R v Potts

[2019] NSWDC 943

District Court

New South Wales

Medium Neutral Citation:

R v Potts [2019] NSWDC 943

Hearing dates:

23 August 2019, 10 September 2019

Date of orders:

10 September 2019

Decision date:

10 September 2019

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

Aggregate sentence of 5 years imprisonment with a non‑parole period of 2 years and 9 months.

Catchwords:

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences

SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Bugmy principles — Special circumstances

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act1999 (NSW)

Cases Cited:

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41

Director of Public Prosecutions(Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1

Category:

Sentence

Parties:

Regina (Crown)
Jye Robbie Potts (Offender)

Representation:

Solicitors:
Mr R Bucksath, DPP (NSW) (Crown)
Ms L Manookian, Legal Aid (NSW) (Offender)

File Number(s):

2018/00018056

Publication restriction:

Nil

SENTENCE

1. Jye Potts, 25 years of age, appears for sentence in relation to three offences of robbery, pursuant to s 94, Crimes Act 1900 (NSW).

2. The maximum prescribed penalty in respect of each of those offences is 14 years imprisonment. There is no prescribed standard non‑parole period.

3. The offender is also being sentenced for four offences on a s 166 Certificate as follows:

1. Attempt larceny ($250, the property of Westport Bowling Club), an offence pursuant to s 117, Crimes Act. The maximum prescribed penalty for that offence is 5 years imprisonment. There is no prescribed standard non‑parole period;

2. Take and drive conveyance without consent of the owner, an offence pursuant to s 154(1)(a) of the Crimes Act. The maximum prescribed penalty is 5 years. There is no prescribed standard non‑parole period;

3. A further offence of take and drive conveyance without consent of the owner, an offence pursuant to s 154(1)(a), Crimes Act. The maximum prescribed penalty is 5 years imprisonment. There is no prescribed standard non‑parole period; and

4. Being carried in conveyance taken without the consent of the owner, an offence pursuant to s 154(1)(b), Crimes Act. The maximum prescribed penalty is 5 years imprisonment. There is no prescribed standard non‑parole period.

4. The offender pleaded guilty at the Wyong Local Court on 18 December 2018. Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%.

5. The offender has been in custody since his date of arrest on 18 January 2018. Whilst in custody he has served a sentence in relation to two offences of break, enter and steal in respect of which a non‑parole period of one year and three months was imposed to date from 2 May 2018 and to expire on 1 August 2019. It is agreed that the offender has spent 105 days in custody (three months and 13 days) solely referable to these offences.

6. Accordingly, I propose to date the sentence imposed today from 19 April 2019, that is, 105 days prior to the expiration of the unrelated sentence on 1 August 2019.

The Agreed Facts

Sequence 6 - Take and drive conveyance without consent (s 166 Certificate)

7. On 9 January 2018, Rebecca Jones who is the owner of vehicle Queensland 875 XDZ (a red coloured Holden Cruze), left her vehicle unlocked with the keys in the ignition at an address at Southport in Queensland. The offender who was in the vicinity has seized the opportunity to take the vehicle by getting into the unoccupied vehicle and driving off. The offender drove the vehicle to an address in Queensland where he picked up his co‑offender Josh Te Hoata.

8. The offender proceeded to drive to Coffs Harbour in New South Wales where he has switched seats with the co‑offender. The co‑offender has driven them in the vehicle to The Entrance. Whilst en route to The Entrance the vehicle was involved in a 14 minute police pursuit on the Pacific Highway at Nabiac. This pursuit was terminated due to the manner of driving. Upon arrival at The Entrance, the co‑offender parked the vehicle at the offender’s aunt’s undercover parking area at an address at The Entrance.

Sequence 7 - Be carried in conveyance without consent (s 166 Certificate)

9. Between 10 pm on 11 January 2018 and 6.30 am on 12 January 2018, the offender conveyed the co‑offender in the stolen red Holden Cruze to a home in Tumbi Umbi. The co‑offender proceeded to steal a vehicle, a New South Wales BGO 13V (a black coloured Volkswagen Golf) which was parked in the driveway. The co‑offender and the offender proceeded to drive the stolen vehicles back to his aunt’s undercover car park at The Entrance. The offender has left the Holden Cruze at the address and got into the stolen Volkswagen from passenger seat knowing it is stolen. The co‑offender has then driven the offender around the Central Coast area.

10. At 4 pm on 12 January 2018, the stolen Volkswagen evaded highway patrol police in a pursuit in Grandview Street, Shelly Beach. The offender later made full admissions during a record of interview to his co‑offender driving during the pursuit while the offender was in the front passenger seat.

Sequence 5 - Take and drive conveyance without consent (s 166 Certificate)

11. Between 9.30 pm on 12 January 2018 and 10 am on 13 January 2018 the offender attended a home at 42 Battan Circuit, Bateau Bay. As stated by the offender during his record of interview with police, there was an unlocked Jeep in the driveway next to vehicle New South Wales CV 20 RO (a red coloured Isuzu utility). The offender ransacked the Jeep and located a key to the vehicle New South Wales CV 20 RO. The offender took the red coloured Isuzu and drove it back to his aunt’s where he again parked the vehicle in the undercover car park. This vehicle was later recovered by police on 17 January 2018 in the Waldorf apartment block, The Entrance.

Sequence 2 - Robbery

12. About 9 pm on 13 January 2018, the offender entered the Diggers RSL Club situated at 315 The Entrance Road, Long Jetty. The offender produced a Queensland adult proof of age card in his name and date of birth to security who scanned the card for temporary membership. A photograph of the offender appears on the card. The offender entered the poker machine area of the club and played poker machines. At about 9.16 pm, the offender approached a cashier and handed him a plastic player’s card to collect money from a poker machine. The cashier handed the offender $127.25 for the payout.

13. The offender placed a piece of paper on the counter in front of the cashier. The paper had handwriting on it. It read “I have a gun down my pants, hand over what's in the till or I will fucking shoot you.” The cashier said “Are you sure?” The offender said “Yeah.” The offender looked down towards the front of his pants. The cashier felt immediate fear as a result of the threat, removed all notes from the cash till and handed the money to the offender. The amount totalled $3,450. The offender ran off, slowing as he passed security in the foyer and commenced running as he exited the entry doors. Security were alerted and gave chase however the offender could not be located.

14. The offender ran and got into vehicle BGO 13V which at the time was parked out the front with the co‑offender in the driver’s seat. The co‑offender has then driven from the scene.

15. Closed‑circuit television footage of the offender clearly shows distinctive tattoos.

16. Compensation of $3,450 is sought by the Diggers RSL Club.

Sequence 4 - Attempt larceny (s 166 Certificate)

17. About 10 am on 15 January 2018, the previously stolen black Volkswagen bearing New South Wales BGO 13V number plates entered the car park of Westport Bowling Club, Port Macquarie. The vehicle was parked in one of the parks to the eastern side of the car park. At this time the offender has got out of the front passenger seat and placed an open bottle of water on the ground beside the car before walking into the club. The co‑offender was again driving the vehicle.

18. Once inside the Club the offender signed into the Club as Jye Potts with his correct date of birth. His identification was confirmed using a Queensland proof of age card. The offender walked over to the cash desk and started playing poker machines in the area. The offender received a payout of $95. Whilst playing the machine the offender was monitored on CCTV monitors regularly turning around and “casing the premises”.

19. After receiving the payout, the offender walked to the cash desk and walked around in front of the desk for some time before leaning on the desk and looking behind the desk to see where the till was located. The offender stood back and looked both ways to make sure no one was watching before again leaning over the desk and trying to open the till which at the time contained what is believed to be approximately $250 in cash.

20. Upon seeing the offender trying to open the till, Mathew Lark who was monitoring the offender on CCTV monitors has gone out of his office and confronted the offender before ejecting him from the premises.

21. Whilst the offender was being escorted out of the premises he kept stating to Lark, “Don’t cause a scene, stop yelling at me.” The offender has got to the front door of the Club before running back to the parked car in which the co‑offender was waiting. The co‑offender has then sped off leaving the open bottle of water behind.

Sequence 3 - Robbery

22. Just prior to 11 am on the morning of 15 January 2018, the offender attended the Kempsey Macleay RSL Club reception foyer and has used what is believed to be an older Queensland proof of age identification in his name by way of scanning before victim Ogilvy, 24 years old, the receptionist.

23. Following walking up the stairs, the offender walked into the area of the main bar and then to the area of the poker machines where he was sighted by the games room attendant to go to a poker machine. At the time he appeared to be anxious and kept looking around the bar.

24. At around 11.12 am whilst Ms Ogilvy was alone behind the reception counter, the offender walked over to the counter holding the left leg of his pants and a bag and handed the attendant a handwritten note whilst leaning over the counter which read as follows, “I have a gun down my pants, hand over all the money in the till, co-operate and follow these instructions and no one gets hurt.” He then said, “Did you read the note?” She replied, “Yes.” He said, “Well do it.”

25. This has caused Ms Ogilvy to be very distressed and believed that he had a gun and was committing an armed robbery. She opened the counter till which was located behind the centre of the service counter. Approximately $120 was removed from the till. She asked the offender if he wanted the coins as well which he said, “No.” He said, “I am really sorry, I don’t want to hurt you darl, just do as I say, I promise I won't hurt you.” He then took the cash from her hand, placed it in his pocket and walked out of the entry doors to the Club. The whole incident was captured on CCTV cameras inside the Club.

26. The offender then went to an area where his co‑offender was parked in vehicle BGO 13V. They have then driven from the scene.

27. Compensation is sought in the amount of $120 by the Kempsey Macleay RSL Club.

Sequence 1 - Robbery

28. On 16 January 2018 at about 9.15 pm, the offender entered the Bateau Bay Bowling Club situated at 5 Bias Close, Bateau Bay. The offender bypassed the guest sign in register as there was no staff posted at the entry to the Club. He walked directly up to the change box area of the Club.

29. A staff member, Courtney Gibbins aged 19 years, walked up to the offender to serve him. The offender handed her a piece of paper with handwriting on it, the note read, “Empty the till, I have a gun down my pants, don’t fuck around, do as you're told.” Ms Gibbons stopped as she thought the offender might be joking. The offender said, “Do what the note says.” Ms Gibbons was frightened, she bundled the money from the till. The duty manager Carly Rogers walked nearby and was unaware of the situation.

30. The offender said to Ms Gibbons, “Don’t say anything, hurry up.” Ms Gibbons handed the bundle of cash to the offender. He walked away quickly and told her not to move. He exited through the main doors of the Club and ran to the car park. The amount of $4,500 was stolen by the offender and compensation is sought in that amount.

31. About 2.50 pm on 17 January 2018, police attended The Entrance Hotel and located the offender playing the poker machines. He was arrested and cautioned in relation to the matters. He was searched by police and $2,683.20 was located in a black bag. He was taken to Wyong Police Station. He participated in a record of interview with police. He made full and frank admissions in relation to all the offences.

32. In relation to the Bateau Bay Bowling Club robbery, the offender asserted that at the time of the robbery he had apologised to Ms Gibbons. He informed police that he was remorseful and was only committing the offences to sustain his “ice” habit. He also informed police that he had split the proceeds with his co‑offender.

Assessment of objective seriousness

33. Those facts clearly disclose very serious objective criminality. Members of the community must understand that significant punishment will be imposed upon persons who commit such offences. It is simply intolerable in a civilised society that offenders rob licensed premises and terrorise staff members to obtain proceeds. Both general and specific deterrence are important considerations on sentence.

34. In assessing the objective seriousness of each of the offences of robbery, I have taken into account the following factors:

1. In relation to each robbery, the offender told each victim that he had a gun. With respect to sequence 2, he threatened to shoot the employee if money was not handed over. In relation to the two other offences, he implied that the employees would be hurt if they did not comply with his demands;

2. The offending was planned in circumstances where his co‑offender was waiting in a vehicle to leave the scene of each of the robberies;

3. The method chosen to carry out each of the offences was unsophisticated in circumstances where on two occasions the offender produced his own identification to gain entry to the clubs and on each occasion there was CCTV cameras present;

4. The value of the property stolen was as follows: sequence 1 - $4,500; sequence 2 - $3,450; and sequence 3 - $120.

35. Having regard to those factors, I assess the objective seriousness of each of these offences as being in the middle of the range.

Aggravating features

36. The Crown relied upon two aggravating features, firstly that the offending was planned. In circumstances where I have taken that matter into account in assessing the objective seriousness I do not propose to double count it.

37. Secondly, the Crown submitted that the offender’s criminal history was an aggravating feature pursuant to s 21A(2)(d), Crimes (Sentencing Procedure) Act. Whilst I do not propose to take the offender’s criminal history into account as an aggravating feature, I am satisfied it disentitles him to any leniency on sentence. I will outline his criminal history later in my remarks.

38. There were no victim impact statements tendered as part of the Crown material on sentence. Whilst there are no victim impact statements before the Court, I accept that the offending would have caused emotional trauma for each of the staff members involved during the robbery offences. One of the purposes of sentencing is to recognise the harm done to each of the victims (see s 3A(g), Crimes (Sentencing Procedure) Act).

Subjective circumstances

39. The offender is now 25 years old.

40. He has a criminal history in New South Wales commencing as an adult in 2012 when he was dealt with for the offences of larceny, take and drive conveyance and police pursuit. In respect of each of those matters he received a sentence of four months imprisonment.

41. In 2018, he was dealt with for two offences of break, enter and steal. At the Local Court he received an aggregate sentence of 31 months with a non‑parole period of 20 months. On appeal the sentence was varied to a total term of two years with a non‑parole period of one year and three months. The offender has been serving that non‑parole period between 2 May 2018 and 1 August 2019.

42. The offender also has a Queensland criminal history.

43. In 2012, he was dealt with for an offence of possessing a knife and sentenced to one month imprisonment; unlawful use of a motor vehicle and enter premises, in respect of each of those offences received a sentence of six months imprisonment; three counts of stealing for which he sentenced to three months imprisonment; assault obstruct police for which he received one month imprisonment; and dangerous operation of a vehicle for which he sentenced to eight months imprisonment, suspended after serving six months.

44. In 2014, he was dealt with for offences of wilful damage for which he received two months imprisonment suspended; unlawful entry to a vehicle and use of vehicle and dishonestly obtaining property and sentenced to nine months imprisonment concurrent.

45. In 2016, he was dealt with for supply of dangerous drugs. There were multiple counts. He was sentenced to two years imprisonment with a non‑parole period of 135 days.

46. As previously indicated, I am satisfied that the offender’s criminal history disentitles him to any leniency on sentence that would otherwise be available to a person of prior good character.

47. The following material was tendered on behalf of the offender during the sentence proceedings:

• Exhibit 1 - A report of Dr Richard Furst dated 4 June 2019;

• Exhibit 2 – A report of Dr Chew dated 24 August 2018;

• Exhibit 3 - Discharge summaries from Blacktown Hospital between February and May 2019;

• Exhibit 4 - An outline of defence submissions;

• Exhibit 5 - A chronology of offending for January 2018;

• Exhibit 6 - A transcript of the remarks on appeal of Acting District Court Judge O’Connor from 20 September 2018; and

• Exhibit 7 – A Queensland warrant report.

48. The offender’s background is outlined in the report of Dr Furst. Dr Furst assessed the offender for a period of one hour.

49. The offender was born in Gosford where he attended primary and high school. He commenced Year 7 but frequently truanted and struggled to concentrate at school. He left school at an early age.

50. He reported his father was violent and there was a family history of drug use and heavy drinking. His parents separated when he was three or four years old which was the last time he saw his father. His father committed suicide in either 2004 or 2005.

51. He reported being the victim of sexual abuse by a relative at seven years of age. The offender reported that during his teens he was “prone to sadness, agitation and feeling down and out”. He was described as “uncontrollable” at the age of ten to 11 years and was placed in the care of DOCS for a short period before returning to live with his mother.

52. Dr Furst noted as follows:

“There was clear evidence of conduct disorder, Mr Potts being arrested on the first occasion when he was about ten or 11 years of age. He was detained in Juvenile Justice facilities on a number of occasions in his teens for serious charges as reflected in his criminal history (total of about three years). Mr Potts has never worked or studied since leaving school. He reported a history of apparent ‘voices’ from the age of 12 years which were triggered following the use of ice (methylamphetamine). He said, ‘The only thing that stopped the voices was heroin.’”

Drug and alcohol history

53. The offender reported drinking heavily from the age of 12 and using ice and cannabis from 12 to 13 years of age. He reported that his main drug of addiction during his teenage years was heroin. He began using heroin at 14 years old and became addicted. His continued offending in Queensland was in the context of ongoing heroin addiction. He had lived in Queensland from 2007 to 2017.

53. In relation to the offender’s history of apparent voices from the age of 12 years, Dr Furst noted that he had been prescribed various medications for psychotic symptoms. He reported two psychiatric admissions to hospital in 2015 and 2016. Dr Furst noted as follows:

“He was apparently experiencing ‘voices’ telling him to hurt himself and hurt others. He reported ‘seeing things’ such as shadows and felt very paranoid including feeling that people were following him and that his life was in danger.”

55. Dr Furst noted that the offender discontinued his medication in July or August 2017 approximately three months before his release from custody in Queensland in October 2017.

56. The offender reported relapsing into using ice after his release from custody which resulted in further psychotic symptoms. He was again admitted to hospital in November 2017 and thereafter he relapsed into heroin use.

Medical history

57. The offender reported he has Hepatitis C (positive).

Offence related issues

58. The offender reported he stole a vehicle in Queensland because he wanted to “get out of Queensland”. He drove to the Central Coast. At the time he reported that he was using heroin and ice and he was not taking his medication. Dr Furst reported that the offender regrets his offending.

Current mental health

59. Dr Furst reported as follows:

“Mr Potts reported ongoing symptoms of paranoia and hallucinations whilst in custody over the last 17 months, especially since around September 2018. He has been managed in the clinic area of Parklea Correctional Centre over recent weeks as a consequence of derogatory and command auditory hallucinations including on the morning of the recent assessment with myself which were telling him to hurt himself, kill himself and harm people. He has been sent out to hospital on five occasions in total since his arrest after swallowing razorblades including to Kempsey Hospital, Port Macquarie Hospital and most recently Blacktown Hospital from Parklea.”

60. Dr Furst reviewed a report of Dr Chew dated 24 August 2018.

61. Dr Furst was of the opinion that the offender meets the criteria for substance use disorder, schizophrenia and personality disorder (antisocial and borderline features). Dr Furst stated as follows:

“Mr Potts has also developed a major mental illness over the last several years characterised by recurrent auditory hallucinations, paranoid thinking and self-referential ideas. His symptoms have lasted much longer than the requisite period for the diagnosis of schizophrenia (one month acute symptoms and a total of six months of attenuated symptoms) as opposed to drug induced psychosis alone (less than 28 days of symptoms following cessation of drug use) even when treated with antipsychotic medication. However, his pattern of drug addiction and relapsing drug use during his brief periods out of custody over the last several years has clearly exacerbated and maintained his schizophrenic illness.”

62. In relation to any causal connection between the offender’s mental health and the offending, Dr Furst stated as follows:

“Although drug dependence alone does not necessarily mitigate against the seriousness of his offences, I would regard his long‑term addiction to drugs especially heroin as being largely Mr Potts’ maladaptive means of coping with severe childhood abuse and a means of coping with debilitating symptoms of his schizophrenic illness, indirectly mitigating against the seriousness of his offending. I note Mr Potts was not taking any psychotic medication at the time of offending and was unstable in his mood, further relevant factors in relation to mitigation.”

63. Dr Furst recommended the offender be placed under the care of psychiatric services of Justice Health with regular psychiatric reviews and prescription of antipsychotic medication and that treatment include:

1. Psychoeducation to improve insight and compliance with treatment;

2. Psychology treatment;

3. Drug and alcohol treatment including EQUIPS intensive drug and alcohol treatment program and then opium substitution therapy when in the community; and

4. Educational vocational training as he is functionally illiterate.

64. Dr Furst was of the opinion that the offender is likely to remain “functionally impaired by his schizophrenic illness, personality disorder and drug addiction for the foreseeable future making it more likely than not he will end up chronically institutionalised”. In such circumstances, Dr Furst was of the opinion that the offender was a medium to high risk of reoffending.

The offender’s evidence during the sentence proceedings

65. The offender gave evidence during the sentence proceedings. He indicated he is now 25 years of age and that it was his intention to return to live in Queensland with his mother upon his release from custody. He gave evidence that between February 2019 and May 2019 he had multiple hospital admissions as a consequence of swallowing razorblades. He said at the time he was hearing voices telling him to hurt himself. Also before the Court was medical records from Blacktown Hospital confirming these admissions (Exhibit 3).

66. The offender gave evidence that since May 2019 he had two further admissions to hospital for the same reason. When asked why he was doing it he said, “It is stress relief when I self‑harm.” He stated that he was currently on medication, the effect of which was to slow him down. He said despite his medication being recently increased, he is still hearing voices. He indicated he has not yet seen a psychiatrist whilst in custody despite a request to do so.

67. He indicated he remains addicted to opioid drugs. He is seeking drug and alcohol counselling whist in custody and said he wants to be drug free in the future. He said “I want to get out and get a job and live a normal life.” He said he understood the effect of his offending upon the victims and would apologise to them if he was given the chance.

68. Having regard to the evidence of Dr Furst and the evidence of the offender, I am satisfied the offender is suffering from serious mental health issues.

69. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, McClellan J summarised the principles relating to the relevance of a mental illness with respect to sentencing as follows:

1. Where the state of a person’s mental health contributes to the commission of the offence in a material way the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence;

2. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed;

3. It may mean that a custodial sentence may weigh more heavily on the person because the sentence will be more onerous for that person. The length of the prison term or the conditions under which it is served may be reduced;

4. It may reduce or eliminate the significance of specific deterrence;

5. Conversely, it may be that because of a person’s mental illness they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.

70. Having regard to the evidence before the Court, I am satisfied that less weight should be given to both general and specific deterrence in circumstances where the offender is suffering from serious mental health issues. Further, I am satisfied that custody will be more onerous for the offender having regard to his mental health issues. In those circumstances, I propose to moderate the otherwise appropriate sentence.

Remorse

71. Having considered the evidence of the offender, I am satisfied that he is genuinely remorseful for his conduct and he has accepted responsibility for his offending.

Prospects of rehabilitation

72. Any view of the offender’s prospects of rehabilitation must be extremely guarded given the offender’s longstanding mental health issues and drug use issues. I am satisfied that the offender will need significant treatment and supervision upon release to give him the best opportunity of remaining offence free once he is in the community. Having regard to the evidence of the offender, I am satisfied that he has insight into his mental health and drug issues and is genuine in his desire to address these issues to reduce his risk of reoffending. At this stage, I am unable to find that the offender is unlikely to reoffend.

Special circumstances

73. It was submitted on behalf of the offender that the Court would find special circumstances and vary the statutory ratio between the non‑parole period and the parole period pursuant to s 44(2B), Crimes (Sentencing Procedure) Act having regard to the following factors:

1. The offender’s need for intensive supervision upon release; and

2. The accumulation of the current sentence upon the sentence being served.

74. I accept that special circumstances is established and I do propose to vary the statutory ratio between the non‑parole period and the parole period.

Totality

75. In circumstances where the offender is being sentenced for more than one offence I am required to consider the question of totality. The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other. If so, the sentences should be concurrent but if not there should be some accumulation: see Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41. I propose to impose an aggregate sentence. There will be some notional accumulation given the separate serious episodes of criminality.

The relevance of the offender’s background

76. It was submitted on behalf of the offender that having regard to the offender’s background, particularly his difficult childhood and also his early addiction to drugs, that there should be some moderation of the otherwise appropriate sentence. I am satisfied that the offender has had a childhood which has been characterised by dysfunction which has unsurprisingly led to his early addiction to drugs. I am satisfied that his childhood deprivation warrants a reduction in his moral culpability for the reasons set out in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [42] to [44].

Determination

77. As previously indicated, I propose to impose an aggregate sentence pursuant to s 53A(1), Crimes (Sentencing Procedure) Act.

78. In determining the appropriate sentence I have had regard to the purposes of sentencing as set out in s 3A, Crimes (Sentencing Procedure) Act.

79. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate in respect of each offence: s 5(1), Crimes (Sentencing Procedure) Act.

80. I have had regard to the objective gravity of each offence, the relevant prescribed maximum penalties and the offender’s subjective circumstances.

81. Pursuant to s 53A(2)(b), the sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence are as follows:

1. Sequence 1 (H66933034), Robbery - A starting term of 3 years less a 25% discount for the plea of guilty leaving a total term of 2 years and 3 months;

2. Sequence 2 (H66933034), Robbery - A starting term of 3 years less a discount of 25% for the plea of guilty leaving a total term of 2 years and 3 months;

3. Sequence 3 (H66933034), Robbery - A starting term of 3 years less a discount of 25% for the plea of guilty leaving a total term of 2 years and 3 months;

4. Sequence 4 (H66933034), Attempt larceny - A starting term of 12 months less a discount of 25% for the plea of guilty leaving a total term of 9 months.

5. Sequence 5 (H66933034), Take and drive conveyance without consent of the owner - A starting term of 8 months less a discount of 25% for the plea of guilty leaving a total term of 6 months;

6. Sequence 6 (H66933034), Take and drive conveyance without consent of the owner - A starting term of 8 months less 25% for the plea of guilty leaving a total term of 6 months; and

7. Sequence 7 (H66933034), Be carried in conveyance taken without consent of the owner - A starting term of 6 months less 25% discount for the plea of guilty leaving a total term of 4 and a half months.

82. Mr Potts, in relation to each offence you are convicted.

83. I sentence you to an aggregate sentence of a total term of 5 years to date from 19 April 2019 and expire on 18 April 2024. I fix a non‑parole period of 2 years and 9 months to date from 19 April 2019 and expire on 18 January 2022.

84. The first date upon which you will become eligible for parole is 18 January 2022.

85. I have found special circumstances and I have varied the ratio between your time in custody and your time on parole.

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Decision last updated: 17 November 2020