R v Murrell

[2023] NSWDC 130

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v MURRELL [2023] NSWDC 130

Hearing dates:

14 April 2023

Decision date:

02 May 2023

Jurisdiction:

Criminal

Before:

NOMAN SC DCJ

Decision:

Aggregate sentence imposed. The following indicative sentences are nominated: Indictment 1: Count 1 (taking into account form 1 offence): 10 years and 6 months with a non-parole period of 7 years imprisonment; Count 2: 8 years and 6 months imprisonment; Count 3: 8 years and 6 months imprisonment; Count 4: 8 years and 6 months imprisonment. Indictment 2: Count 1: 7 years and 7 months imprisonment. Term of imprisonment of 14 years and 3 months, with a non-parole period of 9 years and 6 months to commence 31 October 2019 (8 years after Victorian offences commenced). The overall sentence is therefore 22 years and 3 months with an overall non-parole period of 17 ½ years. The offender will be eligible for release to parole 30 April 2029, effectively an extra 3 ½ years. The term will expire 20 January 2034, a further 4 years and 9 months.

Catchwords:

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences - Accumulation, concurrency and totality – Co-offenders – Parity – Regard for sentence imposed in another state - Specially aggravated break and enter – Detain for advantage – Armed robbery – Assault with intent

Legislation Cited:

Crimes Act 1900 (NSW), s.112(3), 86(3), 97(2), 195, 97(1)

Cases Cited:

Murrell v R [2014] VSCA 337

Mill v The Queen (1988) 166 CLR 59, [1988] HCA 70

R v Todd [1982] 2 NSWLR 517

Category:

Sentence

Parties:

R;
Lloyd MURRELL

Representation:

Counsel:
Crown: J Mehta
Defence: T Edwards SC

Solicitors:
Crown: H Rosen
Defence: J Fahd

File Number(s):

2012/107001 and 2016/191432

Publication restriction:

Non-publication orders over a nominated co-offender and a nominated co-accused. A co-offender in the 2011 offences referred to as Mr Green (adopting the pseudonym applied in the CCA) and a co-accused, who has a trial pending, is referred to by his initials (TA). The order for TA extends only until the cessation of the pending trial.

JUDGMENT

1. There are non-publication orders over a nominated co-offender and a nominated co-accused. A co-offender in the 2011 offences will be referred to as Mr Green, adopting the pseudonym applied in the CCA and a co-accused, who has a trial pending, will be referred to by his initials (TA). The order for TA extends only until the cessation of the pending trial.

2. The offender is now aged 52. He is before the Court for sentence over conduct committed in 2011 as a 40 year old.

August 2011

3. On 25 August 2011 a co-offender, Michael Cosovan, booked a campervan for the period 26 to 30 August 2011. The following day around mid-day he attended to collect the van with the offender. Cosovan used his own name but a false address. He used his own credit card. He nominated the offender by name as a driver. They were captured on CCTV. The van was tracked through country locations. There was a third man observed by the time it was captured in Cobar around 3am on 27 August 2011.

4. On Sunday 27 August 2011 Cosovan and Green attended the Cobar Bowling and Golf Club. They both signed in under false details. They were both linked via their fingerprints. Based on the subsequent events I determine this was an opportunity to make observations within the Club and part of planning the offending.

5. The secretary manager of the Club was Neil Urquhart, then aged 59. He worked at the Club the following day in the morning and afternoon through to night-time. He lived near to the Club. He left and went home at about 9.30pm.

6. Soon after the offender and Green were within his loungeroom. Both were wearing gloves and balaclavas. The offender pleaded to committing this offence in the company of both Green and Cosovan. This is above the minimum number of offenders to constitute in company. I appreciate the victim would only have been aware of the two men. The facts do not disclose when they entered although they had forced a door. They pinned him to his seat. Green pressed a handgun into his stomach and threatened him to co-operate. He used Mr Urquhart’s first name. Although there was co-operation Green struck him to the right side of his forehead with the gun, causing a laceration. This was an entirely senseless act of violence. His hands were then cable-tied and duct tape placed over his mouth. The combination of two men being in his home, the threats, the gun, the violence and the restraints must have been terrifying. That they knew his name and address reflects some prior information. The facts well support this was a planned intrusion. The offence occurred within his home. There was a weapon used by the co-offender and it was used gratuitously.

7. Either prior to his return or whilst he was home, the offenders took personal items from his home including a rifle and memorabilia. The property was of limited value. This is above the mid- range for this offence category.

8. This conduct supports the offence of specially aggravated break and enter, being in company and assault occasioning actual bodily harm. This offence is contrary to s.112[3] Crimes Act and has a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years.

9. Mr Urquhart was taken to his car and forced into the rear passenger seat. Cosovan entered the car also wearing a face covering and gloves. The offender drove towards the Club whilst Green still had possession of the handgun. When a police car passed at about 9.47pm Green struck Mr Urquhart to the head causing pain and a sense of disorientation. He was questioned about staff movements. The duct tape was removed. The car was driven to another area near the club and the tape replaced. He was taken into the Club. Cosovan remained as guard. After about 45 minutes he was taken to another area where he observed two female staff members seated on the floor with their hands cable-tied. These staff were Lucy Brown, then aged 36 and Simone Knight, then aged 34. The offender pleaded to committing this offence in the company of Green and Cosovan. This is above the minimum number of offenders to constitute in company. The detention was for over an hour. The actual bodily harm falls at the lower end of the range. Overall, the offence is a serious example of the offence provision.

10. This period of offending supports the offence of whilst in company detaining for advantage and causing actual bodily harm. This offence is contrary to s.86[3] Crimes Act and has a maximum penalty of 25 years imprisonment.

11. Ms Brown and Ms Knight were attending to their duties at the end of their shifts after the club closed. The last patrons left by 10.45pm.

12. Green grabbed Ms Knight from behind by her shoulders as he held the gun. The offender grabbed Ms Brown by the arm. He told her to stay calm and she would not be hurt. Mr Urquhart observed the offenders use a large screwdriver and a shifting spanner to force the poker machine money containers. Each of the 40 poker machines and a cigarette vending machine was accessed. The money from the cash tills and from raffles and prize draws was taken. Cosovan remained to watch over the staff. Sporting memorabilia was taken. It is described that he was bossed around by Green and the offender. The offenders took the hard drive and the computer containing the CCTV. They cut or unplugged phone cables. Over $80,000 was stolen and about $34,000 worth of damage occasioned. They then used further cable ties to restrain each of the three staff to chairs.

13. Each of the victims were vulnerable given the type of employment. Each offence was of limited duration, albeit despite the reassuring words uttered to one, would have been terrifying given the presence of the gun. There was only one gun. Other tools were brought to affect the theft. Disguises were worn. This was planned offending. A reasonable amount of money or property was taken. Although not an element, I take into account the offences were committed by three persons acting in company. Each is a serious offence.

14. This conduct supports a count for each of the female staff of robbery whilst armed with a dangerous weapon referring to the firearm. This offence is contrary to s.97[2] Crimes Act and has a maximum penalty of 25 years imprisonment.

15. The three offenders then drove Mr Urquhart’s car from the Club to their van. They transferred items into their van. They then left the area with both vehicles without headlights on.

16. They then set Mr Urquhart’s car alight. It was entirely destroyed by fire. The car was valued at $30,000. I have considered the value and the type of item destroyed. It was intentional and it was to prevent identification of the involvement in the earlier offending. This offence of intentionally destroying property by fire is an offence contrary to s. 195 Crimes Act. If prosecuted separately it would have a maximum penalty of 10 years imprisonment. It is before the Court on a form 1. The offender asked that it be taken into account when I sentence on Count 1. I consider this appropriate and will take it into account in accordance with the guideline judgment. There will be a modest adjustment to the otherwise appropriate sentence.

17. Cosovan was further linked to the van by fingerprints and CCTV at a fuel stop. After an unrelated investigation, items stolen from both Mr Urquhart and the Club were located at the offender’s residence. The offender’s DNA was located in Mr Urquhart’s home. Green was linked by DNA to the location of the campervan.

18. Cosovan was arrested on 14 December 2011. He declined to comment.

19. Green was arrested on 6 December 2011 and charged on 9 December 2011. On 13 December 2017 he made admissions as to his involvement and nominated both Cosovan and the offender.

20. The offender was arrested on 24 January 2017. He declined to be interviewed.

21. I am assisted by two victim impact statements- from Mr Urquhart and Ms Knight. Each was authored on 20 March 2013 for the proceedings against Cosovan; about 18 months after the offending. Both remained employed at the Club. Each addressed the continued fear and loss of safety each experienced. It is not unexpected that both would continue to be impacted by a gun related crime. The concern the gun could be used would have elevated the fear. The harm occasioned to both, and to Ms Brown, should be recognised. The use of a victim impact statement is an opportunity to inform the court and the offender of the harm.

SEPTEMBER 2011

22. The offender was in the company of Green and TA in September 2011. Although nominated in the indictment and the facts, Green was not charged. TA is listed for trial.

23. On or before 27 September 2011 the offender was contacted and asked to assist in robbing the victim, Saso Ristevski. Mr Ristevski was 20 and lived with his parents. At 1.15pm on 27 September 2011 TA called the offender and the offender then sent a text to Green indicating he was heading to Sydney. The offender drove from Victoria to Sydney and arrived on the morning of 28 September 2011. At about 10.33am TA called the offender and then the offender called Green. The offender arranged to collect Green and indicated they were heading to Wollongong to see someone about money. They went to TA’s home. TA instructed them to rob the victim of cash. The instruction was to take the victim to a vacant house and find out where the money was. TA advised his involvement was not to be made known.

24. The offender, in the company of Green, TA and a friend of TA, drove to the vacant house. The offender and Green attempted to secure entry but were unsuccessful. They all left. Around 8pm they went to the victim’s home. Green picked up a wooden stick and the unknown male picked up a metal pole. The victim was not home so they left, leaving the weapons. They returned wearing balaclavas. The weapons were collected. They sought to obtain the money. A confrontation occurred and the victim was struck to the head by Green and the unknown male using their weapons. He received two wounds to his head. The victim’s parents heard their son screaming. Mrs Ristevski commenced screaming and said she would call the police. Mr Ristevski armed himself with a mattock. The offender used a pole or stick to damage the victim’s car which upset the victim. He started to approach. The offender and Green ran.

25. This offence was planned. There were more than the minimum number to constitute ‘in company’, two weapons were used, although they were acquired belatedly. I take into account the nature of the weapons. The offender did not arm himself other than to damage the car. There was use of violence with the weapons. The offence occurred in the victim’s home where he should have experienced a legitimate sense of safety.

26. The offence was of considerable seriousness.

27. The offender is not responsible for either wound.

28. The offender’s DNA was located on both the victim’s right hand and right sleeve. He was in direct contact with the victim.

29. The offender was arrested on 24 January 2017. He declined to be interviewed.

30. Arising out of this involvement, the offender is to be sentenced for an offence of being in company with two other persons, and for assaulting the victim with the intent to rob. This offence is contrary to s.97[1] Crimes Act and has a maximum penalty of 20 years imprisonment.

31. The unknown male fired a gun and killed Saso Ristevski. The offender is not responsible for this act.

32. The court is assisted by a victim impact statement prepared to address the harm caused to the Ristevski family from the sad and tragic loss of Saso. The trauma described in the statement provides some limited insight into the devastation caused from the loss of a loved family member; particularly in such confronting circumstances. I am cognisant that this offender is not responsible for Saso’s death. Nonetheless, he agreed to participate with others in a robbery. He continued after weapons were brought. Even that involvement entails a preparedness to involve himself in confronting criminality.

33. The maximum penalty for an offence represents the legislature’s assessment of the seriousness of the offence.

34. The offender entered what are accepted to be late pleas. Each matter had been listed for trial a number of times before pleas were settled. It is an agreed position that the pleas of guilty warrant a reduction of 5% to each sentence.

35. The offender is now aged 52.

36. The offender has numerous entries on his criminal history commencing in the Children’s Court. He has been in custody for most of his adult life. This custodial background and the reports refer to the offender being institutionalised. This of course is a risk. However, he remains optimistic of his life when granted parole. He is desirous to engage in rehabilitation programs and education to foster his prospects of remaining at liberty. The Case Notes tendered refer to his positive responses and nominating positive achievable future goals. This undermines the assessment of institutionalisation. I do not overlook that in the 2014 judgment he was referred to as an incorrigible recidivist with his prospects of rehabilitation seen as meagre.

37. The offender has numerous sentences in both NSW and Victoria. He has not dissimilar offending involving offences of dishonesty and violence and more particularly burglary, armed robbery and detaining for advantage offences.

38. He has various periods of imprisonment with the lengthier involving being released on 6 November 1996, re-entering on 9 July 1998 until 12 December 2007 and re-entering after less than 2 months on 2 February 2008. He remained in custody until 9 November 2010 and re-entered 3 months later on 23 February 2011. His sentence expired on 30 July 2011. It was during this period at liberty that he committed the offences for sentence and also those for which he was sentenced in Victoria and for which he continues to serve a sentence.

39. He entered Victorian custody on 2 November 2011, although his sentence was back-dated to commence on 31 October 2011. He was transferred to NSW custody on 7 September 2016.

40. He is an interstate prisoner serving a Victorian sentence of 17 ½ years imprisonment with a non-parole period of 14 years for various firearm and theft offences. The offences are disclosed in the provided judgment: Murrell v R [2014] VSCA 337. These offences and this sentence will be relevant when totality is considered. His non-parole period expires on 30 October 2025.

41. There is a separate fixed term of 2 months, rendering his earliest release date to be 29 December 2025. The facts of this offence are tendered. The offender, whilst in custody, assaulted Green. Green had provided a statement against the offender incriminating him in Mr Ristevski’s matter and this was served in the brief. For some inexplicable reason in August 2018 they were placed in the same cell for transport. The offender punched Green in the head and then headbutted him twice. He called him a dog and questioned his co-operation. He threatened him and punched him a few more times. Other inmates then joined in the assault. Green suffered bruising and swelling to his face and head. Attacking his former associate for assisting police reflects a lack of remorse at that time. This coincides with his continued denial of offending at that time.

42. This criminal history disentitles him to leniency.

43. On 2 - 3 December 2010 in Victoria there was an armed robbery that was in effect a home invasion. It was planned and there were two weapons.

44. In October and November 2011 in Victoria the offender was involved in a conspiracy to commit an armed robbery. The offender sought to obtain a gun. I observe this is not long after his involvement in the second of the index offences for sentence when a gun was used without his prior knowledge to kill the victim. There are also other theft and burglary offences.

45. The full list of offences is contained in Ex B, the ‘sentence chronology’.

46. There are institutional misconduct offences, including for drug offences. One is of innocuous items and the other a drug frequently abused and traded within gaol.

47. The offender has written directly to the court and relies upon the content as well as support from family and his accounts to his family and experts of aspects of his background. There are also direct and hearsay representations of remorse and an acknowledgement of the consequences of his actions. I accept this insight has increased over the years. Although not responsible for the death of Mr Ristevski, he was part of the group that attended and even after the unexpected death he continued to offend without abatement. He assaulted a co-offender after the co-offender accepted his own role and inculpated the offender. He continued for years after to maintain his innocence and even after co-offenders accepted their guilt. He only recently accepted his guilt and with this acceptance commenced to express remorse. This process towards remorse and insight took 11 years. Although long delayed, I accept it to be genuine.

48. A number of expert reports are tendered, including those commissioned directly for this sentence together with historical reports dating back to 2002. There is some inconsistency that supports some unreliability as an historian. I do not read much into the delayed disclosure of childhood sexual abuse perpetrated by a priest or inmates and staff at juvenile detention centres. Although these are currently common narratives this is aligned with the now understood commonality of the offending. It is not uncommon to delay disclosure. I do find it more concerning that there was an original complaint of sexual abuse perpetrated by his stepfather that is no longer advanced as part of his history.

49. The offender advanced aspects of dysfunction and disadvantage. In his letter he described violent parents and then a violent stepfather. He was exposed to drug abuse and domestic violence. He disclosed violent sexual abuse by a priest commencing at about 7 and then further sexual abuse and violence within juvenile detention as a teenager perpetrated by both inmates and staff. He is pursuing civil action. He attributes his drug use which commenced as a teenager to this background and an endeavour to block memories. He nominated various substances. He asserted that most of his offending was drug related although he is now abstinent. He told Dr Allnutt he last used a significant number of drugs in his 20’s. He sought out and is receiving psychological treatment to address his mental health. It is commendable that he initiated this contact. Whilst detained in Victoria he had access to rehabilitation and work and education programs. He has not had similar access in Goulburn. Applications to transfer to gaols with more generous programs have not been successful. He has documented privations due to COVID including lockdowns and an absence of visits. The offender claims this has adversely impacted his mental health. Tendered on behalf of the offender is the report on Goulburn gaol by the Inspector of Custodial Services. I indicated I would not read the entire report and invited specific submissions.

22. The offender has advanced a complaint about being housed with child sex- offenders which caused distress given his history. He has now obtained a single cell.

23. He has mostly been incarcerated. Despite this he was fortunate to father five children and some of these children provide continued support. A former partner and three children provided affidavits. All three children refer to their interaction with the offender in 2012. On my reading of his record and informed by his sentence, I understand he was at liberty for less than 4 months in 2011. A long-time friend has attested to an offer of work for the offender upon his release.

24. Dr Allnutt, Forensic Psychiatrist, prepared a report. He was briefed with earlier mental health reports dating back to 2002. There is no express reference to the background details in those reports although there is a review of the mental health diagnoses. Many earlier reports are tendered including those relevant to the Victorian offences in 2011.

25. The offender told Dr Allnutt he offended to obtain money to service his gambling; stating at the time he was drinking excessively and gambling. He however indicated he was not under the influence at the time of either index offending.

26. Dr Allnutt acknowledged the statement in the Bugmy Bar book of the association between an abusive or sexually abusive background and the development of psychological, behavioural and substance use issues. This connection is one often made by Dr Allnutt and other experts and applied to an individual. The generic reference adds nothing. I declined to read the various chapters of the Bar Book that were tendered. There are specific reports available. I invited Counsel to take me to any passages or portions that were not addressed in the specific reports. Dr Allnutt opined there was a nexus between the offender’s background and his conduct disorder, PTSD, substance use disorders and his gambling disorder. The gambling disorder is said to have contributed to the need for money and therefore the commission of the offences. The gambling use disorder is now in remission. His PTSD is said to probably make custody more onerous.

27. Dr Allnutt addressed the current absence of treatment or support. It is stated he would require a concerted effort to assist his reintegration into the community upon release.

28. Dr Martin Allen, psychiatrist, also provided a report. He was only provided with a letter of instruction. He also nominated the offender’s background as informing his PTSD. He attributed that the recurrent criminal activity, extending beyond the index offending, was likely impacted by poor behaviour and impulsivity. He proposed treatment and medication.

29. I am assisted by a psychological report authored by Sam Borenstein. He was provided with psychological reports from 2002. His report was prepared for the earlier assault upon Green. The comment that the relevant assault was an expected gaol fight does not adequately address the offence being a directed assault upon a person who inculpated him in serious offending. Mr Borenstein does not address the index offending. He diagnosed severe PTSD caused by childhood sexual abuse impacting upon his emotional and psychological development.

30. What is divined is he likely experienced a most unfortunate childhood with exposure to violence and sexual abuse. This background and exposure likely led to his abuse of a drugs which then led to his criminal offending. This causal link is highly probable. He certainly exhibited poor decision making at the time of the index offending, committing the offences for money to gamble. This disadvantage and its consequences serve to moderate moral culpability.

31. I am greatly assisted by the remarks on sentence of his Honour Judge Lerve. Judge Lerve sentenced the co-offenders Cosovan and Green. Neither party endeavoured to have this sentence proceed before the same sentencing judge and whilst referencing the principle of co-offenders being sentenced by the same judge both were content that I sentence this offender. I am also assisted by the reasoning in the successful appeal to the CCA in the matter of Green. I must therefore consider those sentences and seek to not create a legitimate sense of grievance.

32. Both co-offenders who have been sentenced were only involved in the first in time offending.

Cosovan

61. Cosovan shared counts 2, 3 and 4. He pleaded to a lesser count for count 1, being one that attracted a maximum on 20 years imprisonment with a standard non-parole period of 5 years. He received a reduction of 15% to counts 1 and 2, and 20% for counts 3 and 4 to recognise his pleas. He was found to be the least involved in the offending. He was 23 at the time of the offending. He was on a s.12 bond and had far more restrictive antecedents. His subjective case was not unusual. There was a more positive finding on his prospects of rehabilitation.

62. The starting point for the offences was 7 years on counts 1 and 2 and 9 years on counts 3 and 4. The sentence imposed was one of 8 years and 4 months imprisonment with a non-parole period of 4 years and 6 months.

63. Both the objective and subjective findings for Cosovan are more positive than for this offender. The starting point provides limited guidance.

Green

64. Green pleaded guilty to the same offences as the offender including the form 1 offence attached to count 1. Green was the person who was armed and the person who used the gun and his fist to assault Mr Urquhart. Although part of a joint criminal enterprise his conduct was greater. He received a reduction of 50% to his sentence to reflect the pleas and assistance. At the time of his sentence, Green had been sentenced for Victorian offences to a sentence of 6 years and 3 months with a non-parole period of 4 years and 3 months to date from 31 October 2011. This sentence is far shorter than this offender’s. He was younger than this offender and also had a substantial criminal history. He had a strong subjective case. The starting point for the indicative sentences was 13 years imprisonment for count 1 and 11 years for counts 2, 3 and 4. Whilst noting it was generous, a sentence of 7 years with a non-parole period of 4 years and 3 months was imposed. The commencement date was 31 October 2014, or 3 years after the commencement of the Victorian sentence.

65. Green’s role was more elevated and his objective seriousness therefore modestly higher. However, his subjective case is not as strong as this offender’s. Overall, the evaluation places them with a different starting point.

66. I have had regard to the purposes of sentencing. I have had regard to the period in custody serving sentences for other not dissimilar offending. I have borne in mind totality, given the temporal connection and the similarity of conduct with the index offences and those offences committed in Victoria in 2010 and 2011. The offender is now to be sentenced after considerable delay for serious offences committed in 2011. The decisions of Mill v The Queen (1988) 166 CLR 59, [1988] HCA 70 and R v Todd [1982] 2 NSWLR 517 have application. As best as I can, I am to seek to impose a sentence that replicates what would have been an overall sentence if the matters had proceeded to sentence at the one time. Steps towards rehabilitation have transpired. The offender has sought to better his predicament. However, given his history it is unclear that his prospects are other than questionable.

67. One of the purposes for which a court may impose a sentence on an offender is to recognise the harm done to the victim of the crime and the community. Senseless acts of violence and those committed with a firearm require appropriate recognition and admonishment.

68. The offender’s prospects of rehabilitation and of not reoffending are not promising given his history. Dr Allnutt is conservative in his assessment. They would likely be enhanced by engaging in recommended programs and abstaining from gambling. I note those recommended in the tendered reports. His previous poor performance when in the community is well understood.

69. There is a real risk of institutionalisation. Specific deterrence continues to be of significance.

70. General deterrence and denunciation are of importance in robbery offending given the seriousness and prevalence. I do not consider any subjective features limit the importance.

71. Having considered all other available options, I am satisfied that no sentence other than imprisonment is appropriate. I am guided by the sentences imposed upon co-offenders. As noted, the sentence imposed upon Green has more significance. This offender alone is to be sentenced for the second period of offending.

72. I make a finding of special circumstances. It is evident that the offender requires extended supervision and support. I take into account the more onerous and restrictive conditions in custody consequent to COVID and also the impact from his PTSD. I also take into account the deprived conditions in custody including limited access to programs specifically whilst being housed at Goulburn. I will also need to modify the period to allow for the impact of accumulation of this sentence upon the earlier Victorian sentence. The ratio of non-parole period to term for the Victorian sentence was 80%.

73. The offender is housed in protection based on historical events. Some of the background that informs his classification is documented in the 2002 psychological reports. That of itself does not denote more onerous or more restrictive conditions. The offender however advanced that he may be housed with or required to share a cell with sex offenders. This is triggering given his childhood. He has now secured single cell accommodation. This may or may not continue. Once sentenced he may receive other gaol housing. I do take into account what he has experienced to date.

74. The offender is convicted of all offences for sentence. The sentence will be partially accumulated on the aggregate sentence imposed in Victoria. I have taken into account the structure of the sentence imposed upon Green. I note his Victorian sentence is considerably shorter.

75. I propose to impose an aggregate sentence. Guided by parity, I determine the starting point for the shared conduct with Green and Cosovan, to be 11 years for count 1 and 9 years each for counts 2, 3 and 4. There needs to be some modest accumulation between these offences to recognise the separate offending and separate victims. The starting point for the second indictment count is 8 years. There should be appropriate accumulation to reflect the offending occurring a month apart from the earlier offending. I nominate the following indicative sentences, each reduced by 5% to recognise the pleas of guilty and incorporating some rounding down:

Indictment 1:

Count 1:   Specially aggravated break and enter, taking into account the further offence on the form 1: 10 years and 6 months imprisonment with a non-parole period of 7 years;

Count 2:   Detain for advantage: 8 years and 6 months imprisonment

Count 3:   Armed robbery: 8 years and 6 months imprisonment

Count 4:   Armed robbery: 8 years and 6 months imprisonment

Indictment 2:

Count 1:   Assault with intent: 7 years and 7 months imprisonment.

76. I impose a term of imprisonment of 14 years and 3 months with a non-parole period of 9 years and 6 months. This is a ratio of 66%. The sentence will commence on 31 October 2019, being 8 years after the Victorian sentence commenced. The overall sentence is therefore one of a term of 22 years and three months and an overall non-parole period of 17 ½ years. This provides for 5 years and 3 months on parole. This is an overall ratio of 78%.

77. The offender will be eligible for release to parole on 30 April 2029, effectively an extra 3 ½ years. The term will expire on 30 January 2034, a further 4 years and 9 months.

78. No lesser sentence would reflect the overall criminality.

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Amendments

24 September 2024 - Defence solicitor J Fahd

Decision last updated: 24 September 2024