R v Makouk

[2022] NSWDC 170

District Court

New South Wales

Medium Neutral Citation:

R v Makouk [2022] NSWDC 170

Hearing dates:

5 May 2022

Date of orders:

12 May 2022

Decision date:

12 May 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1    The offender is convicted.

2    I impose an aggregate term of imprisonment comprising of 6 years with a non-parole period of 3 years and 6 months to date from 12 June 2021 to account for his two periods of pre-sentence custody. The non-parole period will expire on 11 December 2024, and the head sentence will expire on 11 June 2027. The offender will be eligible to be released on parole on 12 December 2024.

Catchwords:

CRIME — Violent offences — Armed robbery — Dangerous weapon – Offensive weapon

CRIME — Firearms offences — Unauthorised use/possession of firearm

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Firearms Act 1996

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

Legge v The Queen [2007] NSWCCA 244

Muldrock v R (2011) 244 CLR 120

R v Henry (1999) 46 NSWLR 346

Category:

Sentence

Parties:

Kaylan Makouk (Offender)
Director of Public Prosecutions NSW

Representation:

Counsel:
L Fernandez (Defendant)

Solicitors:
Office of the Director of Public Prosecutions NSW (Prosecution)
The Shopfront Youth Legal Centre (Defendant)

File Number(s):

2021/297033
2021/104962
2021/95725
2021/96611

Publication restriction:

None

Judgment

1. Kaylan Makouk appears for sentence after having pleaded guilty in the Local Court to the following offences:

1. Robbery armed with a dangerous weapon contrary to s 97(2) Crimes Act 1900, taking into account a further count of the same offence on a Form 1;

2. Robbery armed with an offensive weapon contrary to s 97(1) Crimes Act 1900, taking into account one count of resist police officer in the execution of duty contrary to s 58 Crimes Act 1900 on a Form 1; and

3. Robbery armed with a dangerous weapon contrary to s 97(2) Crimes Act 1900, taking into account a further count of the same offence on a Form 1.

2. The section 97(2) charges carry a maximum penalty of 25 years imprisonment and the s 97(1) charge carries a maximum penalty of 20 years imprisonment.

3. I am also asked to sentence the offender for the following related offences appearing on a s 166 certificate:

1. Possess unauthorised pistol contrary to s 7(1) Firearms Act 1996, taking into account a further count of the same offence on a Form 1. This offence carries a maximum penalty of 14 years imprisonment and parliament has specified a standard non-parole period of 4 years.

2. Possess unregistered firearm pistol contrary to s 36(1) Firearms Act 1996, taking into account a further count of the same offence on a Form 1. This offence carries a maximum penalty of 14 years imprisonment.

Facts

4. The parties presented an Agreed Statement of Facts that can be summarised as follows.

Robbery armed with a dangerous weapon and Form 1 offence

5. At about 1.15am on 4 April 2021, Timur Smagulov and Huihung Fang were walking on Elger Street in Glebe, when the offender ran up behind them. When they turned around they saw the offender pointing a gun at them, wearing gloves, a hoodie with the hood up and a black surgical mask. He said “give me everything”. Mr Smagulov handed over a yellow leather Fendi card holder valued at $550 and it contents. At this time the offender put the gun in his pocket. Mr Smagulov asked if he could take out his identification documents and the offender agreed. Mr Smagulov retrieved his identification documents and handed back the card holder that had 4 visa cards a Medibank card and an Opal card in it. The offender then pointed the gun at Mr Smagulov’s wrist and said “Give me this and everything” referring to Mr Smagulov’s watch. Mr Smagulov handed over his watch and the bracelets he was wearing. The offender said “Do you have any cash?” to which Mr Smagulov replied that he did not.

6. The offender then looked at Mr Fang and said “now you”. Mr Fang gave the offender his apple watch valued at $500 and his card holder containing an AMP bank card. Mr Fang removed his identity documents first.

7. The offender walked off down Stirling Street. Mr Smagulov and Mr Fang entered their unit block and called the police. Police later viewed CCTV footage that depicted the offender and two other persons in the area and later entering the Oaks Goldborough Hotel at about 2.30am.

Robbery armed with an offensive weapon and Form 1 offence

8. At about 5pm on 5 April 2021. Xiaozhou Liu was walking home in Jones Street Ultimo when he noticed two men and one woman walk past him. About 10 seconds later the offender grabbed Mr Liu from behind by putting his arm around Mr Liu’s neck and grabbing the strap of his shoulder bag, holding him back firmly. The offender held a red box cutter with a 10cm blade in front of Mr Liu’s stomach. A male voice said “Don’t move. Give me your bag and phone”. Mr Liu responded “Don’t take my bag I will give you my money”, The offender said” No I will take your bag and phone” and ripped Mr Liu’s bag off his shoulder while keeping the knife facing his stomach. The offender then searched the right pocket of Mr Liu’s shorts and took his airpod charging case that had his unit key attached to it. At this time Mr Liu noticed that the offender was wearing a black balaclava.

9. The offender began to run away. Mr Liu asked for the return of his student card and unit key. The offender stopped and removed the unit key from the charging case and threw it into a bush before running away. Mr Liu’s Nike shoulder bag contained a Fion brand leather wallet, about $415 in various currencies, a commonwealth bank card, a Medicare card and a student card. Mr Liu later received a notification that the use of his bank card for a $78 transaction had been declined. Mr Liu reported the incident to police later that day. Police later watched CCTV footage of the area that depicted the offender struggling with Mr Liu and that the offender was with two people. The footage showed the offender entering the store where the bank card transaction was declined. At 6.21pm the offender and the two others were depicted entering the Oaks Goldborough Hotel.

Robbery armed with a dangerous weapon and Form 1 offence

10. At about 11pm on 6 April 2021, Josh Craig and Henny Hildas were walking on Quarry Street Ultimo. The offender and the co-offender (a young person) ran up behind them and stood in front of them. The offender was wearing a black surgical mask, a black cap and black clothing. The two offenders pointed guns at the victims. Mr Craig feared for his life and the life of Ms Hildas. Ms Hildas was not sure if the guns were real or not and was very confused, she considered saying no but followed what Mr Craig did.

11. The offender said “Hand over your things”. The co-offender said “Give us your wallets and your phones”. One of the offenders said “Stay quiet”.

12. Mr Craig handed over his Apple iPhone 6, a Westpac debit card, driver’s licence, student card and university pass. One of the offender’s said “What else do you have?” to which Mr Craig responded “I only have change” and was told “I will take that as well”. Mr Craig handed over $5.

13. Ms Hildas handed over her backpack and a Huawei phone to one of the offenders. The backpack contained items including her passport, student card, sunglasses and wallet containing bank cards. The offender looked at Mr Craig and said “He’s got a bag as well”. Mr Craig handed over his backpack containing items including, two sets of keys, wireless earbuds, a hard drive, battery pack and a limited edition Nintendo switch valued at $660. One of the offenders then said “Have a good night” and Mr Craig replied “You too”. The offenders walked away laughing at which time Ms Hildas said to the young person “How old are you?”.

14. Mr Craig and Ms Hildas continued to walk towards Wentworth Park, before flagging down a car to seek help. About 10 minutes later Police began patrolling the area.

15. At about 12.15am on 7 April 2021, Police spotted a person matching the description given by Mr Craig and Ms Hildas. When the offender was approached by Police he was wearing beige pants and a jumper that matched the description given by Mr Liu. He was in possession of Mr Craig’s Westpac debit card and provided a number of conflicting explanations for this. The offender was then arrested.

Related offences (s 166certificate)

16. Further examination of CCTV footage led Police to a unit within the Oaks Goldsborough Hotel where the offenders had been staying with another person, where a search was conducted. Police located two handguns and a balaclava under a mattress. A forensic firearms examiner examined the handguns and opined that they were battery operated air pistols that fired gel or water beads, similar to a paint ball, and are illegal in NSW and defined as a pistol by s 4(1) Firearms Act 1996. Both were unregistered and the offender did not hold a licence or a permit to possess the pistols. One of the pistols did not work.

17. Police also recovered a red and black knife, two more balaclavas, a black cloth surgical mask and items of clothing matching the descriptions given by the victims and depicted on the CCTV footage. The police also recovered property belonging to the victims.

18. Later on 7 April 2021, police executed a search warrant at the home of the co-offender and located other relevant clothing and items of property taken from the victims.

19. The offender took part in an electronically recorded interview and denied any involvement in the robberies.

20. The offender was released on Supreme Court bail on 18 August 2021. He failed to appear at Central Local Court on 28 September 2021 and a bench warrant was issued.

21. On 1 October 2021 police attended the home of the offender’s aunt. After seeing police the offender ran away. An officer chased the offender and tackled him to the ground. The offender resisted the officer in trying to restrain him and to place handcuffs on him, by thrashing his body around and trying to get up off the ground. It took 4 officers to handcuff the offender. The offender has been in custody following this arrest.

Offender’s Case on Sentence

Report of Dr Richard Furst

22. The offender relied on a report of Dr Richard Furst, forensic psychiatrist, dated 13 April 2022. The report can be summarised as follows. I will not repeat matters already referred to.

23. Dr Furst met with the offender on two occasions for the purposes of preparing the report. Both meetings were conducted via audio-visual link. Dr Furst stated that the offender was lucid and logical in his thinking and showed no signs of psychosis.

24. The offender was born in Sydney and had one brother and four half-brothers. The offender’s parents separated shortly after his was born. The offender’s mother worked as a prostitute and struggled with drug addiction and alcoholism. The offender’s mother had mental health problems and several of his family members had been diagnosed with schizophrenia and bipolar disorder.

25. The offender was removed from his mother’s care when he was about 6 months old and then lived with his father and his brother for two years. The two were then abandoned by their father in a park, after which point the Department of Community Services placed the children with their grandfather. The offender also lived with his aunt and cousins for a time, where he claimed was sexually abused over a period of one to two weeks when he was seven to eight years old. The offender was subjected to significant physical and emotional abuse while in the care of his grandfather and stepfather.

26. The offender’s mother took her own life when the offender was 11 years old. The offender had memories throughout his childhood of his mother’s face being black and bruised, apparently at the hands of his stepfather, who died six months after his mother. The offender stated that he “gave up on the world” after his mother’s death.

27. The offender attended three primary schools and later went to Kingsgrove High School. His schooling life was marked by learning difficulties. When he was about 12 years old, the offender witnessed an incident in which a younger boy from his primary school was run over and killed on the way to school. The trauma of this incident stayed with the offender throughout his life, and the offender had ongoing vivid recollections and nightmares of the incident for a long time. He also had nightmares relating to his mother’s suicide and the sexual abuse.

28. The offender left high school at the end of Year 10 and subsequently became the primary carer for his grandmother, who had severe emphysema and died in September 2020.

29. Between 2019 and 2021, the offender was in a relationship with Lateisha Wilson. The relationship appeared to be highly dysfunctional by virtue of the mental health problems of both partners and the Ms Wilson’s behaviours of violence towards the offender and self-harm. The two had separated on the morning of the first robbery offence on 4 April 2021.

30. The offender had a history of drug abuse and alcoholism that dated back to the age of 11 or 12 years. The offender initially smoked cannabis, then began to drink heavily and take Xanax, before moving to drugs including ice, GHB, MDMA and cocaine as well as certain hallucinogens. The offender stated that he drank and used drugs because he “hated thinking of his life”, indicative of maladaptive coping. The offender had been drinking heavily, taking Xanax and smoking cannabis in the week leading up to the offence and also appeared to have come under the negative influence of drug abusing peers at the time of the offending in April 2021.

31. The offender stated that he “sort of blacked out” at the time of the offences and could only “remember flickers”. The offender seemed to appreciate the seriousness of the offending behaviour and expressed great regret and remorse for his actions. He had recently written letters of apology to each of the victims and also delivered an apology during the course of his evidence to a victim who was present in court.

32. The offender had been struggling to cope over recent months, experiencing feelings of depression and stating that being in gaol was “breaking him”. Dr Furst was of the view that the antidepressant medication that he had been prescribed had little effect.

33. The offender expressed a desire to change the course of his life and become a valuable member of the community. He was eager to get the support he needed and was open to suggestions regarding further education and drug and alcohol rehabilitation while in custody.

34. Dr Furst diagnosed the offender as suffering from alcohol and substance use disorder and post-traumatic stress disorder. Dr Furst noted that the offender had a childhood characterised by trauma, abuse, instability and neglect that caused him to experience persistent intrusive memories, anxiety, depression mood instability and re-experiencing phenomena. Dr Furst opined that it was therefore “no surprise at all” that he developed mental health problems and substance abuse/heavy drinking in his early teens as a maladaptive pattern of coping that continued throughout his later teenage years and into early adulthood.

35. Dr Furst believed that, once released on parole, engaging in trauma-informed counselling and a drug and alcohol treatment program would be crucial to the offender’s recovery and rehabilitation.

36. In determining the offender’s prospects of rehabilitation, Dr Furst noted that the offender had no antecedents, that the offences took place within a short period in early April 2021, and that the offender appeared remorseful and motivated to engage in counselling and rehabilitation. The main risk factors identified by Dr Furst related to the seriousness of the offending, his biological vulnerability towards addiction, the longer-term effects of his childhood trauma victimisation and trauma exposure bring a risk factor for future drinking and drug use, and the potential negative peer influence, either in custody and/or when released into the community. Dr Furst concluded that, overall, the offender was at moderate risk of reoffending and regarded it more likely than not that the offender would adhere to the requirements of any treatment program he was referred to.

Letter from James Boughton

37. The defendant tendered a letter from James Boughton, a former case worker of The Shopfront Youth Legal Centre. The offender was referred to Mr Boughton for case management support by the solicitors at The Shopfront Youth Legal Centre on 16 April 2021. The offender presented as very emotionally unstable and experiencing an extreme state of hyperarousal including thoughts of helplessness, hopelessness and was contemplating self-harm. Over the past year the offender has had regular contact with Mr Boughton, including during his time in custody. The offender has described the circumstances of his life to Mr Boughton as involving considerable neglect, trauma, abuse and fear. His mother committed suicide when he was about 11 years of age. The offender was cared for by different family members and could not get the authorities to believe that he was a victim of abuse. He was advised to return to the care of his mother by a case worker who was unaware that she had died.

38. The offender told Mr Boughton that he had relied heavily on drugs and alcohol to cope with his trauma and had never had access to therapeutic or mental health support. He had an apprenticeship as an interior designer for about two years before he suffered a workplace injury, after which he ceased work and cared for his dying grandmother.

39. Whilst he has been in custody the offender has been reading and trying to better himself. He has completed courses in custody with a view to what he will do on his release. He has expressed remorse for his actions to Mr Boughton and told him that he deeply regrets the mistakes he has made.

40. Mr Boughton stated that the offender has spent considerable time in isolation whilst in custody as a result of the pandemic and segregation for his own personal safety. Whilst on remand he has spent about 150 days in quarantine isolation.

41. Mr Boughton described the offender as a polite young man who is respectful and appreciative. He has plans to improve himself and to find his own place in the world. He has had a hard time in custody and told Mr Boughton that he never wants to go back to gaol. The offender is open to accessing support for housing and mental health on his release further increasing his chances for rehabilitation.

Letter from Melissa Clifford, Psychologist

42. The offender tendered a letter from Melissa Clifford, psychologist, dated 20 May 2021. Mr Clifford first met the offender when he engaged with the Youthblock Youth Health Service in August 2019. He then referred himself for counselling in or about November 2020. Ms Clifford began counselling with the offender in January 2021 and met on five occasions prior to his arrest.

43. When Ms Clifford first saw the offender he presented with symptoms of depression including low mood, loss of enjoyment of activities and a sense of hopelessness, as well as anxiety, trauma and difficulty regulating his emotions. The offender described a significant history of trauma including being abandoned by his father, physical and emotional abuse and significant neglect by his mother who died when he was 11 years of age. The offender was placed in multiple foster placements over a number of years including with some family members. He has received little support from his family and remained incredibly isolated.

44. To Ms Clifford’s observation the offender was struggling with a range of issues impacting his life and ability to manage his own affairs. In particular, finding safe, secure and stable accommodation. He had been staying in transitional accommodation with his girlfriend who also required a significant amount of care and support that rendered the offender effectively to be her carer. They were not safe in their own apartment due to a number of break-ins. The offender had struggled to find employment causing him anxiety and to have a low mood. His relationship with his girlfriend became very important to him but this was breaking down at the time of the commission of the offences. This was a significant matter to him by reference to his long-standing fractured attachment history.

42. Ms Clifford found the offender willing and able to engage in counselling and support services when they were offered. Ms Clifford is aware that the offender has found his time of remand to be incredibly difficult and that there were periods in which he was being monitored to ensure against self-harm. She opined the continuation of his incarceration as having a significant negative impact on his mental health, increasing the risk of isolation and marginalisation of a vulnerable young person.

43. Ms Clifford opined that the offender will need extensive continuing counselling in a number of areas. She believed that he would make significant clinical gains in his mental health and functioning with ongoing treatment allowing him to engage constructively in work and in the community.

Other Documents

47. The offender tendered a bundle of other documents confirming his history. A Health Screening Clinical Report dated 9 December 2019 from the Sydney Children’s Hospital at Randwick described the offender as an eight year old boy with some educational difficulties and a relatively short attention span. The report recommended an investigation in a series of complaints and noted the importance of stability in his environment. It recommended he get routine health care and that he be provided with a safe, stable and loving environment. There were also a series of documents recording the periods when parental responsibility was taken over by the Minister and the conditions upon which he was released to live with family members.

48. A record from the school counsellor dated 17 September 2012 supported the offender’s feelings of loss experienced in his life particularly relating to his mother. He had feelings of guilt and wished that he could have saved his mother. He had experienced confusion about the circumstances of her death and was experiencing very strong emotions that would cause him to cry in class. Intrusive thoughts about his mother’s passing broke his concentration and he found it difficult to concentrate on his studies.

49. A further record from the school dated December 2012 recorded that the offender had been a witness to a car accident involving a child at the school. The child later died. He was provided with counselling and advised to seek further follow up if required.

The Offender’s Evidence

50. The offender was called to give evidence before me at the sentence proceedings and was cross-examined. His evidence can be summarised as follows. I will not repeat matters unless it is necessary to do so.

51. The offender gave evidence that in his dealings with Dr Furst, Ms Clifford and Mr Boughton that he had told them the truth and provided them with accurate details about his background.

52. He grew up knowing that his mother had problems with drugs and her mental health. He witnessed her often very drowsy and falling asleep and consuming drugs and alcohol. He saw her with bruises and injuries which he did not understand. He often asked her where the injuries came from.

53. When he was about seven or eight years of age he went to live with a cousin in Newcastle who sexually abused him. The cousin was about five or six years older than him.

54. When he was living with his father, his father abandoned the offender and his brother at a football game. He found it very difficult to live with his father because he was physically abused by his father’s other children. He felt unwanted when he lived with his father.

55. When he went to live with his maternal grandfather in Kingsgrove he was subjected to further physical and mental abuse.

56. His mother committed suicide when he was 11 years of age and he remembers seeing and speaking to her the day before. On that day she was under the influence of drugs and her grandfather asked her to leave. She told the offender that she loved him and that she would see him and she would bring him a treat. He felt that her suicide caused him “a different level of pain” and it caused him to give up on life at that point. He began using cannabis after his mother died to try and escape the negative thoughts in his head.

57. When he was about 12 years of age he saw a boy run over whilst walking to school at Kingsgrove. He recalls the aftermath of the scene and what the boy looked like after the car had run over the top part of his head.

58. At about age 14 he began using alcohol and Xanax when cannabis was no longer effective. He thought he needed drugs to help him get through life.

59. When he was in Year 10 he became aware that he had a number of learning problems. He had a full time learning support teacher. His school assisted in getting an apprenticeship as a carpenter at an interior designer. He worked there for about two years before he had an accident at work when his leg was caught under a pallet of insulation material. After leaving the hospital he resigned his employment, not being aware of his rights to compensation. At the time his grandmother was very ill with emphysema and he decided to stay at home with her and look after her. He did that for about two years. They lived in the same room. He found his time as a carer to be very traumatising and increased his use of drugs and began drinking a bottle of spirits per day. He hated thinking about life and experimented with harder drugs.

60. In about 2019 he entered a relationship with Lateisha Wilson. They were living together for about two years in her Department of Housing accommodation. She had also experienced trauma growing up, was adopted and had serious mental health issues. She was dealt with by the court on a number of occasions under the Forensic Mental Health provisions. In about August 2019 he was introduced to Youthblock Youth Mental Health Service through her and he became involved with them.

61. He remembers very little about the armed robberies. He had a fight with Ms Wilson and left. He recalls playing video games and taking a lot of drugs on the day before the first armed robbery. Ms Wilson had been abusing him. She was in a very manic state and tried to stab him before he left.

62. In his evidence, he wanted to apologise to the victims, acknowledging that they had the right to go about their business without interference and threats from him. He described himself as being deeply sorry and hoping that the victims could go forward in their lives without too much trauma. He had previously written a letter of apology to the victims. The offender’s evidence was that he had disliked his time in gaol and he believes that it has taken a further toll on him. The conditions of his incarceration during the pandemic have been particularly onerous, with limited time outside his cell for an extended period.

63. The offender has undertaken a number of courses and programs in gaol relating to cannabis, positive thinking and positive lifestyle. He is keen to do the EQUIPS Addiction program. When he gets out of gaol he wants to get treatment for his drug dependency and learn other life skills. He described himself as wanting to take every opportunity to show himself, his family and the community that he can change. He wants to get a job and contribute positively to the community.

64. In cross-examination he said that he had previously tried to stop taking drugs but without any assistance. At that time, he did not understand that he could get support to help him with his addictions. He described the situation as having no help in gaol and feeling isolated and alone when he was released on Supreme Court bail, eventually leading to a return to drug use.

Objective Seriousness

65. The robbery offence committed on 4 April 2021 occurred at about 1.15am when it was dark and there were not many people around. The offences involved multiple exchanges between the victim and the offender. The property taken was valued at about $550 as well as some jewellery of personal significance to the victim. The dangerous weapon involved was a firearm.

66. The robbery offence committed on 5 April 2021 occurred on the pathway of the complex where the victim lived. The victim was grabbed around the neck and held by the shoulder bag he was wearing. The offensive weapon involved was a box cutter with a 10cm blade which was held in front of the victim’s stomach. The value of the property taken was about $400.

67. The robbery offence committed on 6 April 2021 occurred at about 11pm at a time when it was dark and there were not many people around. The victim and his partner were walking home. The property taken from Ms Hildas was a backpack containing a passport, wallet along with her phone. The dangerous weapon involved was a firearm. The offence was aggravated by the fact that the offender was not really armed with the dangerous weapon but it was used when he pointed the firearm at the victim and that he was in the company with the co-offender who was taking an active role in the robbery and was also armed with a dangerous weapon. The offence would have been a terrifying experience for the victim.

68. The firearms were located at the home of the offender’s associate within hours of the armed robbery offence being committed against Ms Hildas. One of the firearms was not in working order. It is not known whether the other firearm was in working order. The firearms looked real and the victims would not have known that they were not capable of inflicting injury.

69. The Henry guideline is applicable in these sentence proceedings: R v Henry (1999) 46 NSWLR 346. The guidelines provide that where the offence is characterised by certain features, the head sentence imposed should fall between four to five years imprisonment. It should be noted that the s 97(2) robbery offences are more serious than the types of offences considered in Henry, but also that the Henry guideline related to late pleas of guilty where the appropriate discount was in the order of 10%. The guideline judgment is not prescriptive, but rather operates as a check or a sounding board for the imposition of an appropriate penalty: Legge v The Queen [2007] NSWCCA 244 at [40] and [48] – [59].

70. The offender had a deprived upbringing. As a child he was exposed to drug use, alcohol abuse, trauma and violence. His home life lacked stability and he was passed amongst family members who neglected him. He suffers from post traumatic stress disorder as a result of his exposure to these events. He was introduced to drugs and alcohol at a young age when he could not make an informed decision. He used drugs and alcohol to escape intrusive thoughts of his past trauma. As a result of these factors in combination, his moral culpability for these offences is reduced: Bugmy v The Queen (2013) 249 CLR 571.

71. I have taken into account the maximum penalty for the offences.

Deterrence

72. General deterrence is of significance to the offences before the Court. One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offender and other persons intending to commit similar crimes that they will meet with severe punishment.

73. General deterrence may be attributed less weight in cases where the offender suffers from mental condition because such an offender is not an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53]-[54].

74. The offender suffers from PTSD and substance use disorder as a result of his deprived upbringing. The offender is still relatively young and has not had a stable period in his life in which he could have realistically engaged in drug rehabilitation. During the most stable period in his life he cared for his dying grandmother in circumstances that exacerbated his mental health conditions. He has demonstrated in the past that he is capable of accepting support when it is available. There is a causal relationship between his substance use disorder and his offending conduct.

75. The offender’s mental condition reduces his moral culpability for the offences and matters such as deterrence, denunciation and retribution carry less weight: Muldrock v The Queen (2011) 244 CLR 120 at [53]. I have also taken into account that further time in custody is likely to expose him to further trauma and cause further decline in his mental health.

76. There is a need for specific deterrence, but this is tempered by reference to the offender’s prospects of rehabilitation and his insight into his need for treatment and support to reintegrate into the community.

Aggravating Factors

77. The 4 April 2021 and the 5 April 2021 offences involved the actual use of a firearm in that it was pointed towards the victims: s 21A(2)(c) Crimes (Sentencing Procedure) Act 1999.

78. The 6 April 2021 offence was committed in company: s 21A(2)(e) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

79. The offender does not have a record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

80. The offender was a person of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999.

81. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. I am satisfied by a reference to the offender’s evidence and what he has told various people that he is committed to seeking assistance to treat his drug use and mental health conditions. The offender has already participated in a number of courses in custody and I accept his resolve to further his rehabilitation. He has demonstrated by his past conduct that he is willing to accept support and services when they are available to him. I am satisfied on the balance of probabilities that he has good prospects of rehabilitation.

82. The offender has demonstrated remorse: s 21(A)(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender, in his evidence and by reference to what he has told the authors of the various reports, has accepted responsibility for his actions and in my view expressed genuine contrition and remorse.

83. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

84. I have taken into account that the offender’s time in custody has included strict quarantine conditions required in response to the COVID-19 pandemic, including that the offender has been locked in his cell with limited opportunity to exercise for extended periods.

85. In taking into account the Form 1 offences I am sentencing the offender only for the principal offence, and I have had regard to the applicable principles set out in the guideline judgment.

86. I have taken into account the principle of totality. The offender committed the offences over a 3 day period and at a time of crisis and excessive drug use. In setting the aggregate penalty I have considered the overall criminality involved and the need to avoid a crushing sentence.

87. On the other hand, whilst the offender’s subjective circumstances are compelling they cannot be used to impose an inadequate sentence for a set of serious offences.

Penalty

88. I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all other alternatives that no penalty other than imprisonment is appropriate.

89. The offender is convicted.

90. This is an appropriate matter to impose an aggregate sentence pursuant to s 53(A) Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

1. The 4 April 2021 s 97(2) offence (H79675134-01) taking into account Form 1 offence (H79675134-02) – 4 years and 6 months;

2. The 5 April 2021 s 97(1) offence (H79282004-01) taking into account the offence on the Form 1 (H84418476) – 3 years and 9 months;

3. The 6 April 2021 s 97(2) offence (H79420526-03) taking into account offence on the Form 1 (H79420526-01) – 5 years;

4. s 7(1) Firearms Act offence (H79420526-02) taking into account offence on the Form 1 (H79420526-04) – 9 months with a non-parole period of 6 months;

5. s 36(1) Firearms Act offence (H79420526-05) taking into account offence on the Form 1 (H79420526-06) – 6 months.

91. I find that there are special circumstances to justify the variation of the statutory ratio. The offender is a young man and it is his first time in custody. He has mental health conditions as well as addiction issues that will require treatment and justify an extended parole period.

92. I impose an aggregate term of imprisonment comprising of 6 years with a non-parole period of 3 years and 6 months to date from 12 June 2021 to account for his two periods of pre-sentence custody. The non-parole period will expire on 11 December 2024, and the head sentence will expire on 11 June 2027. The offender will be eligible to be released on parole on 12 December 2024.

Decision last updated: 19 May 2022