the stolen Mazda, armed with the Browning pistol. He fired a shot towards the truck windscreen, striking the passenger side of the windscreen (Offence 7). He walked to the driver's door, brandishing the firearm and indicating that the driver should leave the truck. The driver got out of the truck. When he began to walk towards the rear of the truck, Hussein fired a shot at the ground (Offence 7) and directed the driver to the side of the road near the front of the truck.
He indicated that the driver should kneel on the ground. Husssein pushed the firearm into the driver's back and directed him to remain in a kneeling position. On two occasions, when other motorists stopped their vehicles behind the truck, Hussein fired the pistol at the ground, indicating that they should leave (Offence 8). Barghachoun and Riley entered the rear/cargo area of the truck. Manly was (at least) waiting in the vicinity for the purpose of assisting if required.
Offence 10. Barghachoun and Riley drove the Pantech truck north up the Highway for a short distance. They then turned off the Pacific Highway and drove towards a waste depot. Inadvertently, they drove the truck into a roadside culvert. Forced to abandon the truck, they walked a considerable distance through bushland, south towards Bulahdelah. On the northern side of Bulahdelah they came to a sawmill. They stole a bus belonging to the sawmill, which they drove north - east to the Forster area. At about 3 am on 20 August, police arrested them. When he was taken into police custody, Barghachoun appeared to be withdrawing from heroin use.
Offence 9. After the truck robbery, Hussein and Manly returned to the town of Bulahdelah. At about midnight, one of the offenders ignited the stolen Mazda vehicle. It was destroyed. Hussein and Manly entered Manly's vehicle and drove around Bulahdelah for some time, hoping to rendezvous with Barghachoun and Riley. Eventually, they left the Bulahdelah area.
Barghachoun
The offender was 42 years old at the date of the offences. He has a long criminal record, including convictions for armed robbery in 1994. The cumulative effect of the sentences imposed for those offences was that Barghachoun was imprisoned for seven years from January 1995 to January 2002, after which he served an additional term of two years and six months in the community. There was a break in offending behaviour until 2007 when, for offences of deal with property suspected to be the proceeds of crime, he received a 16 months sentence with a 12 months non-parole period from 11 August 2008 to 10 August 2009. For an offence of attempt to dispose of property, he received a 12 months suspended sentence from 19 January 2010. During periods of incarceration, the offender committed a number of prison offences, including offences related to illicit drug use.
Counsel for Barghachoun submitted that there was a causal relationship between the offender's drug addiction and his criminal behaviour such that his drug addiction reduced his moral culpability. Given the level of planning involved in the principal offence, I do not accept the submission.
It was submitted that there were reasonable prospects of rehabilitation in that the offender had informed his niece that he wanted to address his drug abuse problem. In the face of an apparently long-standing drug addiction that seemingly continued during periods of incarceration, a stated intention to reform is no evidence that there are reasonable prospects of rehabilitation. On the other hand, the lack of criminal activity during the period 2002 to 2007 is some evidence that the offender is capable of remaining crime free for an extended period.
All offences committed by Barghachoun prior to the truck robbery were part of a plan to rob the truck. They were not committed impulsively. Barghachoun was very much involved in the planning; from the outset, he was a participant, and he made many telephone calls to other participants.
Offences 1 and 2 were committed in company. Potentially, they were more frightening from the victims' perspective. As it transpired, neither victim was sufficiently intimidated to surrender his car keys. Barghachoun and Hussein were disguised by the hoodies that they were wearing.
In relation to Offence 3, Barghachoun was not the principal offender. He is guilty because he was part of a joint criminal enterprise. He was involved in planning the robbery (although it was probably very last minute planning, necessitated by the failure of Offences 1 and 2), he was present at the scene of the robbery (inferentially, a matter of metres away from Hussein) and he was available to assist Hussein.
Offence 4 was a relatively minor matter.
Offence 6 was an objectively serious armed robbery. It was planned. The Pantech truck was unmarked and carried a valuable cargo. The offenders must have been aware of the cargo and targeted the truck because of the cargo that it was carrying. The offenders were prepared to drive a considerable distance up the Pacific Highway to rob the truck. Some hours before the robbery, they attempted to steal a vehicle for use in the robbery. As they travelled up the Highway, they maintained telephone contact. The offence was committed in company; the truck driver was aware that Hussein was accompanied by at least two other people.
The prosecutor relies on s 21A (2) (g), and submits that the emotional harm to the driver was significantly worse than one would expect for an offence of this nature. I accept that the driver suffered very serious emotional harm. However, the offence was very serious. In the absence of expert evidence, I am not satisfied beyond reasonable doubt that the emotional harm that he suffered was significantly worse than one would expect from an offence of this nature.
Other relevant aggravating features under s 21A (2) are the fact that the offender was on conditional liberty (bail) at the time that he committed all the offences and he has a record of previous convictions for offences of the same nature (serious offences of dishonesty).
Offence 10 was unplanned. Presumably, the offenders did not intend to lodge the truck in the culvert. Offence 10 was an opportunistic offence; having walked a considerable distance through bushland, the offenders came upon the sawmill bus.
In relation to Offences 3 and 6, it is necessary to consider the guideline judgement in R v Henry [1999] NSWCCA 111. Offence 3 was more serious than the offence committed in Henry in that it was an offence against s 97(2) involving a dangerous weapon, rather than an offence against s 97(1), the offender is an older person with a significant prior criminal history, the offence was committed in company, a substantial item was taken (a car, not a small amount of money) and there was no plea of guilty. On the other hand, the victim was not in a particularly vulnerable position and the offence involved limited planning. Offence 6 was much more serious than that committed in Henry. It was an offence against s 97 (2), it was committed in company, there was significant planning, the offender is an older person with a significant prior criminal history, a substantial item was taken, the victim was in a vulnerable position (a truck driver driving in the country late at night) and the offender was found guilty after trial.
I impose the following sentences:
| Offence | Sentence |
| Offences 1 and 2 | 2 years fixed term, accumulated by 1 year on the sentence for offence 10. |
| Offence 3 | 6 years fixed term concurrrent with 1 and 2 |
| Offence 4 | 1 year fixed term concurrent with 1, 2 and 4 |
| Offence 6 | Non-parole period of 5 years 6 months accumulated by 1 year on 1,2, 3 and 4. Balance of 3 years. Expires 19 August 2022 |
| Offence 10 | 2 years 6 months fixed term. |
Effective sentence: 7 years 6 months non-parole period, 3 years balance of term.
Special circumstances: need for lengthy supervision to integrate into the community/address institutionalisation, and address long-standing substance abuse issues.
Hussein
In relation to the most serious offences, the robberies, Hussein was the offender who took the most active role.
As to Offences 1 and 2 (the attempts to steal the airport shuttle bus and the BMW vehicle), there is little to distinguish the roles of Hussein and Barghachoun. Unlike Barghachoun, at the time of the offences Hussein was not on conditional liberty and he does not have a history of offences of dishonesty. His subjective circumstances are much stronger than those of Barghachoun.
Offence 3 was a very serious robbery offence. Counsel for Hussein properly conceded that it was significantly more serious than the typical case discussed in the Henry guideline judgment. Notably, the absence of a plea of guilty, the extent of planning, the offence charged, the fact that he was in company and the value of the property stolen distinguish the offence from the typical case discussed in the guideline judgement. I accept the submission of Counsel for Hussein that the Court cannot be satisfied beyond reasonable doubt that the offender was armed with a firearm that was loaded.
In relation to Offence 4 (the theft of numberplates) there is nothing to distinguish the roles of Hussein and Barghachoun.
Offence 6 (the robbery of the truck and contents) was a very serious offence of its type. Counsel for Hussein properly conceded that the circumstances were significantly worse than those the subject of the typical case discussed in the Henry guideline judgment. As discussed above in relation to Barghachoun, there was substantial planning, the offence was committed in company and the victim was vulnerable. The offence involved a dangerous weapon that, to the victim's knowledge, was loaded. Hussein played the most significant and active role; he wielded the weapon. Hussein also pressed the firearm into the victim's back while the victim was on his knees; this is an aggravating feature.
Each of the firearms offences was very serious. Offence 7 involved discharging a cartridge into the truck windscreen and a second discharge at the ground near the driver. The purpose of firing the firearm was to frighten the driver. Offence 8 involved two shots and two separate sets of victims (the Hannafords and Mr Frame), the discharges occurred in a very public place and the purpose was to frighten witnesses to the robbery.
I accept the submission of Counsel for Hussein that there was no evidence to contradict the proposition that a Browning self-loading .22 calibre handgun is towards the bottom of the range of dangerousness. Further, three of the four shots were directed at the ground.
In relation to Offence 9, the evidence does not establish beyond reasonable doubt the identity of the offender who actually lit the fire. I note that the value of the damage must have been considerable.
Hussein is now 32 years old. He was 29 years old at the date of the offences. He has a record of juvenile offending. As an adult, he committed a number of offences involving the possession of drugs and driving when unlicensed or disqualified, and other matters of a relatively minor nature. Generally, the penalties imposed have been fines or good behaviour bonds. In relation to driving matters, in 2007 he was sentenced to 12 months imprisonment with an eight months non-parole period and concurrent sentences. In relation to an offence of drive while disqualified, in 2010 he was sentenced to 7 months imprisonment with a six weeks non-parole period. Currently, he is disqualified from driving until 23 October 2041.
There is a s.166 certificate in relation to an offence of drive while disqualified that is associated with the indictable matters (committed at Silverwater on 19 August 2011) and offences of possess prohibited drug (cannabis and amphetamines found at his home on 11 October 2011 when he was arrested).
The offender was the seventh of eleven children. He described a disrupted and traumatic upbringing in Iraq. Because of the Iraqi war, he had no schooling. When the offender was five or six years old, his father suffered a fatal cardiac episode while serving in the military forces. His older brother was severely maimed in military action. When the offender was eight years old, the family fled to Turkey as refugees. When he was about 12 years old, the family came to Australia as sponsored immigrants. Hussein experienced significant adjustment issues. He was reportedly the subject of bullying at school and at home, where an older brother (who adopted the role of head of the household) physically assaulted him in a vicious manner, causing the offender to leave home and "live on the streets", where he resorted to criminal activity and drug use. When he was 18 or 19 years old he moved back home. In 2006, he married. There is a six-year-old child of that relationship. For the last eight years, he has been intermittently involved in another relationship. There is a one-year-old child of that relationship.
Hussein left school in Year 9, without acquiring literacy in English. On a sporadic basis, he has undertaken short term, unskilled employment. At one stage, he sustained a serious bicycle accident, causing him to be off work for about 12 - 18 months. Because he has a strong work ethic, the loss of employment made him depressed.
The offender informed Dr Allnutt that he had been the victim of an assault in 2003 in which he sustained a head injury, and he has a history of epilepsy.
He has been a heavy user of cannabis and a binge drinker. From 2010, he was a heavy user of methamphetamines. At one time, he was reportedly diagnosed with schizophrenia. At the time of the offences, he was non-compliant with his medication regime and was using crystal methamphetamine and cannabis. Following his arrest, he recommenced on medication.
The offender told Dr Allnutt that, at the time of the offences, he was using benzodiazepines and experiencing panic attacks and auditory hallucinations.
Mr Watson-Munro, a psychologist, described the offender as "a cooperative though clearly depressed and anxious man with a protracted history of the psychotic illness referable to a diagnosis of paranoid schizophrenia in 1998/1999". In the view of Mr Watson-Munro, at the time of the offences, the offender's judgment would have been severely compromised by his drug use and untreated psychotic condition. The offender's polysubstance abuse would have affected the prefrontal cortex of the brain, impacting upon impulsivity, ability to forward plan and judgment. Mr Watson-Munro opined that the offender needs psychotherapy, social skills training, and treatment to address relapse.
Dr Allnutt diagnosed the offender as suffering from a chronic psychotic disorder, possibly paranoid schizophrenia or schizoaffective disorder, a depressive disorder, post-traumatic stress disorder (relating to be traumatic events of his youth), and a history of polysubstance abuse. Dr Allnutt noted that substance abuse was likely to have aggravated the offender's mental problems. When Dr Allnutt saw the offender, the offender continued to manifest symptoms of psychotic disorder, despite abstinence from substances and ongoing medication while incarcerated.
Counsel for Hussein submitted that the offender's mental disorder should be taken into account in each of the three permissible ways; in relation to moral culpability, lessened importance of general deterrence and greater difficulty of imprisonment for a person with mental health problems. Dr Allnut did identify a direct causal connection between the offender's mental health condition and the offences, although he stated that, at the time of the offences, the offender was experiencing active symptoms of post-traumatic stress disorder, depression, psychosis, and substance abuse and dependence disorder, in the context of limited socio-economic prospects, unemployment, chronic pain and disability. To my mind, these factors are strong subjective circumstances that assist to explain the offending conduct, but they do not directly lessen moral culpability or make the offender an inappropriate vehicle for general deterrence. I accept that the offender's mental disorder would make imprisonment more difficult, but the extent to which it would do so is unclear.
In the opinion of Dr Allnutt, the offender requires psychiatric treatment over a period of at least 6 to 12 months. The issue of head injury requires further investigation.
I impose the following sentences:
| Offence | Sentence |
| Offence 9 | 3 years imprisonment from 11 October 2011 to 10 October 2014 |
| Offences 1 and 2 | 18 months imprisonment from 11 October 12 |
| Offence 3 | 7 years non-parole period from 11 October 2012 to 10 October 2019. 1 year balance of term |
| Offence 4 | 12 months imprisonment from 11 October 2012 to 10 October 2013 |
| Offence 7 | 6 years imprisonment from 11 October 2013 to 10 October 2019 |
| Offence 8 | 4 years imprisonment from 11 October 2013 to 10 October 2017 |
| Offence 6 | Non-parole period of 5 years from 11 October 2014 to 10 October 2019, balance of 4 years expiring 10 October 2023 |
In effect, I impose a non-parole period of 8 years and a total sentence of 12 years.
Special circumstances: first lengthy sentence, multiple mental health issues requiring investigation and long-term treatment and support upon re-entry into the community, total picture of imprisonment
Manly
The offender was 27 years old at the date of the offences. His criminal history includes matters of dishonesty and firearms matters. In 2007, for an offence of aggravated break and enter in company, he received a sentence of imprisonment of three years with a non-parole period of 12 months from May 2006 to May 2007. For an offence of unlawful sale of firearms, in July 2008 he received a sentence of seven years imprisonment from May 2007 to May 2014, with a non-parole period of four years, expiring on 4 May 2011. In sentencing the offender for the subject offences, I must take into account the overall picture of imprisonment. In effect, since May 2006, the offender has been at liberty for only a few months.
The fact that, when he committed the subject offences, the offender had recently been released to conditional liberty in relation to serious matters is a very significant consideration on sentencing. Because of the commission of the subject offences, parole was revoked with effect from the date of arrest, 11 October 2011. As it was the commission of the offences that caused the revocation of parole, it is appropriate that the sentences commence within the parole period.
In relation to the objective seriousness of each of the offences, the offender's role was that of support driver. The role of support driver was critical to the overall plan. It involved the offender driving to a variety of locations over a period of hours, and driving a long distance from Silverwater to Bulahdelah. However, significantly less moral culpability attaches to the role of a support driver when compared to the role of a participant who confronts a victim. The Crown submitted that Manly must have been closely involved in planning the events of 19 August because there were frequent telephone calls between his mobile telephone and that of Barghachoun. However, I accept the submission that I cannot be satisfied beyond reasonable doubt who used the telephone (as Manly was driving, he may not have spoken on the telephone), nor was there any detailed evidence concerning the content of the calls. I accept the submission that there is no evidence that Manly actually ignited the Mazda.
In relation to relevant aggravating features under s 21A, the principal features applicable to Manly are that the Mazda robbery occurred in company (the victim would have been aware of his presence) and the victim of the truck robbery was a vulnerable victim. The jury's verdict is consistent with Manly having been near the truck robbery and ready and willing to drive other offenders from the scene, but not immediately present at the scene. The Crown conceded that I should sentence him on that basis.
The offender is a 29-year-old man of Lebanese background. He has not been involved in any serious relationship. The offender's parents separated when he was young, but he was raised in a reasonably loving and supportive family environment. His schooling was marked by truancy, learning and behavioural difficulties. He was suspended on several occasions. He was expelled at the beginning of Year 10. Thereafter, he worked in a variety of unskilled occupations, including carpentry. From 19 years of age, the offender abused a variety of drugs. Psychosis and substance abuse probably impaired his occupational capacity. When he was released from custody in May 2011, the offender lived with his mother and brother. Steps were being taken to implement a mental health care plan, but it was not implemented prior to the commission of the offences. He discontinued antipsychotic medication and recommenced drug use. He began to experience delusional symptoms and depression.
Dr Allnutt, a forensic psychiatrist, states that the offender probably suffers from paranoid schizophrenia. Despite current treatment with antipsychotic medication, the offender continues to experience delusional beliefs. Dr Allnutt noted a family history consistent with an underlying chronic psychotic disorder complicated by substance abuse.
In a report from Dr Clark, a consultant forensic psychiatrist with Justice Health, the author opined that the offender suffers from a psychotic disorder, possibly either schizophrenia or schizoaffective disorder, as well as polysubstance abuse. He has also been diagnosed as having an antisocial personality disorder. In Dr Clark's opinion, the offender would benefit from psycho education (because he shows poor insight into his mental condition) and periodic medication review, and he should abstain from all drug and alcohol use as substance abuse is likely to destabilise his mental condition. He has undertaken a SMART program in custody.
Counsel for Manly submitted that the offender's moral culpability was lessened because of the mental illness from which he suffered at the time of the offences. He relied upon the evidence of Dr Allnutt that the offender's judgment would have been impaired "to a degree". Having regard to the length of time occupied by the offending conduct and the extent of planning that was involved, the evidence of Dr Allnutt that the offender's judgment would have been impaired "to a degree" does not substantially reduce the offender's moral culpability. It was submitted that Manly was not an appropriate vehicle for a message of general deterrence. I accept that Manly is not an ideal vehicle for a message of general deterrence but, in my view, the length of time occupied by the offending conduct and the extent of the planning are such that general deterrence remains a relevant sentencing purpose. There was evidence from Dr Allnutt in support of the proposition that the offender's mental illness rendered him more vulnerable and imprisonment would therefore be more difficult for him, and the Crown accepted that proposition.
I impose the following sentences:
| Offence | Sentence |
| Offences 1 and 2 | 18 months fixed term from 11 April 2012 to 10 October 2013. |
| Offence 3 | 4 years from 11 April 2012 to 10 April 2016. |
| Offence 6 | 3 years non-parole period from 11 April 2013 to 10 April 2016. Balance of 2 years. Term expires on 10 April 2018. |
| Offence 9 | 3 years non-parole period from 11 April 2013 to 10 April 2015. Balance of 1 year. Term expires on 10 April 2017. |
In effect, I imposed a six-year sentence with a four year non-parole period.
Special circumstances: overall picture of imprisonment, serious mental health issues requiring intensive and extensive supervision upon release
Riley
At the time of the offences, the offender was 43 years old. He has a significant criminal history in New South Wales and South Australia. In New South Wales, the record is for relatively minor matters, many of which are driving matters. In 1995, he received a sentence of six months imprisonment for two offences of break enter and steal. The South Australian record is lengthy and includes many driving matters and some matters of dishonesty. It includes short sentences of imprisonment. Most recently, the offender received a 15 months sentence of imprisonment with a five-month non-parole period commencing on 5 May 2010. The longest sentence that he has served is an 18 months sentence with a five months non-parole period from 19 August 2008.
The presentence report states that the offender was born in the United Kingdom. He is a United Kingdom citizen with permanent residency in Australia. When he was three years old, his family migrated to Australia. The family lived in Perth and then in Adelaide. Riley was one of four children. He enjoyed a supportive upbringing. In his mid teens, he commenced drug use. He has a long-standing substance abuse problem. By 18 years of age, he was using amphetamines and heroin. He completed Year 9. He is semi - literate. He has a very limited work history. He has been on unemployment benefits for most of his life. He has three children of two relationships. He maintains contact with them. He devotes much of his spare time to assisting his daughter to care for his grandchild. Recently, the offender was diagnosed with depression, for which he now receives medication. He is on a methadone maintenance program for substance abuse. He requires treatment for substance abuse, and support in relation to the obtaining of vocational skills.
The evidence does not establish that Riley was involved in planning the truck robbery. Nor does it establish the point at which Riley became aware of the plan to rob the truck. He did not join the co-offenders until they left Sydney. It is possible that he did not enter the stolen vehicle until just before it arrived in the Bulahdelah area, and it is possible that he did not learn that the vehicle was stolen until some time after he became a passenger. At the scene of the truck robbery, Riley entered the cargo area with Barghachoun. He and Barghachoun drove the truck from the scene of the robbery. I accept the submission that it is more likely that Barghachoun was the driver as he had a heavy vehicle driver's license. There is an aggravating feature that the robbery was committed in company. As stated above, the theft of the sawmill truck was an opportunistic offence.
The fact that Riley was on conditional liberty at the time of the offences is of minimal relevance. He was on bail for minor matters that were subsequently dismissed. While it is extensive, Riley's prior criminal history relates to matters that are far less serious than the principal offence for which I am to sentence him. The presentence report refers to very positive custodial case notes. I accept the submission that Riley's involvement in the truck robbery was an aberration. I accept that, given adequate support, he is capable of rehabilitation.
I impose the following sentence:
| Offence | Sentence |
| Offence 5 | 12 months fixed term |
| Offence 6 | 3 years non-parole period, accumulated by 6 months on offence 5. Balance of term of 2 years. |
| Offence 10 | 2 years fixed term concurrent with offence 6. |
I have imposed an effective non-parole period of 3 years 6 months, and an effective total term of 5 years 6 months.
Special circumstances: reasonable prospects of rehabilitation if extended supervision in relation to substance abuse and support in relation to the development of vocational skills.
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Decision last updated: 16 April 2013
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