R v Murphy

[2014] NSWDC 382

District Court

New South Wales

Medium Neutral Citation:

R v Murphy [2014] NSWDC 382

Decision date:

17 March 2014

Jurisdiction:

Criminal

Before:

Judge S Norrish QC

Decision:

Armed Robbery: Sentenced to a term of imprisonment of 2 years and 9 months with a non parole period of 8 months.

Armed Robbery: Sentenced to a term of imprisonment of 2 years and 9 months with a non parole period of 8 months.

Armed Robbery: Sentenced to a term of imprisonment of 1 year and 7 months with a non parole period of 11 months.

Attempted Larceny: Sentenced to a term of imprisonment of 6 months.

Total sentence: 3 years imprisonment, non parole period 11 months.

Catchwords:

Criminal - Sentence, armed robbery, totality, young offender, s 11 remand, discount for plea of guilty.

Legislation Cited:

Children (Criminal Proceedings) Act.

Cases Cited:

R v Hearne [2001] NSWCCA 37
R v Henry & Ors (1999) 46 NSWLR 346
Kovacevic v R (2000) 111 A Crim R 131
R v Lattouf (unrep 1996 NSWCCA)
Pearce v The Queen (1998) 194 CLR 610
R v Blackman & Walters [2001] NSWCCA 121
R v Palu [2002] NSWCCA 381
R v Trindall [2002] NSWCCA 364
Veen (No 2) v R (1988) 165 CLR 465
Yardley v Betts (1979) 22 SASR 108

Category:

Sentence

Parties:

Director of Public Prosecutions - Crown
Henry Murphy - Offender

Representation:

Counsel:
 Ms J Levick - Offender

  Solicitors:
Mr Lee - Director of Public Prosecutions

File Number(s):

2013/00272292

sentence

1. HIS HONOUR: Henry Murphy appears today for sentence in relation to four offences to which he pleaded guilty at the Local Court and continued his pleas of guilty in this Court.

2. All the offences were committed on the one day, that is in the early hours of 9 September 2013 and they were committed within a short period of time of one another. They were respectively offences of armed robbery with an offensive weapon committed upon Ximing Ilinj, Derrick Wong and Alcantara Castillo, and one offence of attempting to steal property from a motor vehicle. I will deal with the facts of the matters in a moment.

3. The maximum penalties for the three armed robbery matters are in each case 20 years imprisonment. There is no standard non-parole period. The maximum penalty for attempted larceny is seven years imprisonment.

4. The prisoner was arrested on the morning of the offences and has been in custody since 9 September 2013. All time in custody will be taken into account.

5. The prisoner was born, as I understand it, on 19 March 1994 and thus at the time of the commission of the offences was 19 years of age, about to turn 20 years of age on 19 March this year.

6. The facts are that in the early hours of the morning the prisoner robbed the victims Ilinj and Wong as they were standing outside a building in the University of New South Wales having a cigarette during a break from studies and or research. The prisoner accosted the victims with a knife described as a ‘kitchen style’ knife. The prisoner pointed the knife at Mr Wong’s neck asking him for his wallet or else he would stab him and he waved the knife approximately 15 to 20 centimetres from Wong’s face. Wong took his wallet out of his back pocket and handed it to the prisoner. The prisoner also asked Ilinj for his wallet and also threated Ilinj with the knife in his possession. Ilinj removed his wallet, held it out to the prisoner and the prisoner took a $20 note that was sticking out of the top of the wallet. Mr Wong asked the prisoner if he could have his student card and the prisoner handed him back his wallet and Mr Wong removed his student card and handed the wallet back to the prisoner. As he walked away he called out “Don’t call the police”. He continued to walk around the university grounds in the meantime having disposed of the wallet and its contents, dropping them on the ground.

7. About ten minutes later he approached a white Subaru Liberty station wagon parked in the university grounds in Science Road. The next victim, Mr Castillo, was seated in the front driver’s seat with the window wound down on his side. The prisoner held a knife towards Mr Castillo’s neck and said, “Give me your money or I’ll cut your fucking face”. The victim fearing for his safety and given the proximity of the knife to his skin reached into the centre console, grabbed a hand full of loose change handing it to the prisoner and the prisoner walked away. It would appear that the police were notified. Police spoke to Mr Castillo. He told them of the prisoner’s appearance. The prisoner was seen by police. He threw a knife in his possession, as well as a screwdriver and tried to walk away. The police gave chase, but he was arrested. The prisoner had, as it is particularised in the Court Attendance Notices, stolen from the victim Ilinj the sum of $20, Wong, the brown wallet and from Castillo $20 in loose change. The proceeds of this robbery were very small indeed, but of course the use of a weapon and the threat to the victims renders the crimes as serious ones obviously.

8. The police recovered the cash on his person. They also found another item, a box cutter, in his pants pocket although there is no suggestion that the prisoner had threatened anybody or used the box cutter or the screw driver in his possession.

9. The facts of the attempted larceny are intimately connected. The car in question which he broke into was secured in a car park. The prisoner smashed the passenger side window to the vehicle and rummaged through the contents of the car and found nothing of value. Police undertook various tests and took various samples from the scene and a DNA sample matching the DNA profile of the prisoner was located. Of course, the prisoner caused damage to the motor vehicle in his endeavour to obviously obtain a relatively small amount of benefit for himself.

10. The prisoner when arrested by police told them that he had robbed people so he could get money to feed his daughter. The prisoner at the time of the commission of the offence was in a partnership with a young woman, although as I understood the history that he gave at least one person, they were not residing together at the relevant time. The prisoner has a child who is aged less than one year. He admitted his guilt to the police and clearly on the basis of the material available to the Court was co-operative with them in their investigations.

11. The prisoner’s criminal history is comprised of a number of offences committed whilst a juvenile or amenable to jurisdiction in the Children’s Court. However, his record does him no credit. It reflects in fact a very disturbing trend in antisocial and violent behaviour, which is very much a reflection of some of the other material that has been tendered on his behalf in explanation of his upbringing and the difficulties that have beset him since he was a child.

12. He has findings of guilt in 2008 for assault occasioning actual bodily harm and affray for which he was placed on probation. He had a finding of guilt also in 2008 for common assault and robbery in company as well as having goods in custody suspected of being stolen or unlawfully obtained.

13. He was granted various forms of probation but came back before the Children’s Court charged with aggravated breaking, entering and stealing in company for which he again was given probation in 2010. In the meantime, he received a community service order in respect of the matters for which he had previously been given probation concerning the offences of assault occasioning actual bodily harm and affray. He had another charge dealt with at the same time, as best as I understand the record, but ultimately it is not entirely clear from the record given to me. He breached his probation and was ordered to serve community service for at least one of those damage property charges.

14. He has other findings of guilt for resisting police in the execution of their duty and for those again he received various orders of probation and the like. He has a finding of guilt in relation to a police pursuit offence, not stopping it would seem and driving dangerously, which matter was dealt with in November 2010 for which he was sentenced to serve seven months in custody by way of a ‘control order’, but that was suspended pursuant to the relevant provisions of the Children (Criminal Proceedings) Act. There was another offence also dealt with at the same time in the same way of taking and driving a motor vehicle without the owner’s consent. Finally, on 23 November 2010, he was dealt with in relation to using an offensive weapon to prevent lawful detention or apprehension and again he received seven months detention by way of ‘control order’ suspended pursuant to s 33(1)(b) Children (Criminal Proceedings) Act.

15. This criminal history not only does him no credit but it reflects upon the fact that over a period of time in a rather lenient way the offender has been dealt with in the Children’s Court by various mechanisms, probation, bonds, suspended sentences, community service, yet we find the offender committing the offences with which I am concerned.

16. It must be fairly said in his favour, although it is only a relatively minor matter, that as I understand the criminal history there would appear to be a break of almost two years between the last of the offending dealt with in the Children’s Court and the commission of the offences committed in September 2013 with which I am concerned.

17. In the defence case, I have a report from Mr Tim Watson-Munro a psychologist which sets out a great deal of history provided by the prisoner. I have a report dated 18 November 2013 prepared by an Alcohol and Other Drug worker and the Acting Manager, Offender Services and Programs, of the Department of Corrective Services. This is a joint report. I have material relating to a program of rehabilitation in respect of possible occupancy in a residential rehabilitation program attached to which are a number of details relating to rules and regulations relating to that particular program. I also have a number of references from persons that have known the prisoner primarily since he was very young, or since birth, being friends and associates of his parents.

18. The matter proceeded before me last Thursday on the basis that I would consider the remanding of the prisoner pursuant to s 11 Crimes (Sentencing Procedure) Act 1999 (‘the Act’) and would permit the prisoner to be released on bail to enter the residential program about which not only material is provided as I have outlined, but in respect of which the reporters, particularly Watson Munro and the people from Corrective Services, have largely directed their reports.

19. I indicated last Thursday that listening carefully to everything that had been put and reading the material I could not countenance the remand of the matter pursuant to s 11of the Act. In that regard I am mindful of what was said about s 11 remands in the decision of the R v Palu [2002] NSWCCA 381 and in a decision cited in the judgment of Howie J of Trindall from the same year [2002] NSWCCA 364. I appreciate of course that Smart AJ in Trindall reflected upon the proposition that to grant somebody a remand pursuant to the section with the understanding the person would later be sentenced to a term of imprisonment did not necessarily impose undue hardship on the offender, if the circumstances were such that the remand was for the purposes of determining the non-parole period. He noted, and I think most judges would understand this, many people offered the opportunity of a rehabilitation program rather than custody would “prefer to take their chances” to cite the words of his Honour from [62]. His Honour pointed out:

“Most believe that they will be able to demonstrate marked improvement or rehabilitation, for example, defeating a drug habit, obtaining employment, taking their medication regularly to keep a troublesome condition under control …. After all, going straight to gaol gives them no opportunity of avoiding that devastating experience or reducing the extent of that experience. For many, almost anything is better than that experience.”

20. He went on to say that given that “unattractive alternative”, a period of waiting and uncertainty is preferred. I understand what his Honour is saying there and I also understand what his Honour Howie J was saying at [29] and [30] of that judgment. There his Honour concentrated on the effective delay in the proceedings and noted that the section:

“Can only be utilised in a principal way and upon proper material placed before the Court, otherwise it becomes an instrument of injustice either by raising false expectations in the mind of the offender as to the sentence which will ultimately be imposed upon him or by becoming the justification for the imposition of a sentence which fails to meet the timid expectations of the community as to the punishment to be imposed upon the offender”.

21. The difficulty in this particular matter, from the perspective of an application to remand the matter pursuant to s 11, was, firstly, the totality of the criminality. Three separate offences of armed robbery, admittedly two committed at exactly the same time, in the context of the prisoner using a knife and threatening people with that knife, reflects serious offending that in the context of the guideline judgment of Henry & Ors ((1999) 46 NSWLR 346), even making all due allowances for relevant favourable subjective circumstances, would require the imposition of a term of imprisonment inevitably greater than the period of time that the prisoner had been in custody at the time that he came before me.

22. On the other hand, the other difficulty was of course that, from my perspective at least, remanding the matter as was suggested for six to 12 months, in the context of the inevitability of an outcome that would require the prisoner to be in custody longer than the time that he had been on remand up till last Thursday, would give rise to what I perceive to be either rightly or wrongly an inevitable injustice to him. This is so because he would be required to come from custody to freedom and then back into custody in circumstances where I would view his return to custody as being potentially capable of jeopardising any advances he may have made during the term of his rehabilitation treatment or confinement.

23. The other issue that concerned me was the fact that the bottom line on the material that was available to me was that I did not feel that I needed a period of remand and a period of time for the prisoner to remain in some rehabilitation centre, to assist me to make important decisions about the sentence to be imposed, particularly the non-parole period in this matter.

24. If I may just turn briefly to the material that was presented on his behalf. I should acknowledge the background or the history that has been provided by the prisoner to Mr Watson-Munro and to the drug and alcohol workers at the Corrective Services. The context of all this is to be found in the references. I have a number of references from obviously respectable, talented people involved with the prisoner’s family and the prisoner over a number of years.

25. What emerges from this material is that the prisoner’s family, his parents I am referring to particularly, are well respected professionals in film and television work. They are well educated. They are responsible and for many years they have been confronted with a son who has had a number of difficulties both behavioural and emotional which have contributed to what appears on his criminal history and which obviously are contributing factors to his offending on this particular occasion.

26. Reference is made to the fact that the prisoner has taken responsibility for his offending. People who attest to the good character of his parents also speak of the finer qualities of the offender. He obviously has both the qualities and the potential that are displayed by his parents in their work lives and in their private lives, but, as I said, it is clear from reading these references he has been beset by difficulties, some of which are adverted to in the report of Mr Watson-Munro.

27. These include what appears to be for a period of time an undiagnosed condition of ADHD, or else an undiagnosed depressive disorder, which had not been addressed for some period of time. As I understand the history available to me the prisoner was not actually provided with any medical assistance in respect of his ADHD until he was about 14 years of age. But even then it must be pointed out of course that there has been a course of offending since that medication had been provided to him, although he had in the past broken from that medication.

28. I am mindful of the fact that his partner and he have a child for which he has great affection. I am also mindful of the fact that he stated as one of his reasons for committing the offence some assertion of need for his child. He is described by one referee as a “kind, intelligent, thoughtful and caring individual” - in the sense of being that way - “at heart”. He has demonstrated on occasions responsibility, both in respect of his partner and in endeavouring to undertake employment.

29. His family are described as both intelligent and “incredibly supportive” and they have endeavoured to try to support him in very difficult circumstances. The support of his family and his parents’ capacity to provide support as responsible people is one of the many factors I have taken into account so far as the prisoner is concerned.

30. Mr Watson-Munro opines upon a long standing substance abuse disorder relating to both the alcohol and the abuse of Xanax, in the context of what would appear to be symptoms of a major depressive disorder and an anxiety disorder. In fact I bear in mind the history that the prisoner gave Mr Watson Munro that prior to the commission of this offence the prisoner had been drinking alcohol at a nearby hotel to the university over a period of time and had consumed ten Xanax tablets. He had limited recollection of the alleged offending.

31. The combination of alcohol and Xanax could lead to what could be described as “impulsive behaviour”. I appreciate of course on the facts that there is no element of sophisticated planning or certainly no element of extensive premeditation on the part of the prisoner. On the other hand, none of the explanations provided explain why the prisoner would be carrying a knife, a screwdriver or a box cutter in the early hours of the morning.

32. The prisoner, however, has expressed to Mr Watson-Munro a strong desire to undertake rehabilitation. Mr Watson-Munro reflects upon his upbringing and I am prepared to accept the history that the prisoner comes from, as I earlier pointed out, a supportive family. He has an older sister. He was educated at Marcellin College for two years. He was unhappy there. It was during this period of time that his Attention Deficit Hyperactive Disorder remained undiagnosed.

33. He attended a paediatrician at the age of 14 and was placed on Ritalin. On the history he gave Mr Watson-Munro he was placed in a special education class for year 8 with the promise that if his grades improved he would be returned to the main stream, but he was ultimately kept back. He moved onto Randwick Boys’ High for years 9 and 10 and then transferred to Randwick TAFE for a period of time.

34. He stopped taking his Ritalin at one point whilst he was in what was described as year 11, I take it, whilst at TAFE. This was primarily because of what was described as, “the intrusive nature of his anxiety and his depression”.

35. He had been to see a psychiatrist at the age of 16 and was placed on Avanza. His school reports at the time reflected upon him being inattentive and apparently constantly sad in class. He gave a history of being bullied at school. Although he is a fairly formidable size now, he was much smaller during his school years and bullying was a scourge for him and created a great deal of misery.

36. He has had work at McDonald’s. He has worked for Channel 7, I presume through arrangements made on his behalf by his family, who have connections, as I said earlier, with the film and television industries. He endeavoured to commence an apprenticeship as a mechanic at Clovelly but had difficulties with his employer.

21. His history of abuse with Xanax and alcohol to which I have already referred. He has sought professional treatment over a lengthy period of time but up until the present time nothing has apparently diverted him from abuse of either prescribed medication or alcohol.

22. In relation to the effect upon him of custody, Mr Watson-Munro described it as having a “salutary effect”. He expressed to Mr Watson-Munro and others “significant feelings of remorse” relating to the victims of his robbery crimes. Mr Watson-Munro reflected upon the need for him to have intensive therapy of various types on his release from custody. The only psychometric assessment undertaken by Mr Watson-Munro was the Beck Depression Inventory which is a self-reporting test. It reflected upon feelings of sadness, anxiety, irritability and the like.

23. The prisoner’s father had a lengthy discussion with Mr Watson-Munro confirming many of the particulars that were provided by the prisoner and the failings of the education system to assist the prisoner when opportunities were available then to guide him appropriately. His father reflected too upon his remorse for his conduct, the way the prisoner was seeking to assert his responsibility for his child, but also upon the fact that the prisoner had for some months before the offence been alcohol free but apparently had, if I may use the colloquial expression, “broken out” on the night of the offending.

24. The analysis of Mr Watson-Munro reflects upon this history of ADHD and depressive symptoms, abuse of alcohol and related offending, the prisoner’s remorse and also upon the need for the prisoner to receive intensive treatment, both to assist him in his rehabilitation in relation to the abuse of medication and alcohol and also to assist him in other respects of personality development and to address symptoms that arise out of the background of depression and anxiety.

25. Mr Watson-Munro reflected upon the motivation the prisoner expressed to continue his relationship with his partner and to provide assistance in the support for his child. The Corrective Services report reflected upon the prisoner’s drug and alcohol history, with which I have already dealt.

26. The drug and alcohol workers undertook a ‘treatment readiness’ questionnaire and that reflected upon the positive approach of the prisoner to receiving treatment. The report also notes the insight the prisoner now has to the issues relating to his previous abuse of drugs and alcohol and the reporters note that for any therapeutic intervention to be successful the prisoner would be required to, “challenge himself in a mature manner” to address these issues. That report also reflects upon the suitability of the rehabilitation program which I was urged to admit the prisoner to immediately. The report reflects upon his experience of being in custody for the first time but the report also notes the need for the prisoner to show commitment and “maturity”, to fully benefit from the interventions currently being pursued on his behalf. That is interventions related to potential residential assistance. If given a custodial sentence, he should be encouraged to participate in programs aimed to increase motivation and develop skills to maintain long term lifestyle change and that is clearly the case.

27. The submissions on behalf of the prisoner were, apart from those directed at an order under s 11 of the Act, concerned with the proposition that the prisoner was not an appropriate vehicle for general deterrence. It was submitted that the offending is at the lower end of the scale and the Court should, if it does not determine that the matter be remanded pursuant to s 11, give particular consideration to the relationship of the non parole period to the balance of a sentence.

28. The Crown in succinct submissions, pointed to the early plea and the prisoner’s cooperation with the police. He correctly categorised the offences as offences of, “desperation”, and he conceded that given the contemporaneity of the offending, each offence to the other, concurrent sentences may be imposed.

29. In sentencing offenders in relation to armed robbery matters the Court is required to have regard to the guideline judgment of Henry and particularly the judgment of the learned Chief Justice at [161] to [171]. His Honour pointed in [162] features that were “sufficiently common” for the purposes of determining a guideline, very much parallel with the circumstances of this prisoner, although one could not necessarily describe the victims as “vulnerable”. His Honour went on to point out that every case will involve considerations of factors which will be circumstances of “aggravation”, such as those identified at [170]. The Court in that matter disclosed, or at least confirmed, that the guideline in relation to matters that might be said to fall within the ambit of factors identified by his Honour, should be in the vicinity of between four to five years full term custody. But it was acknowledged of course, that every case is individual and there will be a number of factors to be taken into account, some arising subsequent to Henry, such as the discount to be given for the utilitarian benefit of the plea of guilty. In this matter, the prisoner is entitled to a discount of 25% upon the otherwise appropriate penalty for each offence.

30. The learned Chief Justice earlier in his judgment had acknowledged the accuracy of what had been said about Mahony ACJ in the decision of Lattouf, an unreported decision of the Court of Criminal Appeal, in which his Honour noted:

“Principles are necessarily framed in general terms. General principles must of their nature be adjusted to the individual case if justice is to be achieved. For this reason it is, in my opinion, important in the public interest that the sentencing process recognise and maintain a residual discretion in the sentencing judge. There is a public interest in the adoption and articulation of sentencing principles which will deter the commission of serious crime and punish those who commit it but there are other interests to which the sentencing process must have regard. These are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case.”

47. I was taken by learned counsel for the prisoner, who skilfully represented his interests, to the decision of Hearne [2001] NSWCCA 37, particularly at [22], where the Court in an appeal against a sentence in respect of the charge of murder of a police officer, reflected upon the remarks of the sentencing judge where his Honour commented upon the age of the prisoner as a matter to be taken into account and that there was a public interest in the case of a young offender in imposing a sentence that deserves a proper opportunity and encouragement for rehabilitation.

48. Of course, I interpose for a moment, the opportunity for rehabilitation would appear to me to be much greater in a case such as this than in a case involving an offender convicted of murder who would inevitably, whatever the age, be required to serve a substantial term of imprisonment before being eligible for parole. In Hearne the Judge at first instance had reflected upon the considerations of punishment, general deterrence was there regarded as subordinate to the need to foster the interest of rehabilitation in the case of a young offender. The Judge cited a number of authorities, some reported, well known to the Courts. Courts have regularly recognised the need and the appropriate case for consideration of the promotion of the rehabilitation in young offenders who are not beyond reform. This was reflected in another case from 2001, R v Blackman & Walters [2001] NSWCCA 121, where the Court in exercise of its discretion dismissed a Crown appeal against the inadequacy of sentences imposed upon a number of people charged in respect of a serious home invasion involving offences of armed robbery and the like. That matter involved Wood CJ at CL reflecting upon, with approval, observations of the South Australian Full Court in decisions such as Yardley v Betts (1979) 22 SASR 108 112 3 and Kovacevic v R (2000) 111 A Crim R 131 and 139. In Kovacevic it was noted in sentencing:

“There is still a need to consider all aspects of the matter and to consider the interest of society, the offender and the rehabilitation of the offender. Also in the appropriate case, there may be room for the exercise of mercy and leniency.”

49. In Yardley v Betts, the late King CJ observed:

“The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of, and assumes particular importance in the case of first offenders who have not developed settled criminal habits. If a sentence had the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in the future, the protection of the society is to that extent enhanced. To say that the criminal law exists for the protection of the community, is not to say that severity is to be regarded as the sentencing norm”.

50. Of course in sentencing now in New South Wales, the courts are required to have regard to the ‘purposes of sentencing’ are set out in s 3A. Deterrence, both general and personal, adequate punishment, denunciation and making a prisoner accountable are all relevant matters identified under s 3A, as is the rehabilitation of the offender. Some of these purposes of sentencing of course, were directly taken from the majority judgment in Veen (No 2) v R [1988] 165 CLR 465, particularly at 476, where the majority said:

“However, a sentencing is not a purely logical exercise and the troublesome nature of the sentencing discretion arises in large measure from the unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different conditions.”

51. Of course, when a young offender commits offences of this seriousness, and particularly several offences at about the one time, there must be some element of general deterrence and personal deterrence required. To my mind, this is one factor, in conjunction with the other matters I have identified in the prisoner’s prior criminal history, that militate against the remand sought.

52. On the other hand of course, as the Crown has pointed out, there are features of this matter that reflect upon the prisoner’s somewhat confused mental state at the relevant time, particularly the absence of aggravating factors such as premeditation or planning.

53. With regard to s 21A of the Act, apart from those matters I have already identified which form part of the factual matrix of the offending, there is no particular aggravating factor identified pursuant to s 21A(2). The prisoner was not on conditional liberty. As far as mitigating factors, the conclusion I reach is that the injury, loss or damage caused by the prisoner was not substantial in respect to the armed robbery matters, although of course there was substantial damage in the attempted larceny matter. None of the offences was part of planned or organised criminal activity.

54. Of course one could not conclude that the prisoner did not have any significant record of previous convictions, was a person of good character, was unlikely to offend or even had good prospects of rehabilitation. But on the other hand the prisoner has, through the reporting of the Corrective Services drug and alcohol officers and Mr Watson-Munro, revealed at least some insight into his circumstances that reflect upon the capacity of the prisoner to respond positively to a period of parole which he has not had before.

55. I accept that the prisoner has, although he did not give evidence before me, expressed remorse to his father and to Mr Watson Munro and to some of the character referees, has expressed sentiments that reflect that he has accepted responsibility for his actions and acknowledged such loss or damage as has been occasioned by his actions. His plea of guilty is a mitigating factor under s 21A(3) of the Act, but again he receives a discrete discount for that.

56. The principles set out in the majority judgement of Pearce v The Queen are required to be taken into account. I have determined, ultimately, that I should not make all the sentences concurrent with one another. There should be some degree of partial accumulation, but only slight, to reflect the principles that are laid down by the majority of the High Court in Pearce ([1998] 194 CLR 610 particularly at [45]).

57. I have determined that there are ‘special circumstances’ pursuant to s 44 of the Act: the youth of the prisoner and the need to prevent the prisoner from becoming institutionalised by an extended period of supervision. Most importantly, in the somewhat significant adjustment of the non-parole period by reference to the balance of parole, a very substantial period of parole supervision to give the prisoner the opportunity to adjust to community living and to give the prisoner by parole supervision the capacity that he has expressed to Mr Watson Munro and to the drug and alcohol workers at Corrective Services to undertake the changes in his life that he necessarily must take if he is to avoid coming back before this Court sometime in the future. He certainly needs a great deal of intensive assistance in relation to not just drug and alcohol matters but in relation to matters reflecting upon his background of personality and emotional dysfunction which are, it would seem, a constant threat to his capacity to lead a law abiding existence.

58. Sir, I am just going to make the orders in relation to the matters to which you pleaded guilty. Each sentence reflects a discount of 25% upon the otherwise appropriate sentence.

59. In relation to the offence of attempted larceny, or attempting to steal from a motor vehicle, you are convicted. You are sentenced to six months imprisonment to date from 9 September 2013, that will expire on 8 March 2014.

60. In relation to the armed robbery, the last robbery in time committed against Mr Castillo, you are convicted. You are sentenced to a term of imprisonment by way of non parole period of 11 months to date from 9 September 2013 and expiring on 8 August 2014. I direct that you be released to parole on that date. I fix a balance of sentence of one year seven months, the sentence will expire on 8 March 2016.

61. In relation to the armed robbery upon Mr Wong and the armed robbery upon Mr Ilinj, in respect of each of those offences you are convicted. In respect of each offence you are sentenced to a term of imprisonment by way of non parole period of eight months. Each non-parole period shall date from 9 December 2013 and expire on 8 August 2014. In respect of each sentence I fix a balance of sentence of two years one month.

62. The sentence I have imposed dating from 9 December 2013 will expire on 8 September 2016. At the end of the non-parole period I direct that you be released to parole. The conditions of parole will be fixed by the Parole Authority by regard to the remarks on sentence I have just made, but will include a requirement for you to undertake appropriate drug and alcohol rehabilitation programs and received appropriate medical and psychological treatment.

63. The total sentence, thus, I have imposed is a sentence of three years imprisonment with a non-parole period of 11 months. The greatly extended period of potential parole supervision is to provide adequate time to address the matters that I have referred to in my judgment.

64. Do you understand the sentence I have imposed?

65. OFFENDER: Yes your Honour.

66. HIS HONOUR: You will be released to parole on 8 August 2014 and you will be subject to parole supervision for two years and one month. That will mean, unlike any other supervision you have had before, that if you fail to comply with the directions of the parole authority your parole will be revoked, you will be arrested inevitably and you will be taken back into custody and you will spend such time in custody as the parole authority directs.

67. So, the opportunity is provided for you within a relatively short period of time on your release to make good on the promises that you have given to other people, your parents, Mr Watson-Munro, your partner and the drug and alcohol workers from the Department of Corrective Services.

68. OFFENDER: Thanks, your Honour.

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Decision last updated: 19 May 2016