R v Pitt

[2016] NSWDC 425

District Court

New South Wales

Medium Neutral Citation:	R v PITT [2016] NSWDC 425
Hearing dates:	24/06/2016
Date of orders:	01 July 2016
Decision date:	01 July 2016
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	In respect of each offence; convicted, term of imprisonment of 5 years with a non-parole period of 3 years to be served concurrently.
Catchwords:	Criminal – Sentence, robbery in company, parity, offender’s background – Aboriginality - relevance to sentencing,
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure ) Act 1999
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Henry v R (1999) 46 NSWLR 346 Pearce v R (1998) 194 CLR 610
Category:	Sentence
Parties:	Regina Michael Alfred John Pitt
Representation:	Counsel: Director of Public Prosecutions Mr Jeffery - Offender   Solicitors: Director of Public Prosecutions Aboriginal Legal Service - Offender
File Number(s):	2015/135196

SENTENCE

1. HIS HONOUR: Mr Pitt, in each instance for each charge I propose to impose a sentence of five years imprisonment each to be served concurrently with the other . In relation to each charge I propose to fix a non-parole period of three years to date from 6 July 2015 expiring on 5 July 2018. So that leaves a balance of sentence of two years and you will be eligible for release to parole on 6 July 2018 and I will give my reasons for that decision.

2. Michael Pitt is for sentence today in relation to two offences for which he was found guilty by a jury. Those two offences were that he on 29 March 2015 at Zetland being in company with another person robbed Anthony Wang of property namely a sum of cash, a wallet, mobile phone, two credit cards and a New South Wales driver’s licence the property of Anthony Wang and further on the same occasion and in company with the same person he robbed Han Dong of property namely a sum of cash, the property of Han Dong.

3. These two offences are brought pursuant to s 97(1) Crimes Act 1900. They each being offences of robbery in company carry a maximum penalty of 20 years imprisonment. Section 97(1) of course also provides for the offence of robbery with an offensive weapon ie “armed robbery”. I point that out because the co-accused in this matter, Apenisa Bolatagica, appeared for sentence in relation to the same criminal enterprise having pleaded guilty at the Local Court in respect of two offences of robbery whilst armed with an offensive weapon. I will come back to that aspect of the matter shortly.

4. The prisoner was arrested on 6 May 2015 and has been in custody since that time. The prisoner was serving the balance of parole, his parole having been revoked. This, as I understand it, ran from 6 May 2015 until 18 August 2015 when he remained in custody on remand in relation to the matter with which I am concerned until he faced his trial. As I have indicated in the course of the submissions of the parties, bearing in mind I take into account as an aggravating factor the offences with which I am concerned were committed whilst on conditional liberty , I propose to sentence Mr Pitt to terms of imprisonment which will commence from a date that fell during the course of him serving the balance of his parole in the context of ensuring as best I can that there is no “double dipping” in the fixing of the appropriate sentence and of course the relevant non-parole period.

5. The prisoner was on parole, I hasten to say, in relation to sentences in respect of three offences, one offence of escaping from lawful custody, one offence of resisting a police officer in the execution of his duty and one offence of assaulting a police officer in the execution of his duty. As I understand it, between the time of the commission of the current offences which was on 29 March 2015 and his arrest on 6 May 2015, having tested positive to the presence of prohibited drugs in his urine he was found to be in breach of his parole conditions. So the revocation of his parole for various reasons was inevitable.

6. The prisoner, as I said, pleaded not guilty at his trial. He did not give evidence and the facts that I find are in accordance with the jury’s verdicts and the evidence available at the Court. The case against the prisoner I point out was a “circumstantial evidence case”, but it was a circumstantial evidence case greatly aided by a series of what could be called closed circuit television or other visual images that, in conjunction with other evidence, created an irresistible inference to be drawn that the accused was one of the two people that robbed the store at Gadigal Avenue Waterloo. The store in question was the Wondax Convenience Store and its two employees were Mr Wang and Mr Dong, the two “victims” identified in the respective counts. Mr Wang was the manager, Mr Dong was the assistant.

7. At about 5.50pm the prisoner and his co-accused entered the shop. They had their faces covered and certainly their faces could not be discerned from the relevant images available at the trial. One person made demands upon Mr Wang for money who, as I understand it, was at the counter. Mr Dong was standing in the shop nearby. Mr Wang opened the cash drawer and the person demanding the money from him at that point removed $3,000 from the till. The person who I understand to be the other offender approached Mr Wang and asked for his wallet and his phone. Mr Wang handed over his wallet containing $150 in cash and some other personal possessions. The man who had taken the money from the till took Mr Wang’s iPhone which was on the counter. That person also confronted Mr Dong and demanded he hand over his wallet which had approximately $30 in it and the two offenders left the store.

8. The police were called. The circumstantial evidence case included, I hasten to say, a body of material relating to the appearance of the accused ,in my view, clearly shown sitting on a bus stop nearby to the convenience store corresponding with the appearance of a person or one of the people inside the store within a time that the evidence established was reasonable for the accused to convey himself from the convenience store to an address in Waterloo and the appearance of a person who to my mind clearly was the prisoner in a lift taking him to an apartment where a man lived who was associated with the prisoner’s family.

9. When police searched the premises of this other man clothing was found similar in appearance to the clothing worn by the person shown from the closed circuit television footage taken from a bus of the prisoner sitting at a bus stop, the clothing worn by one of the assailants and the clothing worn, save for some additional clothing covering the upper part of the body, by the man seen in the lift. There was some partial match of DNA profiles between clothing found of the character that I have just described in the apartment when police searched it in early May 2015 and the DNA profile of the prisoner.

10. The co-accused I note was sentenced by her Honour, Judge Tupman, on 15 January 2016 and I have read her remarks on sentence. It is, as was pointed out in submissions, the fact, as I have earlier noted, that the other prisoner admitted to being involved in two armed robberies, a matter not established against this prisoner beyond reasonable doubt. Her findings in relation to the character of the “offensive weapon” suggests in effect that it was difficult to determine what in fact was the relevant “offensive weapon” .Certainly it was not something that could be established beyond reasonable doubt as being a lethal weapon as such.

11. I have read a statement of facts that was tendered in relation to that prisoner. I have read her Honour’s remarks on sentence and observations she made about the other offender’s criminal history and his background which I will come back to in a moment.

12. The other offender, as I understand it, was not on parole as was this prisoner and whilst this prisoner does have a lengthier criminal history, this prisoner being approximately five years older than the other offender, the other offender that her Honour sentenced had two significant convictions, one as recently as 2011, of considerable seriousness and similarity to the offences for which he was to be sentenced.

13. The prisoner was born on 17 May 1980. He would have thus been at the time of the commission of these offences 34 years of age and, as I would understand it, is now 36 years of age. As I said, he has a lengthier criminal history than his co-offender who as I understand it is a native of Fiji. However , the criminal history by and large of this offender, particularly the early part of it, very much reflects in my view aspects of his background reflecting upon his disadvantage, a matter about which he spoke to the Community Corrections Service and to the psychologist, whose report has been most helpful. He has quite a number of findings of guilt as a juvenile and as an adult for acts of dishonesty of a relatively minor nature in some instances and in some instances not and for acts of violence for possession of drugs and the like. He has a conviction in the District Court for indecent assault in 1996. He has convictions in the Local Court for breaking, entering and stealing. He has convictions in the Local Court for assault occasioning actual bodily harm and assaulting police officers. I note in 2001 he had a conviction in the District Court for maliciously inflicting grievous bodily harm for which he was sentenced to three years nine months imprisonment with a two year non-parole period. He has a conviction in the District Court to stealing from the person, again for which he was sentenced to three years imprisonment with a non-parole period of 18 months. He has a conviction in the Sydney District Court in 2009 for an aggravated breaking, entering and commit serious indictable offence, knowing people therein, for which he was sentenced to three years four months imprisonment with a non-parole period of one year ten months on 18 September 2009.

14. The offender was sentenced, as I have pointed out, to terms of imprisonment on 4 April 2014 at the Moree District Court in respect of an offence of escaping from lawful custody, assaulting a police officer in the execution of his duty and, as I understand it, resisting a police officer in the execution of his duty. Those sentences, as I understand it, comprised two years imprisonment, each concurrent with the other, in respect of the offences concerning the police officers and in respect of the escape from lawful custody another sentence of two years imprisonment also concurrent with the sentences imposed for the assaults upon the police with a non-parole period of 17 months imprisonment.

15. My understanding is that the release date of the prisoner on parole would have been approximately 11 December 2014, hence the prisoner as I said earlier being on parole in relation to those matters at the time of the commission of this offence.

16. If I could just deal with Mr Tagica Bolatagica otherwise referred to as Tagica Bola in the criminal history. The two significant convictions in his case that I note are firstly a conviction at the Sydney District Court on 25 May 2007 for robbery whilst armed with an offensive weapon, with an armed robbery matter taken into account on a Form 1, for which he was sentenced to four years imprisonment with a non-parole period of 30 months, and later in September 2011 in the District Court, a conviction for aggravated assault with intent to take and drive a motor vehicle in company which is a carjacking offence for which he was sentenced to three years and six months’ imprisonment commencing on 3 May 2010 concluding on 29 November 2013 with a non-parole period of two years. He has convictions for possession of drugs, dishonesty matters, some acts of violence and also it would appear after the commission of the armed robbery offences for which he was sentenced, he committed a series of what could be called “frauds” about which her Honour spoke in the period in late April, particularly 23 April 2015 for which he was sentenced ultimately as I would understand it to six months in total imprisonment.

17. With regard to Mr Pitt, I have the presentence report. It complements in terms of its accuracy as to the prisoner’s history what is contained in the psychologist’s report and I will not repeat relevant matters that are common to both reports. What I should point out in relation to his Corrective Services record is that, firstly, he has had his parole revoked before 2015 in 1998. He also has been subject to multiple parole orders and good behaviour bonds during the 2000s and initially whilst having difficulty complying with his supervision requirements, he experienced “a significant attitude shift” from 2005 onwards. I took that to mean a more positive attitude to supervision.

18. The prisoner has complained though to Community Corrections and to the psychologist that he has never been given the opportunity to undertake residential rehabilitation programs and particularly in his discussions with the psychologist, criticised the sufficiency of the drug and alcohol programs to which he has been given entry.

19. He gives a history of drug use going back to his early teenage years and he has been a regular user not only of marijuana or cannabis but of heroin and of other illicit substances for quite a number of years. He does not have a good institutional conduct record and he is assessed at a medium high risk of reoffending, particularly requiring special attention as to education and employment, his financial circumstances, his family relationships, his accommodation, his leisure activities, his companions, his alcohol and drug problems and also his “attitude/orientation”.

20. The prisoner has not had any extended employment history with very little history of employment whatsoever .It would appear from the evidence at the trial, particularly the evidence of the owner of the apartment where the prisoner’s clothing was found and other information available through the presentence report and the psychologist’s report, that the prisoner has largely led over a number of years a very peripatetic existence.

21. The Community Corrections Service recommends that he be considered for referral to either a residential rehabilitation program on his release or else to the EQUIPS addiction program. He obviously has to address issues relating to his use of drugs and the like in order to avoid re-offending in the future. In that regard, he does not acknowledge his guilt of these matters which is entirely his right. But it must be said, bearing in mind I believe it was quite fairly put to the jury all the relevant circumstances both favourable to the Crown and unfavourable to the Crown case, that the case against him was particularly strong.

22. Turning to the psychologist’s report the prisoner not having given evidence in the sentence proceedings, it contains a great deal of detail about the prisoner’s background. He was born in Moree and the psychologist’s report and to some extent the presentence report reflects upon a history of considerable difficulty. He was the eldest of four children. He said he did not know his father. He lived on what was described by the psychologist as the “Mission” located at Moree and he was in the course of his childhood and early teenage years exposed to a great deal of domestic violence perpetrated against his mother and abuse of alcohol and drugs by his mother and other people. He has been subject to a great deal of physical abuse including being burnt with cigarettes stubbed out on his body. He has given a history of sexual abuse the details of which I will not go into and obviously has had a great deal of difficulty in his early life with dependency upon extended family, such as his maternal grandmother and aunty living in Lismore and others to provide support for him.

23. He has two children from a prior relationship aged 14 and 10. His partner, the mother of those children, lives in Moree and there is some contact. His partner does not report any history of domestic violence from the prisoner.

24. His education was obviously disrupted. He has difficulties with literacy and numeracy. He like many of his community from Moree was a very good rugby league football player playing down in Sydney in the South Sydney Junior Rugby League competition with the Coogee Dolphins.

25. He has had a dependency as I have said earlier upon drugs for a long period of time although he does not abuse alcohol. He, as I said earlier, is concerned about the failure for drug and alcohol services to provide assistance to him and he believes he needs very intensive assistance to overcome a dependency which is shaped in many respects by forces beyond his control which is very deep seated.

26. He advised no medical conditions and no claim is made of psychological or psychiatric “history”. The assessment of the psychologist reflected no abnormality of thought or abnormality of speech patterns. There was no evidence of pronounced intellectual deficit. He did give information of a character to suggest symptoms of depression and anxiety since childhood and reflected upon how from time to time the use of prohibited drugs had made him feel better than he would otherwise feel.

27. The psychologist was of the view on balance that his psychological presentation is a combination of chronic low level depression/anxiety and substance use. He was assessed by means of a Personality Assessment inventory. His difficulties with reading complicated this assessment. The finding of the psychologist showed that he was a person with a history of substance abuse problems experiencing prominent stress and anxiety. His use of drugs:

“..could be serving a functional role of tension reduction. It appeared he sometimes used the substances to relieve the impact of both past and present stressors”.

28. He accepts that his substance abuse has had a notable ill effect upon his life and also upon his “legal difficulties”.

29. The observation of the psychologist was that he seemed willing to engage in a suitable program. It was noted, however, the difficulty he has in trusting others and that may produce a barrier to full treatment engagement if he interprets the treating professional as a “authority figure”. Obviously his background reflects some difficulty with “authority figures”. Her assessment from the “PAI” was that the prisoner was suffering from Substance Dependency Disorder and Dysthymic Disorder being a persistent condition of the depressive symptoms.

30. He also has symptoms consistent with a person suffering from “Border Line Personality Disorder and Antisocial Personality Disorder consistent with aspects of his criminal history. Her assessment reflects upon the negative childhood experiences, the distress that that has caused him and the impact that has had upon his life. She also reflects upon the need for therapy in respect of his personality characteristics and also the need for stability in his personal life with accommodation and employment an optimal situation to assist him. Clearly much of his offender is related to his drug usage.

31. One could infer that that is the case in relation to this offending without any assistance from the prisoner in that regard. I had very helpful submissions if I be so bold to say so from Mr Jeffrey. He got to the nub of the matter, identifying what he said were four important issues. The issue of parity as it relates to the co-accused, the issue of the prisoner’s background and its relevance to this sentencing exercise in the context of decisions such as Bugmy and Munda from the High Court in 2013 and Justice Woods judgment in Fernando when he was sentencing as a single Judge of the Supreme Court in 1992. He also identified the issue of the commencement date of the sentence the matter I have already dealt with and of course an issue in the assessment of the objective facts of the different bases upon which the two offenders came forward for sentence.

28. I note the distinction in the charges brought against the respective offenders. The truth is, as a matter of common sense of course both offenders were involved in the same criminal enterprise. It was clearly a “joint criminal enterprise” and each is responsible for the acts of the other in relation to what the prisoners themselves admit. But of course as I earlier pointed out, I could not be satisfied beyond reasonable doubt obviously that this prisoner was armed with a weapon of any type. Such differences as exist between this prisoner and his co-accused are matters then of record.

29. With regard to the ‘purposes of sentencing’ of course every sentencing exercise requires consideration of s 3A of the Act, there is a need for adequate punishment in the appropriate case, the prevention of crime by deterring both this prisoner and others, the consideration of the protection of the community from the prisoner. The promotion of his rehabilitation and making him accountable for his actions, denouncing his conduct, recognising the harm done to the victims. I bear in mind that whilst there were verbal demands made of the victims there was no physical injury suffered, obviously they were fearful of their safety. But there were no threats of reprisals, nor any excessive the use of threat of force by the two men in company committing the crime for which they are served.

30. To deal with the matters that were raised by Mr Jeffrey in the context of what was conceded by the Crown. Naturally I have regard to what the High Court discussed in Bugmy v The Queen [2013] HCA 37 and the judgment handed down on the same day on 8 October 2013 of Munda. Bugmy of course discussed a range of judgments including Fernando. The Court ,for example, at [41] through the majority said;

“Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices but to recognise this is to say nothing about a particular offender. In any case in which it is sought to rely on an offender’s background of deprivation and mitigation of sentence, it is necessary to point to material tending to establish that background”.

35. I accept the history given by the prisoner. I have enough experience, although certainly no wisdom in this regard, to inform me from my knowledge of the Moree community and the general background of Mr Pitt to understand that he has come from a background of disadvantage and distress, emotional and physical, which very few non Aboriginal Australian’s have ever experienced.

36. In this regard of course I note the Royal Commission into Aboriginal Deaths in Custody 25 years ago, conclude through the observations of its leading royal commission Elliott Johnson QC that;

“It is important that we understand for the legacy of Australia’s history as it helps to explain the deep sense of injustice felt by Aboriginal people and their disadvantaged status today and their current attitudes towards non Aboriginal people in society. In this way it is one of the most important underlying issues that assists us to understand the disproportionate detention rates of Aboriginal people.”

37. In the decision of Munda to which I referred the majority referred to what Justice Eames in the Court of Appeal in Victoria in the decision of Fuller-Kust [2002] 6 VR 496 observed that;

“In the application of a principle stated by Justice Brennan (in Neal v The Queen) regard to an offender’s Aboriginality serves to ensure that a fact relevant to sentencing which arises from the offender’s Aboriginality is not “overlooked by a simplistic assumption that equal treatment of offenders means the differences in their individual circumstances related to their race should be ignored”.

38. He went on to point out that such matters may inform reasons for recidivism. Such is the case here in my view.

39. Their Honours went on to say;

“Mitigating factors must be given appropriate weight but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. It would be contrary to principle stated by Brennan J( in Neal) to accept that Aboriginal offending is to be viewed …as less serious than offending by persons of other ethnicity”.

40. In that regard of course I have taken heed of what the learned Crown Prosecutor said about the circumstances of the co-offender and his lesser record. Although, as I have pointed out, co-offender has convictions for significant offences for which this prisoner has not previously been convicted. I was drawn to the material available to her Honour and her Honour’s findings in relation to that person’s deprived background. Having noted those matters, the circumstances of this prisoner and the culture from which he has come is unique to Australia and the circumstances identified by her Honour in relation to the other offender do not in my view provide what could be called the context for considering this offending and the prisoner’s drug dependence very much related to the offending that emerges in this particular case.

41. To that extent I accept the very helpful submissions made by Mr Jeffrey on this point, submissions about which, subject to drawing my attention to aspects of the other offender’s circumstances, the Crown did not greatly dispute. The submissions of Mr Jeffrey properly pointed to the long term damage that has been done to this prisoner through reasons beyond his control and that is a significant matter to take into account.

42. With regard to the issue of parity of sentence, as I said in the course of the discussion I had with counsel late last Friday afternoon, the matter can be best summed up by the principle articulated by Justice Rothman in the decision of Jimmy of the Court of Criminal Appeal from 2010, where he cited the Aristotelian concept of equality, alike shall be treated alike and unalike shall be treated unalike to the extent of their unlikeness on a rational basis.

43. Here there is a arrange of issues of difference between the two offenders. This prisoner is older with a longer criminal history. The other offender, however, has two significant convictions of a very similar character to that for which I am now concerned. The other offender was five years younger but then again he was a man 30 or 29 years of age. He was a mature adult. The other man has not had the same history of this advantage and certainly the extent of the relationship of his disadvantage and its influence on his present conduct is not as clearly shown as it is in this case.

44. The two men, of course, were essentially involved as I said in the same joint enterprise. This prisoner was on parole, the other prisoner was not. In that regard the particular matters identified by the learned Crown in her very helpful submissions I have obviously taken into account. I do not have a transcript obviously last Friday, but I made extensive notes of the matters to which he referred me, including matters concerning the distinction to be drawn between the character of the offences to which the prisoners have pleaded. The fact that the co-offender received a discount of 25% for the utilitarian benefit of his plea of guilty and there was some evidence of contrition, obviously not matters not present here.

45. With regard to those matters identified by Mr Jeffrey I have taken full account of what he has submitted in relation to the issue of the circumstances to be considered pursuant to s 21A of the Act. Clearly the primary and, in my view, only clearly established aggravating factor pursuant to s 21A(2) Crimes (Sentencing Procedure ) Act 1999 was the breach of condition liberty. The fact that an offender is on parole is a very significant aggravating factor. Of course there will always be degrees of that, particularly considering the period since the person was released from custody, the type of offending for which the person was on parole and the like. The other characteristics of the offending are incorporated within the elements pleaded in the indictment.

46. With regard to mitigating factors under s 21A(3) of the Act , the only relevant mitigating factor I can identify is that the offending was not part of planned or organised criminal activity. The two offenders obviously made some preparations in some way disguise themselves and the like but the preparations were pretty minimal and it certainly is not a situation within the ambit of what is understood as “planned” criminal offending.

47. Obviously I cannot find the prisoner was of good character or is unlikely to re-offend, nor that he has good prospects of rehabilitation the Community Correction Service Report highlights that matter. That does however bring me to another aspect of the matter. It is noted in the context of the remarks of her Honour Judge Tupman when sentencing the other offender, sentenced him to four years imprisonment for each offence, each concurrent with the other with a non-parole period of three years. Obviously she did not make a finding of special circumstances pursuant to s 44 of the Act.

48. A matter I have addressed my mind to is the need for proper consideration of totality of criminality. The High Court in Pearce v R (1998) 194 CLR 610, particularly in the majority judgment [45], reflected upon the concept of totality and the need for an appropriate sentence for each offence. But it seems to me in the scheme of things having regard to what Her Honour did in respect of the co-offender, bearing in mind I am not advised the Crown appealed the judgment handed down by Her Honour back in January of this year that I should treat this offender in the same way .Noting that it could be said that the two offences combined constitute in totality a greater criminality than one offence committed alone. On the other hand the offences are so intimately bound up with one another that concurrent sentences on this occasion are probably appropriate

49. That having been said ,in respect of the finding of’ special circumstances’ not made by Her Honour in that case there should be a finding of special circumstances pursuant to s 44 of the Act in this matter. The Community Corrections Service reported on its own reflects upon a range of issues for which the prisoner needs assistance. I appreciate there is some history of resistance to assistance, that is a matter for the prisoner, resistance to assistance use of drugs whilst at large can only lead inevitably to a warrant being issued for his arrest and him going back into custody. It may of course, and I bear this in mind, lead to him committing further offences, a matter about which every court should be concerned. But at the same time, in my view, the prisoner is a person who needs the professional assistance to adjust to community living, and when he is at large, given what I see to be not a particularly strong network of support he does need an extended period of supervision to assist him in that regard. He may require, and this is a matter for the Parole Authority, referral initially to a rehabilitation program, a residential program that he himself believes that he requires. These are matters for judgment by others but I believe a period of two years supervision is the bare minimum required to assist the prisoner.

50. He is a’ big boy’ if I could use that expression. He is a man with maturity and life experience. I have no doubt that he has the capacity to make a judgment about what is good for him and the community and what is not. But I have also acknowledged, as I have said that, there are challenges for him many of which are beyond his control and very much like at the heart of the history available to me.

51. Trying my very best in all the circumstances to reflect upon the differences and the similarities between the two offenders to arrive at a sentence that permits recognition of the alikeness and the un-alikeness in appropriate measure, without leading to a justifiable sense of grievance on the part of this prisoner or the co-accused I have settled on the sentences earlier pronounced. I appreciate the issue of the discount for the utilitarian plea of guilty is a significant point of difference between the two offenders, but ultimately it appeared to me, weighing up all these competing considerations, that was in reality the most significant distinction between the two. In my view it would be unfair to impose upon this prisoner, notwithstanding his plea of not guilty, a greater sentence than I have determined. Having determined that sentence it leads me to the conclusion that the fixing of a non-parole period that represents 66 per cent or thereabouts of the head sentence is an appropriate minimum term to reflect the matters that are relevant to that assessment. It is not just the question of providing an opportunity for early to parole but it is a matter of the Court endeavouring to ensure that the minimum term also reflects proper weight to the objective offending, issues of deterrence both personal and general and the like. So far as the categorization of the offending I adopt primarily what Judge Tupman has found. I have also had regard to the decision of Henry v R (1999) 46 NSWLR 346 and the observations by Chief Justice Spigelman at [160] - [170] as the characteristics of the type of case that provided the opportunity to fix a guideline set out at [162] as well as the distinctions that might be drawn between this offending and the characteristics identified by His Honour. This offender is not a young offender with no or little criminal history and certainly not benefiting from what flows from a plea of guilty.

52. The only issue perhaps in this matter that was not analysed much by Her Honour is this issue of vulnerability of the victims. Although they were storekeepers it was in daylight hours that the crimes occurred, it was the middle of the afternoon or late afternoon when these events happened. The victims were together. There were no doubt other people wandering around the streets, it was not a situation of stalking and assaulting a shopkeeper alone at night. There was no weapon involved as I have earlier found. In relation to this matter also I bear in mind the ‘aggravating matters’ identified later in the judgment of the Chief Justice being largely absent, such as intensity of threat, the proven effect on the victims and the like. As I earlier pointed out this was not planned offending.

53. Thus I have concluded that the sentences will be as I have foreshadowed. In relation to the two offences for which the prisoner has been found guilty Mr Pitt is convicted in relation to each offence. He is sentenced to a term of imprisonment by way of non-parole period of three years. Those respective non-parole periods will date from 6 July 2015 and expire on 5 July 2018. It will be a matter for the Parole Authority as to whether Mr Pitt is released. The balance of the respective sentences will expire on 5 July 2020. The conditions of parole are for the Parole Authority. The two sentences are to be served concurrently with one another.

54. Mr Jeffrey in his helpful submissions submitted that I should refer the offender to the Compulsory Drug Treatment in Gaol Program. I have no power to refer him in that regard. But I will order that the prisoner be referred to the Drug Court for assessment as to his eligibility for the Compulsory Drug Treatment in Gaol Program.

55. Do you know what specific orders I need make in relation to that Mr Jeffrey?

56. JEFFREY: I think the order is that Her Honour said at the end of her judgment “I note the offender is apparently an eligible offender. I order that he be referred to the Drug Court for drug treatment in Correctional Centre referral.”

57. HIS HONOUR: So I note that the offender is apparently an eligible offender for the Compulsory Drug treatment Correctional Centre or program. I order that the prisoner be referred to the Drug Court. That will be noted on the orders. I will just give that to my Associate to put that in the Justicelink orders.

58. Yes thank you anything else from you Mr Jeffrey. Anything from you Madam Crown.

59. NG: No your Honour.

60. HIS HONOUR: Thank you very much for your assistance. Mr Pitt the sentence I have imposed upon you is five years with a three year non-parole period dating from July last year. And I have referred you to the Drug Court to see if you can be assessed as suitable for the compulsory drug treatment program. Do you understand?

61. OFFENDER: When will that be?

62. HIS HONOUR: Well that I don’t know. I can’t tell you that. The order is made in Justicelink and you’ll be taken before the Drug Court I would imagine in the next month or so.

63. OFFENDER: So what does that mean, I don’t know, I don’t understand.

64. HIS HONOUR: Well what it means is, I thought your counsel might have discussed this with you. You’ll go to the Drug Court. They’ll look at your criminal history. They’ll look at the orders I’ve made and they’ll make a decision whether you should go into the compulsory drug treatment program. It will be a matter for you, if you don’t want to do it then you won’t do it.

65. OFFENDER: I need it. I need it.

66. HIS HONOUR: Well then that will be a matter for resolution with the assistance of the Drug Court.

67. JEFFREY: It’s the Parklea program that we talked about Mr Pitt.

68. HIS HONOUR: Yes that’s right.

69. OFFENDER: Parklea program. I’m not eligible for that.

70. HIS HONOUR: For the what.

71. OFFENDER: I’m not eligible for that.

72. HIS HONOUR: Why won’t you be eligible for that?

73. OFFENDER: Because I think it’s C classos you know, I’m an E classo.

74. HIS HONOUR: Well that’s something over which I haven’t got control. That will be a matter for Correctional Services and the Drug Court. If you’re not eligible you’re not eligible. I’ve got no control over that. I know what the effect of an E classification is, I understand that but in due course that’s a matter for the Drug Court and the Department of Corrective Services and I’ve got no control over classifications.

75. OFFENDER: Yeah.

76. HIS HONOUR: Right, but you understand that your non-parole period at this point expires in July 2018. You understand that?

77. OFFENDER: Yep.

78. HIS HONOUR: Thank you. You’re excused Mr Pitt, thank you very much. Mr Jeffrey will speak to you, he will get in contact with you.

79. JEFFREY: Just wait in the area please Mr Pitt.

80. HIS HONOUR: Thank you Madam Crown, thank you Mr Jeffrey.

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Decision last updated: 14 June 2017