R v Parisi

[2019] NSWDC 270

District Court

New South Wales

Medium Neutral Citation:	R v Parisi [2019] NSWDC 270
Hearing dates:	19 November 2018; 20 November 2018; 15 February 2019
Decision date:	15 February 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Convicted after jury verdict: Sentence non parole period 3 years 3 months. Parole period 1 year 9 months. Total sentence 5 years.
Catchwords:	SENTENCING – sentence after trial – armed robbery – service station – vulnerable victim – use of knife – prior offending of similar type and on same service station – long custodial history – commencement date – partial accumulation – totality – reduction of sentence for time spent in residential rehabilitation program.
Cases Cited:	Henry (1999) 46 NSWLR 346
Category:	Sentence
Parties:	Shayne Parisi (Offender) Director of Public Prosecutions
Representation:	Counsel: Mr W Chan (for the Offender Shayne Parisi)   Solicitors: Mr J Nathan (for the Offender Shayne Parisi) Ms G Steedman (Solicitor Advocate for the Director of Public Prosecutions)
File Number(s):	2017/00273624

Judgment

1. On 29 August 2017, Santosh Merugu was working as a console operator at the BP Service station at Warrawong. At 9.45pm, a man wearing a grey hooded jacket came into the building of the service station and approached the counter. The man pulled out a knife with a 15 centimetre blade. He demanded money off Mr Merugu. Mr Merugu backed away and locked himself in the office of the service station behind the glassed-in counter area. He called his manager; who then called Triple-0.

2. What occurred inside the Service station building is recorded on CCTV. I have viewed that CCTV in the course of these proceedings. It shows the robber reach over the counter and try to open the cash register. He had to extend himself to do so. He failed to open the cash register but he did manage to grab some packets of tobacco that were under the counter. He then went to the exit but it had been locked. Mr Merugu had left the office at this point. He was confronted again by the offender who made another demand of him. Mr Merugu retreated. While doing so he opened the door. The robber fled.

3. The Police investigation that followed led them to Shayne Parisi, who has also at times been known as Shayne Rees. Parisi lived nearby. He had been at the service station only a few days earlier. There he had been spoken to by Police who had made a video recording of him speaking to them. Parisi bore a remarkable similarity to the robber. He was also in that earlier recording wearing remarkably similar clothes to that of the robber. A warrant was issued for his arrest, and on 12 September 2017, Parisi was arrested. He said he was not guilty of this crime.

4. The matter was listed for trial before me, and on 19 November 2018 after a short voir dire on the admissibility of tendency evidence, which application I rejected, a jury was empanelled to hear the matter. Parisi had been charged with armed robbery, s 97 of the Crimes Act 1900. The trial was conducted expeditiously and efficiently by both Crown and the Defence. The only issue was identification. Evidence started and finished on the Monday. The jury retired to consider their verdict on the Tuesday the 20th at 10.49am and returned with a guilty verdict at 12.39pm. The matter was adjourned to today for sentence.

5. I have received on sentence; a Crown sentence summary, which sets out the offender's custodial movements and criminal history and a chronology of events: exhibit A and B. I received defence material from the Illawarra Medical Service relating to the offender and also detailed records from the Calvary Unit of Riverina Hospital: exhibit 1. Calvary is a reputable drug rehabilitation centre.

6. Every offence for sentence must commence with some assessment of what was done, and the seriousness of what was done.

7. In this matter, Mr Merugu was performing a valuable public service. Without people such as Mr Merugu, we certainly could not go out at night in our cars. Modern society requires that there be a service station open late at night. This makes those who operate such service stations particularly vulnerable. They are isolated, often alone, and although security mechanisms can, as here, be put in place, they are often the subject of robberies such as this. Parliament on behalf of the community has enjoined judges to take this particular vulnerability into account when fixing sentence.

8. A knife was used. Although Mr Merugu was able to retreat, he was not to know whether that knife would be used upon him, whether the threat implicit in its being wielded would be carried out. He was not to know the mental state of the offender who was robbing him. The unpredictability of such encounters preys on a person's mind. It is one of the things which enables armed robbers to exercise power over their victims. It is presumed that there will be both an immediate impact of the victims and perhaps a lasting one.

9. For those reasons, armed robbery is regarded not just as a crime against property, and I note here only a modest amount of property was taken but also and more particularly, it is a crime against people. The impact of such crimes means that people in the community can lose trust in public institutions. They feel that they are not safe in their workplace. They feel that they are not safe visiting service stations. They feel the Police cannot protect them, and they learn to fear others and lose trust in others. Where people are fearful, the entire community suffers. As a consequence, we often lose freedoms that we initially took for granted.

10. When criminals are caught committing such offences, the community will lose trust in the courts if they do not punish those crimes and punish them severely. The need for consistency in sentencing and a fear that there was excessive leniency by Judges of this Court led the highest Court in New South Wales, in 1999, to publish a guideline judgment designed to assist judges in the exercise of their sentencing discretion in matters such as this: Henry (1999) 46 NSWLR 346. The Court of Criminal Appeal indicated that for what is tragically called “an ordinary case”, sentences in the range of four to five years should be imposed. The Court referred to a number of parameters, some of which do not apply in this case - a young offender and a late plea of guilty. That said, every offence and every offender is individual. And while the courts have to take cognisance of the guideline and show proper respect to the guidance offered by the maximum penalty, which is here 20 years imprisonment, Courts must treat each individual offender and each individual offence separately and discretely. No one factor is determinative of the sentencing process. A Judge makes a decision based on all the material before them.

11. The parties are not in serious contest as to the seriousness and objective factors in this case. Mr Chan, who appeared at trial and on sentence for the defence, concedes that objectively this matter falls within the middle of the range although I am not required to make any such finding because no standard non-parole period occurs. Ms Steedman, for the Director of Public Prosecutions, points out the matters I have already observed, that there are differences in this matter and the Henry guideline.

12. There are also matters personal to the offender that have to be and should be taken into account.

13. Parisi is no stranger to the Courts. He was born in 1980. He was before the Local Court when he turned 18, and he spent time on remand at 18. He first received a custodial sentence in 2001. A review of his custodial record indicates that up until his arrest for this matter, his longest period in the community as an adult was one year and he would spend another ten months or so in the community but generally his time out of gaol had been measured in short periods.

14. In 2010, he committed a number of armed robbery offences on service stations. He was sentenced for two of them, another matter being taken into account on Form 1. One of them was at the Service station that he robbed on this occasion. He was released, in relation to his last matter in court, to parole on 18 November 2016.

15. While at large in the community, there was a driving offence for which he received a s 10 disposition. He was in breach of the bond attached to that matter when he committed this offence. The promise to the Court to be of good behaviour and the breach of that promise is a matter I take into account.

16. He also prior to his arrest for this matter, committed two larceny offences for which he was sentenced in the Local Court to terms of imprisonment. The commission of multiple independent offences means that I have to take into account, to a degree, the punishment inflicted on him by the Local Court. There is no discount for committing multiple offences.

17. To the contrary, Madam Crown submitted that I should commence this sentence with appropriate deductions from when the Local Court sentence expired. In my view, to do so would result in a sentence which might be unduly crushing and might affect the rehabilitation of the offender. I also have to take into account the totality principle which requires that a Court have regard to the impact of all of the offending behaviour when formulating or adjusting what would be in any event a lengthy sentence. I am also aware that the Supreme Court granted Mr Parisi bail, and he was released - because of the delay in getting this matter to trial and because of his need to engage in full-time rehabilitation. He was on that bail until, following his conviction, I revoked it.

18. During the time he was on bail, he spent two months in Calvary. That is an onerous program. It can be properly characterised as a quasi-custodial one. I will give him credit for the two months he spent and adjust the sentence by one month approximately to allow for the time he spent at Calvary. I am also taking into account matters of a positive nature that appear to have been shown by him as a response to rehabilitation from his time in Calvary.

19. I proposed, in assessing the appropriate commencement date for this sentence, to adjust the sentence date to allow for three months to be spent for - in custody for the Local Court matter and then backdate another month because of the rehabilitation program. So this sentence should start from 12 February 2018.

20. Turning now to Mr Parisi, the Court cannot ignore a person's background. That includes where and how they came to be in the predicament they are today. It also includes their criminal history. Where someone has demonstrated, whatever their background, continued disobedience of the law and has committed offences against the community time and time again including offences of a similar nature to that for sentence, the courts must in fixing the appropriate sentence for the matter now before it take into account that greater weight must be given to specific deterrence and the protection of the community.

21. Protection of the community can, and here must, involve removing Parisi from the community for a period. Parisi will be returned to the community. If he is returned to the community unable to adjust to normal community life, or without support or opportunity to access supports; the likelihood of the pattern, which appears to be entrenched of offending, gaol, short periods in the community, good intentions but failure, will continue. No one wants that to continue. No one wants anyone such as Mr Merugu to be put at risk by Parisi ever again. But I cannot just lock Parisi up for the rest of his life. Far from it. I have to structure a sentence that will ensure that he is given every opportunity to prove himself in custody and to be monitored and supervised for as long as practicable on release.

22. When assessing how I structure the sentence, I also have to take into account all of the purposes of sentencing and have particular regard to the objective seriousness of what he did.

23. I have reviewed the report from Calvary and Illawarra Medical Service. Parisi has a number of physical disabilities including Hepatitis C and he walks with a limp. He will require some medical attention, and it is hoped that while in custody he is able to participate in the Hepatitis C programs.

24. He has a problem with adjusting to normal community life. That problem is exacerbated both by his drug use and the background, which on the material before me that can be gleaned from the reports, indicates that he was exposed to the use and abuse of drugs at a very early age. His mother died by suicide. She had battled, unsuccessfully, drug addiction all her life. His father has his own problems and has effectively abandoned his son. Parisi has children and would like to assume responsibilities for those children. He has some community support. Support from prosocial members of the community is one important factor in his prospects for the future.

25. If Parisi is to overcome his longstanding drug abuse problem will require a lot of work by him and the authorities. While he was able to maintain a drug-free existence at Calvary and I presume while on remand, he was only able to complete one stage of the program. He was given a choice after a minor infraction of continuing with the program or suffering disciplinary consequences. The choice he made in leaving the program is not one I would have recommended to him. The purpose of his bail was to ensure that no matter what, he completed the program. However, it is clear from the Calvary reports, which were compiled on an almost daily basis, that he had been responding well, perhaps for the first time in his life, to a structured environment.

26. I will, so far as I am able, make a modest finding of special circumstances to enable the State Parole Authority to release him if he proves that he is able to be released. And if possible, to ensure that his release is structured so he can go either back to Calvary or some other related program.

27. The matter went to trial. He cannot get the benefit that would otherwise be given for an early plea of guilty. I am prepared to accept that - and take into account generally - that the trial was conducted expeditiously. Nevertheless, while he is not to be punished for exercising a right we all have, he gets no benefit in a reduction of his otherwise appropriate sentence.

28. The purposes of sentencing do not all point in one direction. But, it needs to be made absolutely clear that mitigating circumstances can only go so far. The Courts have a duty to impose an adequate penalty; one that properly reflects the seriousness of the offence and that vindicates the dignity of the victim and recognises the harm offences such as this do to the community. The sentence also needs to be structured in such a way as to enable the offender to be assisted on release; because he must be released.

29. I have already convicted Parisi. There will be a sentence in this matter of five years imprisonment. That sentence will commence on 12 February 2018, taking into account the time served in custody and allowing 2 months for the time at Calvary.

30. The formal orders of the Court are that following his conviction, there will be a non‑parole period of three years and three months. That sentence will commence on 12 February 2018 and expire on 11 May 2021 on which date he will be eligible for consideration for release to parole. The balance of the sentence and its parole period will be one year and nine months.

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Decision last updated: 19 June 2019