R v Mazzitelli
[2011] NSWDC 129
•19 August 2011
District Court
New South Wales
Medium Neutral Citation: R v MAZZITELLI [2011] NSWDC 129 Hearing dates: 11/08/2011 Decision date: 19 August 2011 Jurisdiction: Criminal Before: Tupman DCJ Decision: 4 Counts Aggravated Armed Robbery - S53A Aggregate Sentence - 6 years npp, 4 years parole, overall 10 years (8 Form 1 Offences taken into account - 2 on each charge);
1 Count Escape from Prison Custody - 12 months npp, 12 months parole, overall 2 years accumulated on armed robbery sentences
Catchwords: CRIMINAL LAW - sentence - pleas of guilty - 4 substantive Aggravated Armed robbery Charges, each with 2 Form 1 offences - Form 1 offence aggravated armed robbery, robbery armed with offensive weapon, assault with intent to rob and steal from the person - 1 separate substantive offence of Escape from Lawful Prison Custody - escapee from minimum security - armed robberies committed whislt escapee to fund serious drug addiction - convenience stores, pharmacies, newsagencies and similar - further aggravation in company and armed with offensive weapon - limited planning - arrested committing last offence - early pleas - lengthy prior criminal history with imprisonment for armed robberies - S53A CRIMES (SENTENCING PROCEDURE) ACT - Aggregate Sentence for all armed robbery offences - finding about sentence which would be imposed for each in absence of aggregate sentence [S53A(2)(b)] - S310B Escape charge separate sentence fully accumulated [s57 Crimes (Sentencing Procedure) Act]. Legislation Cited: Criminal Case Conference Trial Act
Crimes Act ss 97(1), 97(2), 310B,
Crimes (Sentencing Procedure) Act ss 3A(2), 53A, s57
Category: Sentence Parties: Regina
Andrew John MAZZITELLIRepresentation: Counsel:
Mr S Fraser (Offender)
Solicitor:
Mr L Gray (Crown)
File Number(s): 2010/00262134
Judgment
HER HONOUR:
The offender is before me for sentence following his pleas of guilty on 7 April 2011 to a number of different charges. He was charged with 12 armed robbery charges and one charge of escape from lawful prison custody. Ultimately he was committed for sentence on four of those aggravated armed robbery charges, each of which has two additional offences of either armed robbery or similar charges on Form 1 documents to be taken into account. He was also at the same time committed for sentence on the escape charge.
He pleaded guilty early in the Local Court and is subject to the provisions of the Criminal Case Conferencing Trial Act . Both because of that, and the general utilitarian value that arises from early pleas, he is entitled to a discount of 25% from what would otherwise be the appropriate sentences.
He is to be sentenced for the following offences:
The first is Sequence 2, the offence of escaping from lawful prison custody on the 23rd of April 2010 when he was a sentenced prisoner and inmate at Long Bay Correctional Centre. That is an offence contrary to S310B of the Crimes Act and as such carries a maximum penalty of 10 years imprisonment. The sentence for this offence is also subject to the provisions of S57 of the Crimes (Sentencing Procedure) Act .
The relevant facts for this offence are that as at the 23rd of April 2010 the offender was serving a 3 year non-parole period with an overall sentence of 5 years for an offence of robbery in company. That sentence commenced on the 13th of March 2009. He was at that stage being held as a minimum security prisoner and was doing work within the larger Long Bay Prison complex. He was with three other prisoners who were being supervised by officers. At about noon the officers left for a lunch break leaving the offender and the other prisoners in the workshop. The prisoner took the opportunity to climb over the two perimeter wire fences to escape. The first of these was topped with razor wire.
Near the workshop as he was on en route to escape he saw a rubbish skip which had a discarded mattress in it. He used that to throw over the razor wire to reduce the chance of being cut. He then scaled over the outside wire fence, which was topped with barbed wire. He jumped to the ground and stole the car parked outside which he hot wired and drove away.
The facts, apart from those which I have recited, are relatively scant and have been expanded by the prisoner in his oral evidence. I accept that on this day he had not made any real plans to escape. Not long beforehand, during some routine medical examinations, doctors in the prison had found a lump on his chest under his ribs which he was told ought to be tested to determine whether or not it was cancerous. That made him scared, I accept, because his grandfather had died of cancer when the offender was about 15 and his mother was at the time of his escape undergoing chemotherapy for cancer herself. He was frightened that he was going to die in prison, so he took the chance of what would appear to be relatively light security to escape.
I accept that the fact that there was a mattress available to assist in his escape was not known to him in advance, and not planned.
All escapes from prison custody are serious offences, particularly in relation to minimum security prisoners who thereby exploit the special trust placed in them. The prisoner and the community generally benefit from the system of incarceration that allows for a proper classification of prisoners so that those who can be trusted are allowed a more relaxed level of supervision, which is both cost effective to the community and of ultimate benefit to the prisoners and the community therefore indirectly. As a result, general deterrence is a significant consideration in sentencing for these offences.
That having been said, it seems to me that this escape offence is not a serious example of offences which can be charged under this section. There was no planning. It was not a sophisticated method that was used. There were no threats made to prison officers, and on the evidence before me nothing that put the rest of the prison population in any danger or at any risk.
The remaining four substantive charges for which I must sentence the offender are all them offences of aggravated armed robbery contrary to 97(2) of the Crimes Act, which therefore carry maximum penalties of 25 years imprisonment.
The first in time is Sequence 14 and it is a charge that on the 27th of June 2010 at a Kensington the offender robbed the named victim of property, being money in the sum of $500 and personal items, whilst armed with a firearm. He asks that when sentencing him for that offence I take into account two further offences which are Sequences 6 and 13.
Sequence 6 is also a charge of aggravated armed robbery on the same day and place and involves his robbing the Kensington Pharmacy of an unknown quantity of money whilst being armed with a firearm. The remaining Form 1 offence relevant for Sequence 14 is Sequence 13 and is an offence of armed robbery contrary to s 97(1) that on the same date, 27th of June he robbed Alexandra Martine of a sum of money and personal items whiles armed with an offensive weapon, namely a knife.
The relevant facts are that that just after 6pm on Sunday the27th of June 2010 the offender and two males co-offenders went into the Kensington News Agency and Pharmacy. The offender was wearing ordinary clothes including a hooded jacket. He was not disguised. All offenders went into the shop, walked to the rear where the on-duty pharmacist, a 29 year old man, was working. The offender approached him, told him to open the safe and told him he had a knife and a gun and demanded the money. He was carrying a bag at the time and as he made the demand he lifted up some items in the bag and showed the pharmacist the brown wooden handle of the knife and the black gun handle or grip. The pharmacist initially asked whether it was a joke. The offender may it clear it was serious and told him to open the till unless he wanted to be stabbed or shot.
Not surprisingly the pharmacist feared for his life and was frightened. He took the offender to the front counter area, opened the till tray and told him to take the money. The other offenders were telling him to take out the cash tray and open the safe. The pharmacist went to the second register and opened it. The offenders took the money from the register and one of them continued to demand that the safe be opened. The victim told them that the safe was locked on a time delay. The offenders took coins from the register. Then the second offender took the wallets from the pharmacist and the young 18 year old female shop assistant who also worked there. All three left the store. All of this was captured on closed circuit television and clearly depicts the offender as one of those involved.
The pharmacist had $500 in his wallet, which is the subject matter of that offence, being the substantive offence, Sequence 14. The young shop assistant only had twenty cents in her wallet, but I accept was no doubt very frightened at being involved in this offence. Each of these victims was put in fear. The young shop assistant had been crouching down when the demand was made of her and she heard one of the offenders threaten that they would be stabbed, she thought that they were armed with a knife. That would appear to be the reason behind the charge involving her being an offence under S97(1). That is the second additional offence taken into account.
There is no evidence that any of the property that was stolen from either of these two people or money taken from the shop was returned. There is no evidence about how much in fact was stolen from the cash register. That is the first of the additional offences, but as I have said, there was $500 in the pharmacist's wallet. The amount of property stolen is not particularly large in those circumstances.
The offence is aggravated in addition to the statutory circumstance of aggravation, that is, being armed with a firearm, by the fact that the offender was in company with two others and also because he was armed, not just with the firearm, but with an offensive weapon, namely a knife. There is no evidence in relation to the firearm as to whether or not it was a genuine firearm capable of being used to fire a bullet. It has never been recovered. But in some of the other offences there is an indication from one victim that he thought this particular firearm looked like it was a either toy or a replica.
The offender himself has given evidence under oath that in fact it was not a genuine firearm but in fact a toy belonging to a friend's brother. In the circumstances I accept his evidence. No doubt this would have been of small comfort to any of the victims who it seems to me in all cases thought that the firearm was real and that there was a real risk that they might be shot if they did not comply with the directions. But in terms of assessing the objective criminality as a matter of fact I accept that the offender was using a replica or toy firearm and that in fact it was not capable of any serious harm to the victims, except as a result of their being frightened.
The second substantive offence in time occurred on the 4th of July 2010 and it is a charge, namely, Sequence 7, that on the 4th of July 2010 at Matraville the offender robbed the named victim of the sum of $350 whilst armed with a firearm. When sentencing for this matter the offender asks me to take into account two additional offences, being Sequences 3 and 5.
Sequence 3 is also an aggravated armed robbery offence, which occurred on the 6th of June 2010 in which the offender robbed the named victim of the sum of $700 whilst armed with a firearm. The second Form 1 offence relevant for this matter is Sequence 5 and is contrary to S97(1), that on the 27th of June at Balmain he robbed the named victim of $300 whilst armed an offensive weapon, namely a knife.
The relevant facts for the substantive offence are that about 5.45 on Sunday the 4th of July the offender and another male went into a pharmacy in the Bunnerong Road at Matraville. The offender was wearing ordinary clothes and sunglasses. He was carrying a black firearm in his right jacket pocket. He approached the 47 year old female pharmacy manager at the front counter and turned his body so she could see the handle of the gun sticking out of his right pocket. He told her that he wasn't going to hurt her but he just wanted the money. She handed over a bag of money that was in her hand which totalled about $350. The co-offender at the same time went to the other female employee working in the store and she saw the knife protruding from the sleeve of his jacket. She screamed, but the offender then shouted, "Don't hurt her. I've got the money." They both ran from the store. All of this is captured on closed circuit television, as were all of these offences, and in all cases this depicted the offender as being involved.
The facts for the first Form 1 offence, that is, Sequence 3 are that about 1pm on Sunday the 6th of June the offender went into a convenience store in Military Road Neutral Bay. He approached the victim, the owner of the store, a 35 year old woman who was working there alone behind the counter. He told her that he had a gun and the victim saw that he was holding on to the handle of the gun tucked inside the top of his pants. He demanded money from her. She opened the cash register and took out all of the notes in the till, namely $700 and threw it at him. He picked it up after she did so and then he left. The victim was understandably very frightened and crying.
The facts for the other Form 1 offence, Sequence 5, are that at about 2.25pm on Sunday the 27th of June the offender and a co-offender went into a news agency in Balmain. The 46 year old owner was working behind the counter at the time. The second offender walked around behind the counter and stood near the victim while the offender stood in front of the counter opposite her. The offend produced a knife that appeared to have a silver blade and showed it to the victim by keeping it near the right side of his body, hidden, but so she could see it. He told her that he wouldn't hurt her and that he just wanted the money and to open the till. She did so. Both offenders reached into the drawer and removed the notes. The offender asked for more money and the victim, who was scared, pointed to the coins section, which was lifted up showing more notes underneath. The two offender took the additional notes and then ran from the news agency. They are the 2 Form 1 offences connected to this substantive offence, Sequence 7.
The substantive offence is, similarly to first substantive offence, aggravated beyond the statutory circumstance of aggravation by the fact that the offender was in company at the time. That aggravates it beyond the main circumstance of aggravation, that is, being armed with a dangerous weapon.
The third substantive offence is Sequence 10, an offence which occurred on the 26th of July 2010, being an aggravated armed robbery offence contrary to s 97(2) of the Crimes Act charging that the offender committed the offence at Ermington whilst armed with a firearm.
This offence occurred at 5.45am on Monday 26 July 2010, when the offender went into the Ermington news agency. He was carrying a shoulder bag, the same as used in many of the other offences for which I sentence him, and depicted on CCTV footage. He approached the counter and produced a black gun from the shoulder bag. He held it at stomach level and pointed it towards the shop assistant and said he didn't want to use it, he only wanted her to give him the money. He then put the gun back into the shoulder bag.
The victim pretended to open the cash register but pressed the emergency button. She pretended there was a problem with the cash register, the offender kept telling her to open the till, but she didn't. The defendant then demanded her wallet and grabbed her bumbag, which he saw on the counter. She tried to stop him and there was a short struggle before he was able to take the bumbag and he ran from the store.
It contained various personal items belonging to the victim, including credit cards, store cards, club cards, a licence, and her unopened wage envelope and other cash, with a total of $736. This too was depicted on CCTV showing the offender involved in the offence.
In assessing the objective criminality of that offence, it seems to me that it is elevated to an extent because of the actual physical contact that occurred between the offender and the victim at the time. It was however not of any seriousness amounting to a struggle, and as I understand it, on the facts put before me, of very short duration.
Not only however was this victim understandably distressed, but she was put at considerable personal inconvenience, it must be assumed, having lost not only her own personal wages and money, but also a licence, credit card, and the like, with all of the attendant difficulties in having them replaced.
The relevant additional offences for this substantive offence are Sequences 4 and 8. Sequence 4 is another aggravated armed robbery offence, which occurred at about 12.25pm on Sunday 27 June, when the offender went into the Meadowbank convenience store. He was carrying the same shoulder bag used in other offences.
The 55 year old store manager was working alone there. The offender approached the victim, opened the bag and partially pulled out the black gun. The victim froze in shock and the offender pulled the gun out again. The victim also saw a knife in the same bag. The offender said he did not want to hurt her, but to give him the money. He leant over the counter and took notes from the till amounting to about $200. He put the money in the bag and asked for money from under the counter. She said she didn't have any, and he then demanded cigarettes. She didn't reply and didn't give him any, and he then left the store, and she rang the police. She was understandably very frightened.
The additional offence, Sequence 8, is an armed robbery offence contrary under S97(1). It occurred on Thursday 8 July 2010 at about 3.20 in the afternoon when the offender entered a pharmacy on Lyons Road in Five Dock. He approached the 39 year old owner and manager, who was working at the back of the pharmacy. He told him to stand up and open the till. The offender was holding a kitchen knife at the time. He told the victim he didn't want to hurt him, but just to open the till. The victim was scared and asked that he not be hurt. The offender said he wouldn't as long as he went and opened the till. The offender took the victim's arm and led him to the till. He complied and opened the till and the offender took about $300 from it. He told the victim to go and get his wallet. At that stage the victim saw that the front door was open so he ran out and yelled for help. The offender ran from the premises. All of this too is captured on the CCTV depicting the offender committing the offence.
The fourth and last substantive offence for sentence is Sequence 11. This is also an aggravated armed robbery offence. It occurred at 4.50pm on Monday 26 July 2010. That is the afternoon of the day on which the offender committed substantive offence number 3, Sequence 10. The offender went into a news agency in Marion Street Leichhardt and approached the 40 year old store owner, who was working behind the counter at the time. He selected some lollies and placed them on the counter with some cash. As the victim began to process the transaction and open the till, the offender produced a black gun and put it on the cash register in front of the victim and demanded money. The victim took a step away in shock. The offender leaned over the counter and removed the money from the cash register, using both hands. While still holding the gun in one hand, he put everything in his pocket, said thank you to the victim, and ran outside. This too was all captured on the CCTV clearly depicting the offender. In all, as I understand the evidence, $3,000 was stolen during this robbery.
The relevant additional offences for this substantive offence are Sequences 9 and 10. Sequence 9 is an offence for assault with intent to rob whilst armed. This offence occurred at about 11.20am on Saturday 24 July 2010 when the offender entered a tobacconist in Glebe Point Road, Glebe. The 42 year old store owner was working behind the counter. The offender produced a knife and pointed it towards her, demanding that she open the till and give him the money. The victim backed away from the till and yelled out for help to passers-by and to people in the park across the street. As a result the offender ran away. This is all captured on CCTV.
This is not a completed robbery, it is an assault with intent to rob, and the assault, it seems to me, did not involve actual violence. To that fairly limited extent, it means that this form 1 offence is not objectively as serious as some of the other form 1 offences that I must take into account for the other substantive offences.
The remaining form 1 offence is Sequence 12, and it is an offence to steal from a person. It occurred on 24 July 2010 whilst the offender was running from the tobacconist shop in Glebe Point Road. He ran past a bus stop where the 22 year old female victim was waiting for a bus. She had her wallet out of her handbag holding it in her hand. As he ran past her, he grabbed it and kept running. She screamed and then started chasing him across the road. She lost sight of him momentarily and asked a member of the public to help her. They both went to a driveway in a nearby block of units and saw the offender there. The offender walked to the victim and the male who was assisting her, and the victim said "Give me my wallet". He said to take it and gave it back to her, and then turned and ran away.
In the circumstances of this offence, and also because of the section under which this offence is charged, it is true, while being a serious offence, it is not as serious as some of the other form 1 offences that I take into account on the substantive matters. As I understand the facts, whilst no doubt the victim was frightened and shocked, in fact, her property was recovered and nothing was stolen.
That as I understand it, deals with all of the relevant facts for all of what are in effect the 13 offences for which I sentence the offender.
The offender was arrested on 6 August 2010. When police tried to stop the car that he was in. It accelerated away from the police and then stopped. The offender got out of the passenger side and tried to hide between some parked cars and the vehicle then drove off. The police found him hiding in between the parked cars. He initially gave them a false identity, but was arrested and taken to a police station where his true identity was confirmed.
He engaged in a record of interview shortly after his arrest, where he was shown a number of CCTV images, from some, but not all of the 12 offences for which I sentence him. He confirmed that it was him on all of them. He engaged in a further record of interview on 26 August 2010 and was shown CCTV images for the remainder of the 12 offences, and again confirmed that it was him depicted in each of them. He made therefore admissions in relation to each of the 12 armed robbery or similar offences, for which I sentence him.
He thus, having escaped on 23 April 2010, was returned to custody on 6 August 2010 the day of his arrest, and has remained in custody ever since. He is now serving the balance of a non-parole period for a sentence which he was serving at the time of his escape.
He has a lengthy criminal record, which I will refer to again shortly. It includes offences of armed robbery or robbery in company with periods of imprisonment. His criminal record commenced in 1994 with offences of larceny. There were then some drug supply charges, an offence of violence, and some motor vehicle offences. He received a prison term for a number of counts of aggravated armed robbery and armed robbery in 1995. That was a term of 12 years with a nine year non-parole period. He was again convicted for robbery in company for an offence occurring in 2008 and sentenced to an overall sentence of five years with a three year non-parole period. That was the prison sentence he was serving at the time of his escape.
After being returned to custody from 6 August 2010, his sentence has been adjusted, and his current non-parole period for these pre-existing sentences does not now expire until 26 June 2012 with a two year parole thereafter. The sentences I impose for the aggravated armed robbery offences must therefore commence either on that day, that is from 26 June 2012, or some time beforehand. I will in fact be commencing those sentences from a period six months before 26 June 20012, that is, from 26 January 2012, to take into account in a very small way the totality overall represented by the armed robbery offences for which I sentence him, and the pre-existing sentences. I do not propose to backdate any further than that because, as will become clear, I propose an aggregate sentence for all of the armed robbery offences, which of itself takes into account some degree of totality, at least as relevant to those offences.
I now turn to deal with the subjective circumstances surrounding this offender. I will deal with that in fairly brief detail. I have had access to a psychologist's report, and also the offender gave evidence under oath. In that evidence he confirmed the history and other personal details recorded in the psychologists report.
He is now 36. He is the middle of three children. He was raised in Sydney in what I accept was a supportive and stable environment. Neither of his siblings have had problems with the police and it would appear that his parents and family generally have always been hard working respectable members of the community.
A defining moment in his life appears to have been the death from cancer of his grand-father when he was 15, a death which occurred fairly shortly after the cancer was discovered. He was very close to him, and I accept he was devastated. In fact, even when recounting this in the witness-box during the sentence, he was either close to tears or was crying, and this is an event which must have occurred now some 15 or 16 years ago.
Shortly after this event he started to get into trouble and ran away from home. He lived on the streets for about six months. He would go home for a while and his mother in secret would assist him by washing his clothes and giving him some food. He returned to his family home for a year before he went to prison for the first time at the age of 17. After that prison term he again went to live with his parents, but continued to have problems because his family, particularly his father, and not surprisingly, did not approve of his friends, and in particular, his drug use.
He went back into prison at the age of 22 and, as I said, served a nine year non-parole period. He was released in 2007 and reincarcerated not long afterwards. He stayed in prison until he escaped in April 2010, and, as I said, since 6 August 2010 has been back in custody.
Sadly, it would appear from the comments he made to the psychologist, that he feels to a very large extent institutionalised and feels normal whilst inside prison, as opposed to feeling an outsider when released into the community. The fact that he is now able to enunciate that to the psychologist indicates, it seems to me, a degree of insight, which provides some hope for his prospects of rehabilitation.
He has had ongoing contact with his family since going back to prison in August last year. I accept that he feels ashamed at having brought his family name into disrepute as a result of his crimes over the years. He continues to have a close relationship with his mother, but at present that is somewhat strained. She is currently suffering from cancer and is receiving chemotherapy. As I understand his evidence, he believes she has removed herself from him for the time being because she has become tired of dealing with his criminal offences and the incarceration. He anticipates regaining that relationship in due course, which it seems to me is likely to be the case. He has however regained a relationship with his father since being in custody on this occasion. I accept that his father and family generally will continue to support him whilst in custody, and on his release, which will increase his prospects of rehabilitation.
He has been educated to year 10 and has done two years of a carpentry apprenticeship. It was some time ago, however, and he did not finish that apprenticeship because he was sent to prison. He has worked casually in labouring jobs with family and friends on occasions when he has been out of prison.
It would appear to me there are some issues in relation to his health, perhaps not that which he feared when he escaped from prison, but in relation to his neurological health. He was involved in a car accident at the age of 15. He had bleeding on the brain and was in a coma for three months. There is no formal evidence before me of any brain damage, but I accept from the history that he gave to the psychologist, there is at the very least an indication of the possibility of some frontal lobe damage, which at some stage or other in his future he would benefit from having investigated. No doubt, his extensive use of drugs since then, will make any formal assessment of any brain damage rather difficult.
He was diagnosed with ADHD at nine years of age and prescribed medication, but his mother did not wish to give it to him, and as I understand, he did not use that medication. As I understand, he still has some problems along these lines. He started to use drugs, and his use of illegal drugs, it seems me, is the major issue surrounding this offender, both involving his commission of these offences and also any prospect of rehabilitation.
He started to use cannabis at 15, and at 17 he started to use amphetamines, including cocaine and ecstasy. Initially it was social use, but as is so often seen in these Courts involving criminal offenders, it escalated to a habit sometimes involving $3,000 a day. He was not able to pay that from legal sources and started to commit the criminal offences which are on his record to pay for his drug habit.
He started to use heroin whilst in prison custody in 2007 and became addicted to it in prison. It seems to me that is a sad state of affairs, and an indictment on the way in which our prison system is administered, but that is the case. I do accept that to be the case. I accept that on the evidence given by the prisoner, evidence of a similar nature given to me by prisoners over 15 years, and also the history that he gave to the psychologist.
It is a matter of great concern, and ought be a matter of great concern to the community, that people who are already drug addicts become addicted to yet another form of drugs whilst in prison custody under the care and control of the State of New South Wales. Nonetheless, I accept that to be the case.
After he escaped in 2010, it was not long before he started to use drugs again, including cocaine, amphetamine, and heroin, and he was continuing to use these drugs, particularly heroin, at the time he committed all of the armed robbery offences before me. I accept that he committed these offences in order to obtain funds to buy these drugs. That does not operate as an excuse, but provides an explanation for his behaviour, and also assists to an extent in determining his prospect of rehabilitation.
I accept that since going back into custody on this occasion he has not used prohibited drugs. Of course it must be said that he is now back in maximum security as an escaped prisoner, and I accept his evidence that access to the drugs is not so readily available in maximum security as it was when he was in minimum security.
He has been given the opportunity before to address his longstanding drug problem, but has not used it. I have before me the remarks on sentence of three other judges who sentenced him for armed robbery offences, all of whom have taken into account his longstanding drug addiction, and the sentences have attempted to give him an opportunity to address it.
In those circumstances his prospects of rehabilitation are guarded, but I accept that at least at present he demonstrates considerable insight into the connection between his drug use and his criminal offending, and also the fact that he would need to remain free of illegal drugs in order to effect true rehabilitation. I accept that he wants to undertake the drug rehabilitation program, both whilst he remains inside gaol and when he is ultimately released. His real prospects of rehabilitation, however good or poor they might be, are entirely dependent on his being able to remain free of drugs, and it seems to me with his longstanding drug problem he will need a longer than normal period of supervision in the community to do so, including the consideration of some residential drug rehabilitation on his release, should that be thought appropriate and if it is available.
Whilst he is not eligible for the compulsory drug rehabilitation program in prison, I accept that if it were ultimately to become available, or something of that type were available to him in custody, he would be involved in it, and it seems to me that his prospects of rehabilitation would be considerably enhanced if he were able to engage in some form of structured drug rehabilitation of the type offered by that compulsory program.
I also accept from the evidence that he has given that he is genuinely sorry, that is contrite and remorseful, for having committed these offences.
Having recited all of the relevant facts then for the substantive offences of aggravated armed robbery, and in fact for the additional two offences relevant for each of them, that is 12 offences in all, it seems to me clear that whilst none of the substantive offences is absolute identical, each of them is quite similar.
There are common features of aggravation, most significantly being the fact that he was an escaped prisoner at the time.
There are other common factors, which point towards lower objective criminality, including what I find to be relatively poor planning and the spontaneous and apparently random nature of the offences. There are also different and additional features of aggravation relevant for each of them, including for some the fact that he was in company with others, and the fact that he was armed additionally with a knife.
I have also made a finding that the gun he was using was not in fact a genuine firearm, and that is a factor to be taken into account, but it is common to all of the offences.
Whilst there are different features of aggravation relevant to each of them, it seems to me that they are not so different that any one of these four substantive offences stands out as being either less or more serious as the charge of aggravated robbery. Obviously the subjective case is the same for each, given that they were committed around the same time.
In these circumstances it seems to me that the same term of imprisonment would be appropriate for each of them.
The Henry guideline judgment is a relevant matter which I must take into account for each of these offences as a guideline. Each of the substantive offences is more serious than the typical case envisaged by the Court of Criminal Appeal in that decision. To start with, they are aggravated offences under S97(2). Further, the offender is neither young, nor does he have either no or only a limited criminal record. Also he was an escaped prisoner at the time, and for each case there are two additional offences to be taken into account in a meaningful way, each of which in their own right was a serious offence. These are differences which make these offences more serious than those referred to in the Henry decision.
There are some similarities, however, including the fact that, except for one where there was some wrestling, there was no actual violence and limited threats. Further, except for the offence where the sum of $3,000 was stolen, the money stolen was either small or minimal, and there is some similarity to the Henry guideline in that the offender was a drug addict, who committed the offences to obtain funds to satisfy that addiction.
The other distinction between these offences and the Henry guideline case is that these are early pleas of guilty, unlike the Henry guideline situation. Using the Henry guideline of 4 to 5 years overall as a guideline these are more serious, but in using that as a guideline to obtain the appropriate starting point for these sentences, it is appropriate that I reduce it by a further amount of about 15 percent to take into account the fact that these are early pleas of guilty and so that the offender is given the benefit of a full 25 percent discount for the pleas, both to take into account of course their utilitarian value, but also because they come under the provisions of the Criminal Case Conferencing Trial Act .
In these circumstances it seems to me that for each substantive armed robbery offence, taking into account the Form 1 offences, a starting point of 8 years for each is appropriate, and when that is reduced by a further discount of about 15 per cent that gives rise to an overall term for each of 7 years, which it seems to me is the appropriate overall sentence for each of these substantive offences. I indicate that if I were sentence him for these separately I would set an overall sentence of 7 years for each of the substantive offences.
Section 53A of the Crimes (Sentencing Procedure) Act allows me to impose an aggregate sentence of imprisonment in relation to two or more offences. This cannot include for this matter the escape offence, but is available for each of the armed robbery offences. Given the nature of all of the offences, particularly the similarities amongst them which I have already referred to, it seems to me that this is an appropriate case to do so. During submissions it was raised with counsel and no submission contrary was made.
I indicate to the offender therefore that for each of the armed robbery offences I will be imposing an aggregate sentence pursuant to S53A of the Crimes (Sentencing Procedure) Act . Further, pursuant to S3A(2), and for the reasons I have set out above, I indicate that I would have imposed a separate overall sentence for each of them of 7 years, had I not been imposing these aggregate sentences. Taking into account issues of totality it seems to me that the aggregate overall sentence for each should be 10 years imprisonment.
There are special circumstances, including that to which I have already referred, namely that the offender will need a longer than normal period of supervision in the community to make good his rehabilitation, both in relation to his long standing drug addition and also because he will have served a very long period of time in prison by the time he is released and so is likely to become further institutionalized. Further, there is in effect a degree of partial accumulation.
It seems to me that on that finding of special circumstances, a non-parole parole period overall of 6 years is appropriate.
I then must impose a sentence for the escape charge which, pursuant to S57, must commence at the expiration of the non-parole period for the other armed robbery offences. Having characterised it as I have earlier in these Reasons for Sentence, it seems to me there should be an overall sentence of 2 years imprisonment for that offence and on a finding of the same special circumstance, I will be setting a non-parole period of 12 months to commence at the expiration of the non-parole period for the armed robbery offences. That will in effect mean an overall period of imprisonment for this prisoner of 7 years and an overall parole of 3 years.
I will commence these sentences, as I have said, from the 26th of January 2012, by backdating 6 months from the date at which he is otherwise eligible for release to parole on the existing sentence.
For each of the offences the offender is convicted. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act the offender is sentenced to aggregate sentences for the offences of aggravated armed robbery, being Sequence 7, committed 4th of July 2010, (taking into account Form 1 offences Sequences 3 and 5), Sequence 10 committed 26th July 2010 (taking into account Form 1, Sequences 4 and 8), Sequence 11, committed 26 th July, 2010 (taking into account Sequences 9 and 12 on the Form 1), and Sequence 14, committed 27 th June, 2010 (taking into account Form 1 Sequences 6 and 13).
The aggregate sentence for each of the substantive offences is a non-parole period of 6 years commencing on the 26th of January 2012 and expiring on the 25th of January 2018, with a parole period thereafter of 4 years commencing on the 26th of January 2018 and expiring on the 25th of January 2022 giving rise to an overall aggregate sentence of 10 years commencing on the 26th of January 2012 and expiring on the 26th of January 2022.
For the offence of escape lawful custody, Sequence 2 committed 23 rd April, 2010, the offender is sentenced to a non-parole period of twelve months commencing the 26th of January 2018 and expiring on the 25th of January 2019, with parole thereafter of twelve months commencing from 26 January 2019 expiring 25 January 2020, giving rise to an overall term in prison of 2 years commencing 26 January 2018 and expiring 25 January 2020.
I direct that he be released to parole at the expiration of that non-parole period.
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Decision last updated: 19 September 2011
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