R v Miller; R v Panya

[2022] NSWDC 314

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Miller; R v Panya [2022] NSWDC 314

Hearing dates:

22 July 2022

Date of orders:

28 July 2022

Decision date:

28 July 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

Miller

See [98] to [104]

Panya

See [105] – [108]

Catchwords:

CRIME — Violent offences — Robbery in company

CRIME — Violent offences — Recklessly cause grievous bodily harm

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Legge v The Queen [2007] NSWCCA 244

R v Henry (1999) 46 NSWLR 346

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

ODPP NSW (Prosecutor)
Jarryd Miller (Defendant)
Piyabut Panya (Defendant)

Representation:

Counsel:
V Garrity (Prosecutor)
D Hawkins (Defendant – Miller)

Solicitors:
ODPP (Prosecutor)
McGirr and Associates (Defendant – Miller)
Ly Lawyers (Defendant – Panya)

File Number(s):

2020/187968
2020/187306

Publication restriction:

None

Judgment

Introduction

1. Jarryd Miller appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence H73359610	Offence	Maximum Penalty
14	Assault with intent to rob in company, armed with a dangerous weapon (victim Wang) contrary to s 97(2) Crimes Act 1900	25 years
9	Robbery in company, armed with a dangerous weapon (victim Ye) contrary to s 97(2) Crimes Act 1900	25 years
11	Robbery in company, armed with a dangerous weapon (victim Cai) contrary to s 97(2) Crimes Act 1900	25 years

2. Mr Miller also asks the Court to take into account a further three counts of Robbery in company armed with a dangerous weapon on a Form 1 when dealing with sequence 14.

3. Mr Miller is also in breach of three Community Correction Orders imposed in the District Court sitting at Port Macquarie on 12 May 2020, for offences of Drive in a Manner Dangerous and Drive Whilst Cancelled. The bonds were imposed on appeal, in lieu of sentences of imprisonment of three months and one month respectively.

4. Piyabut Panya appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence H3364610	Offence	Maximum Penalty and SNPP
14	Reckless grievous bodily harm in company (victim Wang) contrary to s 35(1) Crimes Act 1900	14 years SNPP – 5years
15	Attempted robbery in company, armed with a dangerous weapon (victim Wang) contrary to s 97(2) Crimes Act 1900	25 years
9	Robbery in company, armed with a dangerous weapon (victim Ye) contrary to s 97(2) Crimes Act 1900	25 years
11	Robbery in company, armed with a dangerous weapon (victim Cai) contrary to s 97(2) Crimes Act 1900	25 years

5. Mr Panya asks the Court to take into account a further three counts of Robbery in company armed with a dangerous weapon on a Form 1 when dealing with sequence 15.

Approach to Sentencing

6. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999.

7. The offenders entered pleas of guilty in the Local Court and are entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

8. To the extent that I make findings of fact adverse to an offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to an offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

9. Standard non-parole periods do not apply when an offender pleads guilty, but they can still be used as a guidepost to an appropriate sentence.

Agreed Facts

10. The parties tendered an Agreed Statement of Facts that can be summarised as follows.

11. Mr Miller is presently 26 years of age. Mr Panya is presently 25 years of age.

12. The co-accused in this matter are Deting Kong, presently 36 years of age and Jason Kim, presently 25 years of age.

13. In the period leading up to 13 June 2020, Guangyu Wang invited nine people to his home unit in Wolli Creek to play poker. Mr Wang’s unit and the elevator to the unit was only accessible through the use of a security pass or authorisation via an intercom.

14. Mr Wang regularly hosted poker games and had played poker with Mr Kong on a number of occasions, at each other’s homes and at other venues. On 13 June 2020, Mr Kong contacted Mr Wang and asked him if there was a poker game on that day. Mr Kong told Mr Wang that he would attend.

15. As a result of an unrelated investigation, Police were intercepting the mobile telephone services of Mr Miller and Mr Dorzheh.

16. On 13 June 2020, Police intercepted calls between Mr Miller and Mr Panya discussing a plan to rob a poker game at about 8.00pm that night. The conversation referred to Mr Kim as the intended driver. The conversations included the following. It should be noted that the conversation between Mr Panya and Mr Dorzheh occurring at 5.16pm, was not tendered against Mr Miller.

Conversation between	Time	Content
Miller [JM] (XXXX) and Panya [PP] (XXXX)	3.23pm	PP:   Game day mother fucker, it’s game day. You ready to play some games? JM:    Yes, I am PP:   Let me know within the next hour, two hours. Don’t go to sleep. Don’t fuckin side-track. I told you today you have to be on the ball JM:   I’m on the ball. Don’t worry I’m on the ball PP:   We got four hours bro. We are literally gona leave in four hours. Please, you have to be sharp JM:   Yeah I got ya, don’t worry PP:   Alright I’ll call ya back in two hours
Panya [PP] (XXXX) and Dorzheh [MD] (XXXX)	5.16pm	MD:   You know what you’re getting for you and Jarryd to use for your job? PP:   I don’t know what I’m getting, I could only get one … MD:   Bro, I will give you my Rolex if you let me use it for one hour. Please bro, please PP:   I don’t have it right now MD:   Bro, whenever you get it, please bro, please PP:   Alright I’ll come see you after … let me do what I gotta do first and I’ll come see you after … it’s gone be at 8 o’clock. 8 to 9 o’clock
Panya [PP] (XXXX) and Miller [JM] (XXXX)	5.19pm	PP:   Are you ready? JM:   Fucking yeah I’m ready PP:   I think my mate might be asleep, my driver. Oh wait he’s awake. Alright sweet everything is booked. So 8 o’clock JM:   Easy, easy
Panya [PP] (XXXX) and Miller [JM] (XXXX)	5.25pm	PP:   I’m trying to get myself ready for today cuz. I can’t deal with 2 things at once bro. It’s 5:30 right now, we have 2 and a ½ hours before we get picked up … I was like fuck I got something to do bro that’s way more important JM:   Which was pre-organised, pre-planned and he knew that bro PP:   This is happening today cuz, this took 2 days of planning cuz JM:   That’s what I mean PP:   Fuck that, I put too much, I put work into this Cuz. Fuck that

17. Mr Kim drove to Mr Panya’s house and picked up Mr Miller and Mr Panya. They then proceeded to Mr Wang’s unit.

The poker game

18. Between about 4.30pm and 6.00pm, eight people arrived at Mr Wang’s unit to play poker.

19. At 8.25pm, Mr Kong arrived at Mr Wang’s unit block. CCTV footage depicted Mr Kong approaching and speaking with Mr Panya and Mr Miller near a Honda Jazz motor vehicle. Mr Panya got back into the vehicle. Mr Kong and Mr Miller walked towards the unit block. Mr Kong used the intercom to seek entry to the building and Mr Miller followed closely behind him. They then travelled to Mr Wang’s apartment on Level 6 of the building.

20. Mr Kong attended the poker game, while Mr Miller walked back down the fire stairs to the ground floor, chocking the fire door open on that level. Mr Panya and Mr Miller then entered the building via the fire stairs, proceeding to level 6 and knocking on the door to Mr Wang’s unit. When Mr Wang opened the door, the offenders entered the unit. Mr Panya pointed a gun at Mr Wang, who immediately crouched down.

21. One of the offenders said, “Hands up” and “get on the ground”. He demanded money and to know who the host of the game was. Mr Panya pointed the gun at Mr Ye and said, “I am going to kill you, take everything out”. Mr Ye was scared and took about $500 in cash out of his pocket and threw it on the floor, saying, “please, please, I give you everything”. Mr Panya then struck Mr Ye in the head causing him to bleed.

22. The remainder of the occupants of the unit were cowering under the poker table.

23. Mr Wang confronted the offenders saying, “Don’t’ hurt anyone, I’ll give you the money”. Panya turned to face Mr Wang, while still holding the gun. During a struggle with Mr Wang, the firearm went off. A 9 mm calibre bullet struck Mr Wang in the mouth, coming to rest in the back of his jaw. The bullet removed several of Mr Wang’s front teeth, a portion of his jaw and caused several fractures, with some of his teeth and fragments landing on the poker table in front of him.

24. After the shot was fired, the occupants of the unit threw their mobile telephones and wallets towards the offenders. One of the offenders kicked Yuan Xue. Mr Miller and Mr Panya collected the cash, wallets and mobile telephones of the victims putting them into a backpack. One of the offenders told the victims not to call the Police because they had their names and addresses. Mr Miller and Mr Panya then ran to the fire exit. On their way down the stairs, they discarded several of the mobile telephones. On exiting the fire stairs, they got into the vehicle and drove away.

25. The following was stolen from the occupants of the unit:

• Mr Ye – black iPhone, $500-$600 in cash and a purse containing $4,000-$5,000 in cash;

• Mr Xue – mobile telephone, wallet containing his identification and bank cards and $1,000 in cash;

• Mr Cai - $500-$600 in cash from his pocket;

• Mr Al – a bag containing a couple of thousand dollars in cash, his keys and wallet;

• Mr Cui – wallet containing $4,000-$5,000 in cash.

26. Mr Wang attended St George Hospital where he received treatment for his injuries, which included a fractured mandible, a laceration to his tongue, missing teeth, a wound to the gingiva (which provides a seal around the teeth). Mr Wang required surgery to remove a bullet fragment from his jaw and to insert arch bars plates and screws, which were removed in a later surgery.

27. On 24 June 2020 Mr Miller was arrested at a house in Premulwuy. Police executed a search warrant and located clothing worn at the time of the offences. Mr Miller declined to be interviewed.

28. On the same day, Mr Panya was arrested at his home in Homebush. Police executed a search warrant and located a black backpack that later tested positive for gunshot residue and a high visibility vest seen on the CCTV footage taken at the time of the offences. Mr Panya participated in an electronically recorded interview but declined to comment on the allegations.

Mr Miller’s Case on Sentence

29. Mr Miller tendered the following documents:

1. report of Dr Olav Nielssen, Forensic Psychiatrist, dated 30 March 2022;

2. Discharge Summary, Port Macquarie Base Hospital, dated 5 June 2016;

3. letter from Janene Sheehan dated 23 January 2022;

4. letter from Jacqueline Furey dated 24 October 2021;

5. letter from Tim Richards (undated), Senior Overseer Mid North Coast Correction Centre;

6. correspondence from Shine Lawyers dated 15 March 2022 and 16 March 2022;

7. Certificate of Completion for Salvation Army Positive Lifestyle Program dated 28 April 2021.

30. Mr Miller was also called to give evidence before me and was cross-examined. His evidence largely confirmed the contents of the documents tendered on his behalf, so I will return to it shortly.

Dr Nielssen’s report

31. Dr Nielssen interviewed Mr Miller by audio-visual link on 21 February 2022 and 16 March 2022, for the purpose of preparing his report. The content of Dr Nielssen’s report can be summarised as follows.

32. Mr Miller gave a history to Dr Nielssen that the offences arose as a result of “hanging around the wrong people” and “a difficult upbringing which led to bad decision making”. Mr Miller said that the initial arrangement was to confront one of the participants in an informal poker game that one of his co-accused knew to be regularly held in that apartment in Wolli Creek. Mr Miller said that he had agreed to provide support to his friend who had had a disagreement with one of the people who attended the game. He did not take a weapon. Mr Miller described the incident as there being “a disagreement between the victim and my co-accused … a gun misfired and the bullet lodged in his jaw and knocked out six of his teeth … I took their wallets and their IDs and told them not to call the police”. Mr Miller told Dr Nielssen that he came to the attention of the police straight away because his phone was being intercepted and he was arrested 11 days after the offence. Mr Miller did not previously know the people in the poker game who were of Asian heritage, as were his co-accused. He told Dr Nielssen that he has received threats of reprisal in prison.

33. Mr Miller described himself at the time as having very impulsive decision making and being very erratic. He was using cocaine which further affected his judgment and decision making. He was taking as much as 3 grams a day and managing to function but experiencing a deteriorating mental state. He did not take cocaine in the days before the offences or on the day of the offence itself. At the time of the offence, he was living with a friend and not working because of the Covid lock down. He had plans to get a job and a girlfriend and to live a normal life prior to becoming involved in the offence.

34. Mr Miller gave a family history of mental illness. He said that he did well at school when he applied himself but his home life was very strict and he went to school to enjoy himself. His father was a heavy drinker and drug user and could be extremely violent, unpredictable and ruthless. Mr Miller gave a history of injuries from severe physical punishments. He further suffered a sexual assault by a teacher at age 14. He was given a sedating drug and woke up during the course of the assault. He felt that the assault “derailed him” and he kept it to himself until recently but had planned to report it to the police in the future.

35. He stopped going to school in about Year 9 and then re-enrolled in Year 10 but turned up here and there. He was competent at sports and at one stage hoped to be a boxer in the lightweight division but his boxing aspirations were cut short by a shoulder injury.

36. Mr Miller gave a history of being admitted to psychiatric wards on two occasions. He experienced mental breakdowns and did not have anyone to turn to. He felt that he was irrational, suffering from significant depression and anxiety and extremely suicidal. He had been abducted by criminal associates of his father prior to one of these admissions which the doctors believed to be a paranoid delusion. He was offered medication, which he did not take. He could not recall being offered outpatient follow-up for these admissions. At some point he was prescribed Valium by his general practitioner which he took for a year to help withdrawal from cannabis and cocaine. He had also been prescribed a mood stabiliser, Valproate, commonly prescribed for Bipolar disorder.

37. Mr Miller reported some periods of good mood when he felt optimistic and had increased energy levels and decreased need for sleep, racing thoughts and did some things that he regretted. He also recorded periods of severe depression with poor sleep, loss of appetite and weight, reduced energy, negative thinking, withdrawal from company and thoughts of suicide. He denied having typical symptoms of schizophrenia-like psychosis such as hallucinations or delusions.

38. Mr Miller told Dr Nielssen that he presently felt in good health. He has been training two or three times a day whilst in custody.

39. Mr Miller commenced using cannabis about aged 16 and had some periods of regular and heavy use. He described himself as constantly trying to give up from age 18 and would give up cannabis for a couple of months at a time. He saw drug counsellors but always fell back into the habit. He began using cocaine at about the age of 18 until his arrest at age 24 with his doses and frequency of use increasing. He had informally obtained Xanax and used it along with the Valium to alleviate the withdrawals from cocaine.

40. Mr Miller was the only child to his parents and the youngest of his father’s six children, having three older half-sisters and two half-brothers, one of whom died from a brain haemorrhage at age 30. His father died from kidney disease about four years ago. He is still close to his mother and speaks to her several times per day from prison.

41. Mr Miller described his upbringing as affected by his father’s anger and violence and that he lived in constant fear of him. His mother was also subjected to severe physical abuse to the extent that he was surprised that she survived the treatment. When Mr Miller got to about age 15, his father became ill and he became stronger and the fear of his father subsided.

42. After leaving school he has worked in a variety of jobs and had been consistently employed until shortly before the Covid lock down. He has had one previous relationship of one year duration, which broke up after a terminated pregnancy.

43. Dr Nielssen opined that Mr Miller was suffering from substance use disorder and substance related mood disorder which were both in remission. Dr Nielssen noted his admissions to hospital for psychiatric treatment as well as the prescription of medication by his general practitioner together with a strong family history of mental illness. Dr Nielssen believed that Mr Miller has some positive prognostic indicators including good manners and other social skills, a good work ethic and a capacity for vocational training and some support in the community. Dr Nielssen opined that he would benefit from some drug counselling to prevent issues in the future.

Other documents

44. The remainder of the documents relied on by Mr Miller provide objective evidence of the history that he gave Dr Nielssen and I do not need to repeat those matters, but I have taken them into account.

45. I note that Mr Miller has been offered full-time employment as an apprentice electrician when he is released from custody.

Mr Miller’s evidence

46. Mr Miller was challenged in cross-examination to the effect that his description of the offences to Dr Nielssen was inconsistent with the agreed facts, in that there was an agreement between Mr Miller and Mr Panya to attend the premises for the purposes of committing a robbery. I am satisfied that by telling Dr Nielssen what he did that, Mr Miller sought to downplay his role in the offences.

47. Apart from that issue, Mr Miller’s evidence was consistent with the objective evidence and the history he provided to Dr Nielssen and I accept it as truthful.

Mr Panya’s Case on Sentence

48. Mr Panya tendered the following documents:

1. report of Mr Neil Ballardie, Consultant Psychologist, dated 20 October 2021;

2. affidavit of his sister, Pakteema Panya, affirmed 25 January 2022;

3. undated letter to the Court from Mr Panya.

49. Mr Ballardie saw Mr Panya on three occasions for the purpose of preparing his report. The content of the report can be summarised as follows.

50. Mr Panya was born in Thailand and arrived in Australia with his family at age one, growing up in the western suburbs of Sydney. He has one sister who took care of him when they were growing up because his parents were often working. He remains close to his sister and talks to her daily. His parents are still together but they often fought during his childhood. He would leave the house for periods of time to get away from their disputes. Mr Panya described his father as quiet, withdrawn and disengaged and drank alcohol to excess every day. He described his mother as controlling and critical of him. She physically abused him, hitting him with coat hangers, belts, rulers and other household items. He described his childhood as traumatic with his parents putting high expectations on him to exceed academically and professionally. He found his parents uncomfortable talking about their feelings and that they were never emotionally available for him.

49. Mr Panya had one romantic relationship for about two years that ended about six years ago. His girlfriend left to study overseas and he was upset by the break up. He has not had a subsequent relationship.

50. After finishing high school Mr Panya was involved in an incident where he was stabbed 14 times by a group of males. He was in intensive care for two months and then hospitalised for a further four months and was required to undertake rehabilitation for another two months. Mr Panya told Mr Ballardie that he almost died and that the experience was very traumatising. He often experiences anxiety about the incident and still thinks about it every day. He continues to suffer ongoing disability from the injuries sustained in the attack.

51. Mr Panya did not enjoy school, being a victim of bullying in Grades 1 to 4 because of his ethnicity and his weight. He achieved below average grades but enjoyed sport. He was not able to concentrate at school, being easily distracted and fidgety in class and found it difficult to complete projects. He was not always respectful of his teachers and engaged in disruptive behaviour.

52. Mr Panya was diagnosed with attention deficit hyperactivity disorder (ADHD) when he was about nine years of age and prescribed Ritalin which was changed to Concerta in about Year 8. Mr Panya reported hating taking the medication because it made him have no feelings and that he felt emotionless. He often refused to take his medication or spat it out after his mother gave it to him.

53. Mr Panya has worked as a concreter in his father’s business and then later as a concrete curer, work which he enjoyed. His employer ceased to give him work and owed him money which caused him considerable stress during the pandemic. He assisted his parents in their restaurant. Mr Panya likes to cook and would like a career in hospitality.

54. Mr Panya gave a history of commencing consuming alcohol when he was about 15 years of age. He would binge drink most weekends until about the age of 18 when his alcohol consumption reduced to small amounts of alcohol on social occasions. He first tried cannabis at age 14 but did not like it. He tried it again at age 16 and found that it helped him to feel normal. After his stabbing, his consumption increased to daily use which continued until he was taken into custody. He has previously wanted to cut down or cease his use but suffered overwhelming withdrawal symptoms when he tried to do so. Mr Panya first tried cocaine when he was 17 years of age and reported it to make him feel confident, very focused and normal. He used it once or twice a week until his incarceration. He has tried MDMA on a few occasions but did not like it because it made him feel paranoid.

55. Mr Ballardie opined that Mr Panya’s psychological functioning was adversely impacted by his family circumstances leading to negative ideations and leaving him susceptible to the development of anxiety and depression. His ADHD medication may have precipitated his anxiety which was greatly exacerbated by his stabbing. His experience of ADHD as a child and adolescent compounded his psychological distress and negatively affected his functioning, increasing his propensity for later drug use.

56. Mr Ballardie administered psychometric testing which confirmed Mr Panya’s experience of symptoms of depression, anxiety and stress.

57. Mr Ballardie considered Mr Panya’s symptoms to be consistent with a major depressive disorder, generalised anxiety disorder, adult attention deficit hyperactivity disorder, post traumatic stress disorder and drug use disorder.

58. Mr Panya told Mr Ballardie that he accepted the seriousness of his behaviour and that it had hurt a lot of people. He understood what trauma is like and the psychological damage it could have done to the victim. Mr Panya stated he was very sorry that he “did this to him”. He acknowledged what he had done was wrong and regretted his behaviour. Mr Ballardie opined that he had taken responsibility for his actions and did not attempt to justify or minimise the offences in any way.

59. Mr Ballardie opined that Mr Panya’s anxiety, depression, post traumatic stress disorder and ADHD all had a negative impact on his decision making at the time of the offences.

60. Mr Ballardie says Mr Panya is a low to medium risk of re-offending. He believed a custodial sentence would cause him more psychological distress and that he would find it harder to serve a sentence if imprisoned by reference to his mental conditions. Mr Ballardie opined that Mr Panya requires specialised treatment that is not available in custody. Mr Ballardie recommended that Mr Panya attend counselling, undertake a drug and alcohol programme and seek mental health treatment for his conditions.

61. Mr Panya’s sister shares a close bond with him. They went to the same primary school but different high schools. She described him as not very academic and not enjoying school much. He was good at practical subjects including woodwork and physical education. He played rugby at school and liked sport. He commenced an apprenticeship to become an electrician whilst he was at high school but his sister was unaware as to whether he finished that course or ever completed any electrical work. Whilst his sister acknowledged that their parents had arguments during their adolescence and early adulthood, she never witnessed any sort of violence against her brother by any member of her immediate family.

62. She described Mr Panya as her protector and supporter and as someone who would intervene with their parents on her behalf. He made her feel loved, respected and valued. Even when he moved out for about six months they remained very close and he saw her regularly.

63. She has stayed in close contact with him whilst he has been in custody, by phone and audio-visual means. She described his incarceration as being hard on her and her parents. She misses her brother dearly and has struggled with her family’s expectations since he was incarcerated. She has taken over his place to look after the family including working in the family restaurant.

64. Mr Panya’s sister was saddened by the fact that he could not attend her graduation from university. Mr Panya deposed that her entire family was completely shocked and disappointed with Mr Panya when he was arrested. Her parents blamed themselves. Mr Panya has remained in close contact with his mother. Mr Panya has expressed remorse to his sister and told her that he wants to help his parents with the restaurant when he is released from custody.

65. In Mr Panya’s undated letter to the Court, he expresses his sincere apologies and remorse for his actions. He states he takes full responsibility for his error in judgment for the crimes he has committed. He described his childhood as difficult with his parents working multiple jobs to make ends meet.

66. He took medication for his ADHD and saw a psychologist on a weekly basis. He later self-medicated and experimented with other drugs. He described the severe injuries sustained in the stabbing and the long path of recovery that he has dealt with.

67. He expressed a sincere apology to the victim and his family for the trauma and pain that his actions have caused. He described his behaviour as “absolutely inexcusable, reckless and irresponsible”. He expressed a deep apology to the community for the fear that his actions caused. He states that he has had time whilst in custody, to reflect on his actions and choices and is determined to rehabilitate himself and change his life for the better.

68. There is conflicting evidence in Mr Panya’s subjective case about the nature of his parent’s relationship and his mother’s treatment of him as a child. Mr Panya’ history given to Mr Ballardie is not supported by his sister’s evidence, or by any other objective evidence. I accept that Mr Panya suffers from a combination of mental conditions, and that they have had a significant impact on him.

Objective Seriousness

71. The Henry guideline is applicable in these sentence proceedings: R v Henry (1999) 46 NSWLR 346. The guideline provides 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].

72. The weapon involved in the offences was a loaded firearm capable of causing death or serious personal injury. It was wielded in a confined space where there were a number of people and this increased the potential for its use.

73. The offences involved actual violence and threats of significant violence, including death threats and threats of reprisal if the victims went to the Police.

74. The amount taken was significant, exceeding $10,000.

75. The offences involved some planning in telephone calls over a number of days and the involvement of an “inside” man and a dedicated getaway driver. The offenders targeted the poker game where they anticipated that the players would be in possession of significant sums of cash. I am not satisfied beyond reasonable doubt on the evidence that the aggravating factor provided for by s 21A(2)(n) Crimes (Sentencing Procedure) Act 1999 is established.

76. There were a number of victims in the robbery offences.

77. Mr Wang suffered serious injuries that will have a life-long impact on him. Mr Panya caused Mr Wang grievous bodily harm through the use of the firearm and was reckless as causing actual bodily harm.

78. The offences were committed in company. The robbery offences were committed for financial gain.

79. The circumstances of Mr Miller’s deprived upbringing justify a finding that his moral culpability for the offences is reduced. He was exposed to violence, alcohol abuse, drug use and was the victim of a sexual assault. He mental health suffered as a consequence and he turned to drugs to self-medicate. His use of drugs had further adverse impact on his mental health and decision making.

80. Mr Panya suffers from a number of mental conditions that have impacted him from childhood. The stabbing attack on him was a major cause of his PTSD. He has also used drugs as a means of coping with his mental conditions. His poor mental state impaired his judgment and decision making at the time of the offences. It is appropriate to find that his moral culpability for the offences is reduced.

81. I have taken into account the maximum penalties for the offences and the standard non-parole period for the s 35 offence.

Deterrence

82. General deterrence is of significance to the offences before the Court. The penalty imposed for the offences must signal to other contemplating committing these types of offences, that they will be met with significant punishment.

83. General deterrence can be afforded less weight where the offender suffers from a mental condition they are not an appropriate person to be made an example of.

84. There is also a need for specific deterrence, but it is reduced because each offender has responded positively to the offences and taken responsibility for their actions and their rehabilitation.

Aggravating Factors

85. The offences occurred in Mr Wang’s home.

86. Mr Miller committed the offences while he was on conditional liberty.

87. The injury, loss or harm caused by the s 35 offence committed by Mr Panya was substantial. The use of the gun by Mr Panya involved a grave risk of death to Mr Wang.

Mitigating Factors

88. The offenders did not have any significant record of prior convictions.

89. Each offender has good prospects of rehabilitation.

90. Mr Miller has support from his mother and an offer of full-time employment. He presents as polite and being socially well-adjusted. He has demonstrated that he has a good work ethic in prison. He has abstained from drugs and improved his physical condition. I am satisfied that he is dedicated to rehabilitating himself.

91. Mr Panya has strong family support and a good work history. I accept that he now understands the seriousness of his mental conditions and the impact that they have had on him. I am satisfied that he intends to address his mental health and that is likely to stop his drug use.

92. The offenders have each accepted responsibility for their actions and expressed remorse to the victims and the community. I accept that each has insight into their offending conduct and I accept that they are truly contrite.

93. The offenders have each pleaded guilty and that also indicates remorse.

Other Matters

94. I have considered s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

95. Each offender has been in custody since 24 June 2020, bail refused in respect of the offences for which they stand to be sentenced. In relation to Mr Miller, I will back date his sentence to 24 July 2020, to take into account how I will deal with the call-up matters. In relation to Mr Panya, I will backdate his sentence to 24 September 2020, to take into account a fixed term of imprisonment of 5 months imposed on him for an offence of riot committed whilst he was in custody.

96. I have taken into account the need for parity in the sentences imposed. The difference in the sentences imposed are necessary to recognise the different roles of the offenders, the possession of and use of the gun by Mr Panya including the concession that the Crown could not prove that Mr Miller knew that Mr Panya had the pistol until it was produced, the number of charges faced by each offender and the differences in the subjective cases.

Call-up – Mr Miller

97. I have had regard to the facts of the offences for which Mr Miller is being called-up. In the circumstances, it is appropriate to reinstate the custodial sentences originally imposed on him in the Local Court for these offences. The sentences for these offences will be partially accumulated on each other and with the sentences for the robbery in company offences.

98. I find the breach of bonds established.

99. In relation to the offence of Drive whilst Cancelled (being sequence 1, H71545011), Mr Miller is sentenced to a fixed term of 1 month imprisonment to date from 24 June 2020 and expire on 23 July 2020.

100. In relation to the offence of Drive in a Manner Dangerous (being sequence 2, H71545011), Mr Miller is sentenced to a fixed term of 3 months imprisonment to date from 8 July 2020 and expire on 7 October 2020.

Penalty – Mr Miller

101. Jarryd Miller is convicted.

102. This is an appropriate matter to impose an aggregate sentence pursuant to s 53A 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:

Sequence H73359610	Offence	Indicative Sentence
14	Assault with intent to rob in company, armed with a dangerous weapon (victim Wang) taking into account the matters on the Form 1	6 years
9	Robbery in company, armed with a dangerous weapon (victim Ye)	5 years
11	Robbery in company, armed with a dangerous weapon (victim Cai)	4 years and 9 months

103. I make a finding of special circumstances. This is Mr Miller’s first time in custody and he has addiction and mental health issues that justify an extended parole period.

104. I impose an aggregate term of imprisonment comprising of 7 years, with a non-parole period of 4 years to date from 24 July 2020. The non-parole period will expire on 23 July 2024 and the head sentence will expire on 23 July 2027. The offender will be eligible to be released on parole on 23 July 2024.

Penalty – Mr Panya

105. Piyabut Panya is convicted.

106. This is an appropriate matter to impose an aggregate sentence pursuant to s 53A 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:

Sequence H3364610	Offence	Indicative sentence
14	Reckless grievous bodily harm in company (victim Wang)	3 years with a non-parole period of 1 year and 9 months
15	Attempted robbery in company, armed with a dangerous weapon (victim Wang) taking into account the matters on the Form 1	6 years and 6 months
9	Robbery in company, armed with a dangerous weapon (victim Ye)	5 years and 6 months
11	Robbery in company, armed with a dangerous weapon (victim Cai)	5 years

107. I make a finding of special circumstances. This is Mr Panya’s first time in custody and he has significant mental health and addiction issues that justify an extended parole period.

108. I impose an aggregate term of imprisonment comprising of 8 years, with a non-parole period of 4 years and 9 months to date from 24 September 2020. The non-parole period will expire on 23 June 2025 and the head sentence will expire on 23 September 2028. The offender will be eligible to be released on parole on 23 June 2025.

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Amendments

08 August 2022 - [104] typographical error, correction made to parole date.

Decision last updated: 08 August 2022