R v Presdee - [2015] NSWDC 429

District Court

New South Wales

Medium Neutral Citation: R v Presdee [2015] NSWDC 429
Hearing dates: 19 November 2013 - 6 December 2013; 20 February 2015
Date of orders: 20 February 2015
Decision date: 20 February 2015
Jurisdiction: Criminal
Before: Tupman DCJ
Decision:
Overall non-parole period of 8 years; parole thereafter of 4 years; Overall term of 12 years imprisonment;

Catchwords: CRIMINAL LAW – Sentence – Robbery armed with offensive weapon – Aggravated Break & Enter & commit serious indictable offence – In company – Specially aggravated Break & Enter with intent – Break & Enter House and Steal value <= $60,000 - Take & drive conveyance without consent of owner – Larceny - Assault with intent to rob armed with offensive weapon – Accessory after the fact – Dispose of property – Theft – Serious indictable offence < = $5000 - Joint Criminal Enterprise – 15 Substantive offences & multiple Form 1 offences – Parity – Combination of pleas of guilty and convictions after judge alone trial – Long criminal record – Drug addiction
Legislation Cited: Crimes Act 1900; ss 97(1); 112(2); 113(2); 117; 349(2); 350
Crimes (Sentencing Procedure) Act; s 10A
Cases Cited: R v Henry (1999) 46 NSWLR 346
Category: Sentence
Parties: Paul Wayne Presdee
The Crown
Representation: Mr L. Lungo (Crown Prosecutor)
Ms J. Gallagher (Counsel for offender)

File Number(s): 2012/52537; 2013/253966

Judgment

The offender is before me for sentence for three groups of offences, all of which come before the court differently. Almost all of these offences were committed either in company with, or as part of a joint criminal enterprise with, the co-offender Adam Craig over a period from about 5 January to 16 February 2012, mostly in the Illawarra area but also some in Bathurst and the south-western and western suburbs of Sydney.
Craig pleaded guilty to all of the offences and gave evidence at a trial involving this offender in relation to some of them. I sentenced Craig in relation to these offences on 27 June and 17 July 2014 and those sentence judgments are tendered on this sentence.
One group of offences committed at Hair Harmony Salon in Leumeah was committed jointly with Adam Craig and Kingsley Coleman. There is no evidence about sentences in relation to this latter person, because he was apparently facing trial for other more serious offences with all of these matters, to the extent that there is an overlap to be sentenced once the trial had ended.
Parity as such with Craig is not applicable for any of these offences because, for many of them, this offender Presdee either went to trial and was convicted, or pleaded very late. Further, Craig had the benefit of a very substantial discount not available to Presdee even for the ones for which has pleaded guilty.
However, the roles each of them played in relation to the common offences was either identical or very similar, so relativity of sentences will be important. Equally will be a consideration of the sentence given to Craig for those offences which form the foundational offence for matters for which this offender is being sentenced as an accessory after the fact.
The offender Presdee was arrested for these offences on 16 February 2012 and has remained in custody, bail refused, for all matters from then. The Crown sentence summary states that the offender was not on bail nor on a form of conditional liberty at the time he committed these offences. That would not appear to be accurate when looking at the criminal record. He failed to appear in court at Campbelltown on 21 December 2011 for charges of drive whilst disqualified and other charges. It would appear that he was on bail because, in addition to these charges, he was then charged with failing to appear in accordance with bail for those offences on 18 January 2012. On that day, he was convicted in his absence and a warrant issued. Presumably, it was executed when he was arrested for these matters in February 2012. He was dealt with in the Local Court at Campbelltown for this group of offences on 15 March 2013 and sentenced to fixed terms of imprisonment of 8 months for the drive disqualified and 3 months for the fail to appear. So it would appear that he was on bail for those offences at the time he committed the offences before me for sentence.
In terms of a commencement date of the sentences I am to impose however, I have decided to commence them from 16 February 2012, the date that he went into custody following his arrest. Whilst, given his record which I will refer to soon, he probably would have received a prison term for the drive disqualified offence in any event, in fact the Magistrate had no option because he was bail refused for these much more serious offences. I am conscious that this decision means that the sentences imposed in March 2013 at Campbelltown will be totally subsumed within the ones I will impose today but they pale virtually into insignificance compared with the myriad of matters for which I will sentence him today and on a consideration of totality I have concluded that the sentences should commence from the date of his arrest.
Unusually, I propose to deal with the subjective case put forward by the prisoner initially, before dealing with the factual matters surrounding the specific offences. That is because, in my view, as I hope will become clear, his subjective circumstances are either similar to or identical with Craig, which will be important in analysing whatever other distinctions there might between them for any particular offence, so that relativity of sentence can be determined.
This offender is now 41, he was 39 at the time of the offences. He has a very long criminal record which is tendered on sentence. I do not propose to go through it in detail but will attempt a summary.
It starts in the Children’s court in 1989. There are multiple offences in the Children’s Court from the age of 16 including receiving, being carried in a stolen car, break, enter and steal, goods in custody and driving offences. His adult record starts in 1993 when he was sentenced for multiple counts of break, enter and steal in the District Court, two terms of imprisonment with a period of parole, but he was returned to custody, with that parole having being revoked, and to serve the balance of parole. Then again in 1994 he was sentenced to imprisonment for break, enter and steal in the District Court. There are multiple entries for drive disqualified giving rise to sentences both suspended pursuant to s 12 and also full-time periods of imprisonment. He was sentenced to periods of imprisonment in 2002 for a slew of offences committed between 1999 and 2000 including larceny, shop lifting, drive disqualified, assault and other offences. That term of imprisonment would appear to have ended in mid-2001. He then received a term of imprisonment for larceny motor vehicle until early 2002. He received prison terms of 3 ½ years in 2002 for break, enter and steal, which saw him released in mid-2003. He was sentenced again to prison from October 2003 for drive disqualified. There were further periods of imprisonment in 2005 for offences of driving a stolen car, other driving offences and possessing house breaking implements.
There is another conviction in 2006 for break, enter and steal, giving rise to a term of imprisonment of 18 months until March 2007. There are then terms of imprisonment from December 2009 for drug offences, larceny and larceny motor vehicle offences. The overall non-parole period for this group of sentences ended on 20 October 2010.
The offender appears to have spent most of his life, since he was about 18, in prison. Before he was arrested for these matters he was last released to parole on 19 October 2010. He seems to have served his parole for those drug and larceny offences without committing further offences and the overall terms expired on 1 April 2011. He has stayed out of custody until his arrest for these matters on 16 February 2012, but of course it is clear that he was committing all of them from very early January and even before that he had committed the drive disqualified offence that gave rise to the sentence in March 2013.
This period out of custody and one earlier period to which I will refer in due course, would appear to be the longest that he has spent out of custody for the whole of his adult life. Equally the overall term of imprisonment that I will impose today will represent the longest period he has ever spent in prison without a break. It is a very long criminal record and much of it is for the same sort of offence that are before me today for sentence.
His criminal record it seems to me comes close to amounting to an independent circumstance of aggravation, but the Crown has not argued that I would regard it as such in this sentence and I do not. It clearly disentitles him to leniency and it is also a relevant factor in assessing his prospects of rehabilitation.
I also accept that, like his co-offender Craig ,he has a very extensive history of drug use and addiction, most significantly being a long standing addiction to heroin and more probably than not the whole of his criminal record is connected with this drug addiction. Certainly all of the offences before me were committed, I accept, because he was using heroin extensively at the time, withdrawing from it from time to time and committing these offences to obtain funds to buy heroin, just as was his co-offender Craig as I found in the sentence judgment for him.
Going to questions of this offender’s background, he gave evidence on sentence and amongst other things affirmed the truth of the history he had provided to Michelle Player, Clinical Psychologist who has provided a report to the court. I accept from a combination of his evidence and that report that he grew up in Campbelltown as one of five brothers. He was raised in a stable home environment. His parent’s marriage unfortunately broke down when he was about 8 or 9. The children were split between both parents and he lived with his mother. She re-married, but he did not have an entirely supportive relationship with his step-father during his adolescent years, in part because he himself was not following directions. As a result he was evicted from home when he was 16 and the commencement of the entries on his criminal record in the Children’s Court seem to arise from this time. He lived on the streets over several years after that and had no contact with his mother and step-father. During this period he started to commit criminal offences and was introduced to heroin. When he was about 20 he found stable accommodation and started to have contact with his mother and family members again but it was also a time at which he started to spend considerable periods of time in prison after committing various offences.
He had a lengthy period in the community, not in gaol, between 1996 and 2000 when he was in a relationship with a woman who has been the one stable relationship that he has had in his life and with whom he has a daughter, who is now 17 or 18. During that period out of prison he had stable employment and was not using heroin. He was saving money to buy a house, but in 1999 one of his brothers, who also had a drug habit, broke into his house and stole his savings of about $20,000. The offender relapsed into heroin use in response and his partner left him. He became dysfunctional and stopped working. Ever since then he has been in a continuing cycle of drug use, criminal offending and incarceration.
He was in a relationship briefly with another woman for a period of time in 2001 leading to the birth of another daughter in March 2012 after he went into custody. That relationship ended once he was arrested but he does have some contact with the mother of that child. I accept that he has a sense of commitment to his two year old daughter but has had only limited contact with her since he has been in custody the whole time since her birth.
As earlier stated he had a period of stability in the community after his release in October 2010. He was working with his brother and had stable accommodation and he was not using heroin.
In March 2011 he was charged with an offence which alleged that he was found in possession of implements with the intention of committing a break, enter and steal offence. As I understand it this involved his being found in possession of what were in effect his work tools and this gave rise to the charge. He was remanded in custody for two months until the charges were actually dismissed in May 2011. I accept he was extremely distressed at this turn of events because he had been trying to live in the community in a stable manner. He started to smoke Buprenorphine whilst in custody. Whilst he was acquitted of the charge, nonetheless when he was released, he was addicted to this opioid and continued to use it for about four months in the community. He then relapsed into heroin use in about September 2011 and by November 2011 he had started to use heroin daily, which he could not afford from the wage that he was earning working with his brother. He started to withdraw from heroin towards the end of November 2011. His brother gave him some time off from his work to get some help with the intention that he would go onto the methadone programme. He started to do something about that, but did not continue. His heroin addiction worsened, he did not return to work and he started to commit the offences before me to fund this increasing addiction to heroin.
Once again, as on a previous occasion, his life spiralled down into heroin use and the commission of criminal offences connected with it.
In terms of educational background the offender did not do well at school. He did not excel academically and truanted from the age of about 12. He left school in year 9 just before he turned 15. He does not have any formal qualifications but does have sufficient literacy to obtain employment and function in the community. After he left school he worked for eight months in a car wrecking yard. From the age of 22 he was working for his brother in stable employment for about 18 months. He worked driving a truck for about 2 ½ years but stopped that after he relapsed into heroin use in 2000 and was sentenced to prison.
He has not had stable employment between 2000 and 2010 because of his heroin use and terms of imprisonment, however he was working with his brother in a pallet wrecking business from October 2010 until he was arrested for the offence for which he was ultimately acquitted.
I accept that when he is not using heroin he can work and is a good worker. Whilst in custody on this occasion he has demonstrated that and is apparently well regarded by the prison authorities. Two areas in which he has shown ability is in cabinet making skills and welding skills and he was pursuing that work in prison until he was moved to the MRRC. His ultimate rehabilitation when released from custody would be assisted if he is able to obtain meaningful work and to the extent that he has demonstrated an aptitude to work in cabinet making and welding, his rehabilitation would clearly be assisted if, whilst he remains in custody on these sentences, he is able to continue in that work and, if necessary and possible, undertake some formal education and training in those skills.
As I said his major relationship in his life gave rise to a daughter who is now 17 or 18. He has regular and ongoing contact with her in custody. She is brought to the gaol by a friend who has provided a reference to the court. He has both family and friends in the community who are available to provide him with support in due course which does assist his prospects of rehabilitation.
He had hoped for a reconciliation with his former partner but accepts now that the relationship has ended. He continues to have a close friendship with her however because of the joint interest they have in their daughter and as I have said, has a very close relationship with his daughter. Whilst in custody on this occasion he has gone onto the methadone program and he is currently receiving 80 milligrams a day. He has undertaken regular urinalysis in custody which have all been clean. Reports from those urinalyses are before me on sentence.
He too in the past has been diagnosed with hepatitis C as a result of intravenous drug use, but that is no longer active in his system. He does not appear to have any other health or psychiatric or psychological conditions which would affect his prospects of rehabilitation. His major issue is his past addiction to heroin and the fact that he is prone to relapse to heroin use when released to the community.
He has tried residential rehabilitation programs in the past, including a period in Odyssey House in 1994 which lasted only a month. He was also admitted to the Wollongong Crisis Centre in 2004 but that only lasted three weeks. He has not taken advantage of these opportunities in the past but I note that the last of these was apparently 11 years ago and that he is now much older and I accept has perhaps a more genuine desire to abstain from drug use.
Going onto methadone is one step towards that and I accept that he will take advantage of whatever programs and courses are made available to him in the prison environment, albeit that they are likely to be limited. He has undertaken one or two courses since being in custody on this occasion for which certificates have been tendered.
The offender has always had difficulty adjusting to the community when he is released from gaol. He will need a longer than normal period of supervision in the community when he is released on this occasion to attempt a positive rehabilitation. The psychologist Ms Player has recommended an approach to his post release supervision which, if followed, in my view would improve his prospects of rehabilitation. Hopefully the authorities will accept those recommendations.
One issue in relation to the length of the non-parole period for this matter is that from a period in 2014 he has been on protection in the gaol. That arose in circumstances where he was perceived to be at risk of harm by the prison authorities. I accept from the evidence that he gave that in early 2014 he was asked by other prisoners involved with one or other outlaw motor cycle gang to arrange to bring drugs into the gaol through the regular visitors that he had. In his evidence he did not name any of these people, nor for that matter any of the particular outlaw motor cycle gangs with which they were connected. He refused their request to bring drugs into gaol.
He was then informed in some way in the prison that he was going to be attacked and stabbed by other prisoners in retaliation for refusing to bring drugs into the prison. He sought protection but was not able to provide the authorities with the names of any of those who were involved in any impending attack because his knowledge seemed to be informed rather by rumour and gossip within the prison than any specific knowledge. The prison authorities however deemed it to be sufficiently serious that they reached the decision that he was not safe in his general prison custody and moved him into protection, initially at Parklea. He had been at Parklea bail refused since his arrest and was then placed in protection at Parklea.
As I have said he had been working in the cabinet shop at Parklea and was doing well there. He was working hard and was well regarded. Whilst on protection at Parklea he was able to continue working in that shop but in the middle of 2014 he and a number of other inmates were moved, for reasons that are not apparent, from Parklea to the MRRC. Parklea is the only prison where there is work available for prisoners on protection.
Since going into the MRRC on protection I accept that the offender has not been able to work. I accept from his evidence that his routine is that he is kept in his cell for about 20 hours a day, being allowed out for about two hours in the morning and two hours in the afternoon where he has a chance to walk up and down a small yard. There are no programs available to him at this stage, although as I said he was able to complete one or two in his initial time at Parklea.

There does not appear to be anything available to him currently at the MRRC. This custodial situation I accept is likely to continue for the foreseeable future, even after he is sentenced. I accept that the prisoner wants to work when he is next released to the community and there is likely to be work available to him with his brother in the pallet wrecking business. His prospects of rehabilitation of course must be guarded because of his very lengthy criminal history and the history of relapsing into heroin use in the past.
He does have demonstrated periods of working in the community however, which provides some glimmer of hope. He is getting older and that is a factor that is likely to mean a diminished tendency to relapse and commit further offences. I also accept from his evidence that at least at present he is well motivated to remain drug free with the assistance of the methadone program and appears to have remained that way since not long after he came into custody in February 2012. A major motivation for this I accept is his ongoing relationship with his daughter which is very positive and which he values highly.
I accept from his evidence that for the offences where remorse and contrition are most important, namely those involving robberies of people, either in pharmacies or supermarkets or hairdressing salons or the like, that he is genuine in his expression of remorse. Of course where there were not pleas of guilty entered, that is a more difficult assertion to make, however I accept that especially in relation to the offences committed at Hair Harmony where he had seen the CCTV footage, he genuinely felt very sorry for his involvement in that offending, albeit that it was as an accessory after the fact.
I also accept the evidence that he gave, that the reason why he committed the break and enters in the early hours of the morning on commercial premises, was twofold. One I accept he was frank in admitting, was because he thought there was less chance of getting caught, but the other was because it reduced the chance of anyone being around and being hurt.
I have outlined his subjective case in this way, at the beginning of these sentence remarks, in order to compare it with the subjective case which I found relevant for the co-offender Craig. This offender Presdee’s subjective case, his background, his criminal history, his drug addiction and the like, it seems to me is very similar to Mr Craig. There is nothing in their subjective cases in my view which would distinguish one from the other when looking at issues of relatively of sentences.
Turning then to the actual offences before the court for sentence, they come before the court in three groups. The first group comprises eight charges in an indictment dated 13 November 2013 which was before me for trial as a judge alone trial on 19 November 2013 to 6 December 2013.
I found the offender guilty and convicted him of the following counts in the indictment:
Count 1 - a charge of aggravated break, enter and steal between 5th and 6 January 2012 at A & R Industrial Supplies, Unanderra, in company with Adam Craig;
Count 2 - an aggravated break, enter and steal between 6th and 7 January 2012 at Bunning’s Warehouse, Casula in company with Adam Craig;
Count 3a - an aggravated attempted break, enter and commit indictable offence on 9 January 2012 at Sundaze Eyewear Campbelltown in company with Adam Craig;
Count 4a - an armed robbery of Julie Singleton at the Bradbury Village Pharmacy on 16 January 2012 whilst armed with an offensive weapon;
Count 5a – an armed robbery of Charlene Franklin at Foodworks supermarket Bradbury on 17 January 2012 whilst armed with an offensive weapon;
Count 7 - an aggravated break, enter and steal between 1st and 2nd February 2012 at Mick Muldoon’s motor cycles Bathurst in company with Adam Craig;
Count 8 – an aggravated break, enter and steal between 5th and 6 February 2012 at Drummond Golf, Casula in company with Adam Craig;
Count 9 – an armed robbery of Mofid Alkhativ at Smiley’s Take-away, Leumeah on 12 February 2012 whilst armed with an offensive weapon.
Counts 1,2,7 and 8 are all contrary to s 112(2) of the Crimes Act and carry a maximum penalty of 20 years imprisonment. Where appropriate there is a standard non-parole period of 5 years imprisonment. On findings that I will later make, that these offences are all below the mid-range in terms of objective seriousness, the standard non-parole period does not strictly apply but I must bear it in mind and will do so when fixing the appropriate sentences.
Counts 4a, 5a and 9 are all offences contrary to s 97(1) of the Crimes Act with a maximum penalty of 20 years imprisonment.
Count 3a is contrary to s 113(2) of the Crimes Act and carries a maximum penalty of 14 years imprisonment.
As stated, the offender pleaded not guilty to all of these offences and there was a trial before me as a judge alone trial. I found him not guilty for some of the offences in the indictment but found him guilty of those to which I have just referred and which I have before me for sentence now.
The offences initially came to light as a result of a Task Force which had been set up to investigate property related offences which police suspected as being committed by this offender and his co-offender Adam Craig.
There was a silver VW Passat stolen in Wollongong sometime after 5 January 2012 which was used by the two offenders to commit many of these offences. It was this offender Presdee who was the driver on these occasions. The two offenders committed a very large number of similar offences over a period of time in January and February 2012. Presdee and Craig had been together for about a week before the first offence in this indictment.
For count 1 they drove the stolen VW car to A & R Industrial Supplies on the evening of 5 and 6 January 2012. It was an industrial area. The premises were locked and they both broke in, with Presdee cutting one of the locks with a saw and Craig cutting another with bolt cutters. There was considerable damage to the premises as a result of this offence. They stole a quantity of power tools including chainsaws and hedge-cutters and took them back out to the car. They later sold the goods somewhere in the Unanderra area and received a small amount for them. They had both been using heroin before committing the offence and committed the offence to fund their heroin addictions.
The total value of the tools stolen was just under $23,000 and none has been recovered. As found for Craig, this in my view is towards the bottom of the range for offences capable of being charged as an aggravated break, enter and steal. The circumstance of aggravation of being in company is not one of the more serious circumstances of aggravation. The offence happened at night in commercial premises where there was no risk that anyone would be present. The amount stolen was not huge, although not insignificant. There was extensive damage but no value ascribed to it in the evidence before me. It seems to me that in terms of their roles, there is no difference, they are equal.
Mr Craig was sentenced to an overall sentence of 18 months for that offence after taking into account 50% discount. There is no discount available for Presdee and so for him it follows, with all other things being equal, an overall sentence of 3 years would be appropriate. It has a standard non-parole period and therefore despite the fact that he will never be released to parole on this offence, I nonetheless have to set a non-parole period. I am going to be setting it at 50% and that will be clear at the end of these sentences.
For count 2, the following night, the offenders Presdee and Craig drove the same stolen car to Bunnings Warehouse in Casula. They gained entry through a sliding glass door by using their hand to force it open. They then ran towards the power tools and the closed-circuit television images shows the two of them running to this section of the store. This offender took some nail guns and Craig took some power drills. They then left the store and Presdee sold the stolen goods, either sharing the proceeds with Craig, or providing Craig with some heroin from those proceeds. The value of the goods stolen was $2,500 and the damage to the property as a result of the offence was valued at $8,500.
It was a Form 1 offence for Craig, which is yet another curious way in which this whole sentence structure is complicated and the whole sentence structure for both this person and Craig were unnecessarily complicated because of decisions taken by both the prosecution and in negotiation on behalf of the defence, presenting to a sentencing judge the same sentences for the same offences but in some cases dealt with by way of Form 1, in other cases dealt with by way of substantial offences, in Mr Craig’s case some of them sent up as related offences, in relation to both of them sometimes there are Form 1 offences and in some cases not at all. It is an unnecessarily complicated system of sentencing.
It was, as I have said, a Form 1 offence for Craig but I made a finding in his sentence that it had the same objective seriousness as the offence at A & R Supplies and therefore the same approach to sentence should be taken for Presdee. That would mean, using the same logic, a 3 year overall sentence, because there is no discount available, and with the unfortunate and unnecessary necessity of having to set a non-parole period because it is a standard non-parole period offence. To take into account the fact that for Craig it was a Form 1 offence, I will be sentencing both of these 1 and 2 concurrently with each other.
Count 3a - in the early hours of 9 January 2012, three days later, the two offenders went to the Brands On Sale factory outlet at Campbelltown after it had closed. Presdee had visited during the day when the complex was open and I accept more probably than not, had manipulated a fire escape door with a piece of tape so that it did not lock properly and they could gain entry later. The two offenders then gained entry to the premises at night through this door, having driven there in the same stolen motor vehicle. Their aim was to break into the Sundaze Sunglasses outlet on the top floor. Between them they were carrying bags with items to assist with this including hand tools, a pinch bar and rope. Craig put the pinch bar under the roller door and started to prise it up which made a loud noise, attracting the attention of a security guard who approached the two of them and interrupted the commission of the offence. Presdee verbally threatened the security guard who then left the scene and the two offenders fled without completing the offence.
In fact, this is a less serious offence than that for which I sentenced the co-offender Craig for the same factual circumstances, because Craig pleaded guilty to a more serious version of this offence, namely being armed with a dangerous weapon as a circumstances of aggravation. This is not a matter which is relevant when sentencing Presdee for this offence of attempting to break and enter these premises. The statutory circumstance is that he was in company with Adam Craig. I specifically acquitted him of the more serious offence including a circumstance of aggravation that he was armed with a dangerous weapon. This was an attempt only and nothing was actually taken. There is no evidence about the value of any damage caused by trying to prise the roller door open. The offence is rendered somewhat more factually serious by the fact, which I accept, that this offender Presdee verbally threatened the security guard when he interrupted them, but of course as I have said, I must take into account the fact that this sentence is for a less serious offence than that for which Mr Craig was sentenced.
Craig received a fixed term of 2 years after taking into account a discount of 50% overall. Their involvement was more or less equal, but as I said, this is for an offence with a lower maximum penalty. Nonetheless there is no discount available and it seems to me that a fixed term of two years is appropriate.
Count 4a, the next offence on this indictment, occurred on 16 January 2012 at the Bradbury Pharmacy. The offender Presdee drove to the pharmacy about 8.30 in the morning in the stolen car, with Craig as the passenger. Presdee waited outside whilst Craig went in. He was disguised with a grey balaclava and other items. There were a number of employees and other people inside. Craig pointed an offensive weapon, which resembled a pistol, at an employee and demanded money from the register. She tried oto open the register but was too nervous and scared and could not do so. She walked over to another register and opened it and Craig stood next to her and started to take money from the register. He picked up the register tray and ran from the store dropping a few $5 notes onto the ground on the way. He then ran out to the waiting car where the offender Presdee was and they drove off together. The amount stolen during this robbery was between $400 and $500.
The following day, 17 February 2012, the offender again drove the stolen car with Craig as the passenger to the Bradbury Foodworks Supermarket at about 7.45am. I accept from the evidence at trial given by Craig, that he was again armed with an offensive weapon which looked like a pistol. It was the same one from the day before, which he had given back to Presdee after the pharmacy robbery, but which Presdee gave back to him on the morning of this robbery at the supermarket. Again Craig was disguised with a balaclava. He pointed this offensive weapon at a cashier and demanded money from her. She gave him money from the till in an amount between $300 and $500. Both of these armed robbery offences committed at Bradbury were brought against this offender Presdee as part of a joint criminal enterprise with Craig.
The role played by Presdee was as the driver of the getaway car with Craig being the one who actually confronted the victims. The amount stolen on each occasion was relatively small. As found in the sentence for Craig, I accept the choice of target was more or less spontaneous and more probably than not, for the whole of the time that these offences were committed, both these offenders were using and withdrawing from the use of heroin and committing these offences to obtain money for this drug.
There is a distinction again between these two offences for which I sentence Presdee, and the corresponding matters for which I sentenced Craig, arising from the same facts. Craig pleaded guilty to aggravated armed robbery admitting that he had used a replica pistol. There was no evidence other than his admission about that. I specifically acquitted Presdee of counts 4 and 5 of aggravated armed robbery but convicted him of the armed robberies which are 4a and 5a. That means that in factual terms I could only find that the weapon Craig used in the case against Presdee was something that looked like a handgun but that the Crown could not exclude the possibility that it was a toy or something that would not otherwise fall within a definition of dangerous weapon. The maximum penalty is less and for that reason alone, the objective seriousness is less and the penalty should be lower. Further, whilst Presdee did commit the offence with Craig as part of a joint criminal enterprise, it was Craig who went into both places disguised, confronted the employees and others by pointing what, at the very least, looked like a handgun and demanded money, Presdee waited outside in the car. That is a lesser role and also reduces his moral culpability somewhat. Craig’s sentence for this was 2 1/2 years, charged as an aggravated armed robbery, but after taking into account 50% discount. No discount arises for Presdee.
It is necessary to take into account the Henry guideline judgment in relation to setting the appropriate sentence for these offences, but his lesser role in my view diminishes the extent to which that guideline influences the appropriate penalty here. For each of these offences I have concluded that a term of 3 imprisonment is appropriate. I will order that they be served concurrently with each other. They are separate offences, not necessarily part of the same episode of criminality, but sufficiently similar that it is appropriate to do accumulate the sentences. In any event, there is a need for a significant degree of partial accumulation for each of these sentences to give rise to an appropriate total period of imprisonment and that is another reason why I will adopt that course.
Count 7 was an offence committed overnight on 1 and 2 February 2012. The offenders Presdee and Craig drove to Mick Muldoon’s Motorcycles in Bathurst in a stolen station wagon. They were staying in Bathurst at the time. They gained entry to the shop by smashing a window at the front of the store which made a hole big enough to walk through. Both of them entered and each took a small motorcycle and other vehicles and the offender Presdee also took some motorcycle boots and clothes. The offender Craig cut his hand exiting through the glass, leaving some blood behind, which was later analysed for DNA which matched him. Between the two offenders, they stole a Husqvarna CR50 motorcycle, two Junior Axle AXO motocross bikes, four RSD brand boots and several items of motocross clothing. I accept that the offenders took the stolen items back to a house where they were staying in Bathurst at the time, took them inside and then later loaded the bikes, at least, into a minivan they had hired the day before and then both drove them back to Sydney in company with Craig’s partner, Rebecca Hazlitt, with the Australian intention of selling them, which is what eventually happened. The boots and clothing appear to have been abandoned in the house at Bathurst. The two offenders received $2,400 for selling the bikes. All of this money I accept was used to buy heroin. The cost of repairing the damage to the premises is not before me in evidence but it was obviously not minimal, given that the front window of the premises was smashed, but there is no evidence setting out the actual quantum.
I further accept that from the evidence given by the owner of the premises, that both this offender and Mr Craig had been in the shop earlier that day acting suspiciously in a way which I accept amounted to them both being engaged in a degree of planning, checking out the store before committing the offence later that evening. The moral culpability of both offenders in my view is equal and there is no meaningful distinction between the two of them. As found for Craig, this is a serious offence, but not the most serious incident capable of being charged as an aggravated break enter and steal for the same reasons that I set out in the judgment for Craig. The circumstance of aggravation, being in company, is not the most serious. They were commercial premises broken into at night when there could be no expectation that anyone would be present. As found for Craig, in my view this offence is towards the bottom of the range in terms of objective seriousness. The only meaningful difference between the two of them for this offence is that Craig had two offences at Bathurst for which he pleaded guilty, for one of which I found this offender not guilty and also had some Form 1 offences to take into account as well.
For what I will refer to as the Bathurst offences, Craig was sentenced to a period of imprisonment of 2 years with a 12 month non-parole period, which of course took into account a 50% discount. In the circumstances that there is only one offence before me from Bathurst for this offender, the starting point of 4 years seems a little too high and for that reason I will be setting an overall sentence of 3 years for this offence but once again I will have to set a non-parole period because this is a standard non-parole period offence.

Count 8. This offence occurred in the early hours of 5 February 2012 once the offender and Craig had returned to Sydney from Bathurst. At about four in the morning they drove to the Drummond Golf Store at Casula in a different stolen car. This store is just opposite the Bunnings store that was the subject matter of count 2. Together they smashed the front glass doors, entered the premises and stole a large quantity of items including golf clubs, clothing and sunglasses. They were both disguised. I accept from the evidence of Craig at trial that they had driven past the premises earlier in the afternoon as a form of reconnaissance.
The total value of the property stolen was $23,310. They fled in a stolen car containing the goods and were chased by a security guard, but got away. They sold the goods around the Campbelltown area and obtained money from which I accept more probably than not this offender, like Craig, bought heroin.
In relation to this offence their roles are identical and it is towards the bottom of the range in terms of objective seriousness for offences capable of being charged. Craig received an overall term of 12 months for this offence having taken into account a 50% discount.
There is no reason to distinguish this offence at all as committed by this offender and therefore an overall term of 2 years is required, but once again I have to set a non-parole period because it is a standard non-parole period offence.
Count 9 occurred on 12 February 2012 at Smiley’s Takeaway in Leumeah. The offender went to that shop with Craig at about 6pm when thep shop was closing. Both of them were disguised. I accept that the offender was armed with an object shaped like a pistol but it was not real and was not a replica. Craig was armed with a bamboo stick. The two offenders walked into the takeaway shop and the co-offender Craig threatened the male owner who was present so that Presdee could go to the cash register, which he did, and took money.
The male and female workers from that shop were present and they panicked, having been confronted in this way, and also having seen the two offenders walk up the side of the shop just before they entered. They retreated to the kitchen and closed the door and tried to call the police.
The offender Presdee pointed the toy pistol at them during the robbery. The two offenders acting together stole about $150 in cash from the register during this robbery.
Each of Craig and Presdee in my view played a more or less equal role in this offence. It is serious offending, involving the robbery of vulnerable victims in suburban shop premises just on closing time, each of them threatening at least one of the owners either by pointing a toy pistol at one of them or in Craig’s case threatening the male owner so that Presdee could get access to the register.
The Henry guideline must be taken into account concerning the appropriate sentence for this offence and that was a matter taken into account too when sentencing Craig.
This is not right at the bottom in terms of objective seriousness because a further circumstance of aggravation, not the matter of specific pleading, is that they were in company and this increases the seriousness of the offending.
Craig received 2 1/2 years for this offence after a 50% discount, therefore from the starting point of five years. There is every reason why the sentence for this offender should be identical but, as I will make clear, I have in fact decided to apply a fixed term of 4 years for this offence, but more than anything else, in order to give effect to the overall sentencing structure that I have in mind.
That is the first group of offences for sentence. The second group of offences comes before me following the offender’s pleas of guilty on indictment in the District Court of Sydney on 17 March 2014 to 7 offences in an indictment dated that day. The offender had been committed for trial on 20 March 2013 and 12 February 2014 on a large number of offences. The offences originated in Campbelltown, but the matters were listed for trial in the Downing Centre, but did not proceed to trial after negotiations between the parties.
The accused ultimately pleaded guilty to counts 1A, 2A, 3, 4, 5A, 6A and 7A and not guilty to the remaining charges. The Crown accepted the pleas in full discharge of the indictment and the sentence matters were transferred to me for sentence at the same time as sentencing for the matters following the judge alone trial.
The offences are count 1B, accessory after the fact to the armed robbery by Adam Craig of the Video Viz store at Raby on 11 January 2012. According to the Crown’s summary, albeit not necessary according to the indictment, but according to the Crown’s summary, this is contrary to s 97(1) and 349(2) of the Crimes Act,1900 and carries a maximum penalty of 14 years’ imprisonment.
He asks that when sentencing him for this offence I take into account three offences on a Form 1 numbered 1, being two counts of take and drive stolen motor vehicles on 22 January 2012, one vehicle being AE65QM at Cringila, the other XMB 893 at Farmborough Heights. The The third Form 1 offence is a charge of attempting to rob Geijin Piao at Figtree on 22 January 2012.
There are agreed facts for all of these offences in this second group. The substantive offence was committed on 11 January 2012. The offender drove Adam Craig to a shopping complex in Raby in Western Sydney where the video store was located. Craig got out of the car and went into the store where the owner was preparing to close. He approached him and demanded money and pulled up his jumper to display a toy pistol. The owner handed over about $500 in cash from the till. Craig left and returned to the vehicle where Presdee was waiting.
There is no evidence on this sentence that Presdee knew that Craig was going to commit this robbery, but according to the agreed facts became aware that he had done so when he had got back into the car. Knowing that, he drove Craig away from the scene. This plea is entered and accepted on the basis that the accessorial behaviour is his driving the offender away from the robbery in those circumstances.
As such it is much lower in terms of objective seriousness than the foundational offence committed by Craig and of course the maximum penalty is lower.
The Form 1 offences are in fact not connected with this offence in Raby. On 22 January 2012 Presdee and Craig used a screwdriver to gain access to a Ford ute, AE65QM, parked in a street in Cringila. They drove it away and it was later recovered in Farmborough.
On the same day in Farmborough Heights the offender Presdee gained entry to a red Ford Falcon ute, XMB 893, and drove it away. It was later recovered in Bradbury.
On the same day about 6pm Presdee drove Craig to the Victory Plaza in the Wollongong area in one of the stolen utes. Craig got out of the car and went into the Plaza Newsagency, went behind the counter, and produced a large screwdriver with the intention of stealing money from Geijin Piao. Mr Piao grabbed an iron bar and chased Craig from the newsagency. Craig returned to the car where Presdee was waiting to drive them away and they both left. This Form 1 offence is brought on the basis of joint criminal enterprise. It is a separate and serious offence of attempted robbery.
Each of these three Form 1 offences is related to each other, but not in any way factually related to the foundational offence occurring at the video store. There should be proper weight accorded to them as additional offences when assessing the appropriate penalty for the foundational offence.
Relativity of sentence in my view is very difficult to effect for this group of sentences. It is an accessory after the fact where Craig was sentenced for the offence of aggravated armed robbery. Five years was the indicative sentence indicated and there was 50% discount. But also for Craig there were aggregate sentences imposed for this and other offences.
Presdee’s offence is much less serious. He pleaded guilty, albeit late. There are Form 1 offences, one of which is an attempted robbery, which is not minimal in terms of objective seriousness and must be dealt with in a meaningful way.
Doing the best I can, taking all of those matters into account, it seems to me that for this offence 1B, taking into account the Form 1 offences, 2 years is an appropriate sentence.
Count 2A is a further charge of accessory after the fact of robbery by Adam Craig of Rhiannon Bennett at Unanderra on 22 January 2012. According to the Crown’s summary this is brought contrary to s 97(1) and s 350 of the Crimes Act,1900 albeit that is not necessarily echoed in the indictment, but nonetheless I accept the Crown’s summary as being accurate. As such it carries a maximum penalty of 5 years’ imprisonment.
The offender asks that when sentencing him for this matter I take into account three additional offences on a Form 1, number 2. They are all offences committed on 23 January 2012. The first is a charge of breaking and entering Paul’s Warehouse at Campbelltown and stealing 36 pairs of shoes, which would carry a maximum penalty of 14 years if sentenced separately.
Number 2 is the charge of disposing of 34 pairs of those stolen shoes knowing them to be stolen and the third is a charge of driving a blue Holden Commodore, BTH 46Z, at Bradbury on that date.
The Form 1 offences are not factually connected with the foundational offence, which is count 2A. That offence occurred on 22 January 2012 when the offender Presdee drove a stolen Ford ute to Unanderra with the co‑offender Craig. They parked in the Woolworths car park and Craig left the car and approached the Commonwealth Bank ATM. He stood behind Rhiannon Bennett, who was withdrawing cash. As a $20 note was dispensed he said to her “Give me your cash” and grabbed the $20 note and her wallet, which contained $20 and personal items. He ran back to where the offender Presdee was who, according to the facts, became aware of the offence and drove him away from the scene. This activity apparently constitutes the accessorial behaviour on his part.
The Form 1 offences occurred on the morning of the following day. The offender Presdee drove another stolen car into the loading dock of Paul’s Warehouse at Campbelltown allowing access to the premises which were closed at the time. He entered the warehouse and stole 36 pairs of shoes. The total value of the shoes was $4,320. He gave one pair to Craig and kept one pair for himself and sold the rest.
On that night Presdee broke into a Holden Commodore, BTH 46Z, in Bradbury and drove it away. It was located the next day in the same suburb.
The Form 1 offences are unconnected with the foundational offence and curiously, it seems to me, the break, enter and steal offence at Paul’s Warehouse is a much more serious offence than the foundational offence, because it has a maximum penalty of 14 years compared to the maximum penalty of 5 years for the offence of accessory after the fact to robbery. It is curious that this has occurred, but the Crown has elected to accept this and to have these offences taken into account. Obviously they must be taken into account in a meaningful way, but they are not matters for separate sentence.
I make the same findings in terms of the objective seriousness of these offences as I did for Craig so far as the foundational offences are concerned, but bearing in mind of course that I am sentencing this offender for an accessory after the fact.
As I have also said, Craig received aggregate sentences for these offences and it is hard to approach a sentence in terms of strict application of relativity. By way of aggregation of sentences Craig received 3 years, but for three substantive offences. Doing the best I can I have concluded that for this offence a term of imprisonment of 2 years is also appropriate, taking into account the objective seriousness of the accessory after the fact charge and the plea of guilty, which has some utilitarian value, albeit that it was entered late.
Counts 3, 4 and 5A in this indictment cover the same incident. Count 3 is a charge of robbing Renelle Duck and Renelle’s Cutting Edge Hair Salon at Campbelltown on 11 February 2012 whilst armed with a handgun. It is brought contrary to s 97(1) of the Crimes Act,1900 and carries a maximum penalty of 20 years’ imprisonment. The offender asks that when sentencing him for this matter I take into account an offence of the armed robbery of Ms Curtis at the same place, which is to be found in Form 1 number 3. It is also an offence contrary to s 97(1) of the Crimes Act, 1900.
Count 4 is a charge of robbing Amanda Burgoyne, also on the same date at Renelle’s Hair Salon whilst armed with a handgun. It is also an offence contrary to s 97(1) of the Crimes Act, 1900.
Count 5A is a charge of stealing a set of car keys belong to Kate Newell during the same offence at Renelle’s Cutting Edge Hair Salon on 11 February 2012. It is a larceny charge contrary to s 117 of the Crimes Act and carries a maximum penalty of 5 years’ imprisonment in this Court. It is capable of being dealt with in the Local Court.
The relevant facts for this group of offences is that Ms Duck was working at her hair salon on Saturday 11 February 2012 with two employees including Kate Newell. The offender and Craig entered the salon at about 10.45am, both disguised wearing balaclavas. Presdee entered first holding a black toy pistol and Craig followed him holding a large screwdriver. Presdee pointed the toy pistol towards a customer and instructed everyone to get onto the ground. Craig went to the cash register and placed money in a plastic bag. Presdee kept asking who owned the BMW outside and asked for the keys. He was pointing the toy pistol at Ms Curtis at the time. Out of fear she handed over her handbag which he tipped onto the floor and took her purse. Presdee asked for all the purses. Ms Duck went to the back of the salon and took $300 from her purse, but hid her BMW keys. She gave Presdee the money.
Amanda Burgoyne was a customer. She was crouched down in her seat in the middle of the salon fearing for her safety. Presdee approached her and held the toy pistol at waist height demanding money. She took her purse from her handbag and handed it to him. He took $150 from her purse and then gave the purse back. He and Craig then left and Ms Newell noticed that her car keys, which she left on the front counter, were missing.
Everyone inside the salon was fearful, upset and very scared for their safety. Whilst the pistol was only a toy, thus these are not charges of aggravated armed robbery, none of those victims knew that. No doubt each of them was put in considerable fear by the actions of this offender and his co‑offender.
Some of the facts that I found in relation to the co-offender Craig were not in fact put in the agreed facts relevant for sentencing Presdee, but that does not on my finding mean that objectively this group of offences relevant for Presdee is any less serious than they were for Craig. All of these offences were serious, particularly so the armed robbery offences, and the fact that the offender was in company with Craig, which is not a specifically charged circumstance of aggravation, aggravates his commission of the offences.
Each of the sentences for these offences, in my view, should be concurrent with the other, but the sentence for count 3 should theoretically have a slightly higher sentence because there is a completely separate armed robbery to be taken into account on a Form 1.
Craig received fixed terms of 3 years for the relevant armed robbery offences, having taken into account an overall reduction of 50%. The offender Presdee, in my view, is entitled to some reduction for a plea of guilty, but it was late. It has utilitarian value because the trial did not need to be run, but the discount should only be somewhere between 15 and 20%, from a starting point of 6 years, which was obviously applied to Craig, therefore a reduction of about 12 months is appropriate.
It seems to me, without being too precise about the sentences, that 5 years for count 3 to take into account the Form 1 is appropriate, and 4 years for count 4, each concurrent with the other and 6 months for the larceny count, also concurrent with the other offences.
Count 6A and 7A arise from the same circumstances. Count 6A is a charge of being an accessory after the armed robbery of Samantha Woods at Hair Harmony, Chipping Norton on 14 February 2012. Count 7A is a charge of being an accessory after the armed robbery of Melissa Ripepi at Hair Harmony, Chipping Norton on 14 February 2012. They are both brought contrary to s 97(1) and s 349(2) of the Crimes Act, and carry a maximum penalty of 14 years imprisonment.
When sentencing for count 6A the offender asks that I take into account an additional offence on a Form 1 numbered 4, that he took and drove a Holden Caprice, the property of Alliance Auctions without their consent.
When sentencing for count 7A he asks that I take into account a further charge in Form 1 numbered 5, of being an accessory after the fact of the robbery of Celestine Kumar, also at Hair Harmony in Chipping Norton, on 14 February 2012, also an offence which if sentenced separately would carry a maximum penalty of 14 years imprisonment.
The relevant facts for this group of offences is that in the morning of 14 February 2012 the offender Presdee entered the Alliance Motor Auctions premises at Moorebank and took a black Holden Caprice. That same morning at 11.30 he drove with Craig, and another offender named as Kingsley Coleman, to Chipping Norton in the stolen Caprice. Craig and Coleman got out of the car and went into the Hair Harmony hair salon and Presdee stayed in the car. The two offenders were armed with a knife and demanded money from the female employees and customers inside.
One of these customers, Celestine Kumar, was a 73 year old woman there that morning to have her hair done. The two co-offenders forced her to hand over her bag. She was very fearful at the time. For reasons that are entirely unknown, and somewhat hard to fathom, the prosecution has agreed to have this offence, that is being an accessory after the fact of the armed robbery of Ms Kumar, taken into account as an additional offence rather than being sentenced separately. It is a very serious offence and should be taken into account in a meaningful way.
One of the two co-offenders then demanded that the two employees, Melissa Ripepi and Samantha Woods, give them everything. One of them was holding a knife close to Ms Woods’ face. Fearing for her safety she picked up her bag and threw it at him. One of the two offenders also approached Ms Ripepi, holding a knife in her direction, and demanded her bag. She also felt scared and retrieved her bag and threw it at the offender, who caught it and started to go through it. These are the foundation offences relevant for count 6A and 7A in relation to which Presdee has pleaded to being an accessory after the fact.
The co-offenders Craig and Coleman obtained a small amount of cash from these robberies and returned to the black Caprice with the handbags they had taken from the salon where Presdee was waiting for them. The agreed facts state that it was at this stage the offender Presdee became aware that the robberies had occurred and that is the basis on which the pleas have been entered and accepted. All offenders then went through the handbags which were left in the vehicle when it was later abandoned.
Clearly it seems to me this offender, Presdee, has been fortunate indeed to have negotiated such an outcome, but that nonetheless is the course that has been taken. As such his offending for the offences arising from these events at Hair Harmony is far less serious than that of either Craig or Coleman, and of course the maximum penalty of 14 years is also lower.

Craig was sentenced to accumulated overall terms of 5 years with 12 months non-parole period for this group of offences. The short non-parole period arose because it was part of a structured sentence and because of findings of special circumstances. For Craig also this overall sentence took into account the reduction of 50%.
The sentences for Presdee however should be much lower for these two offences because they are accessory after the fact offences. Taking into account the discount for the late plea of guilty, but also the fact that there are Form 1 offences for these sentences, it seems to me that terms of 3 years for each of them are appropriate, and I propose that each of these sentences be served concurrently with the other.
The third group of offences before me for sentence, and the remaining group of offences, comes before the Court for sentence after the offender pleaded guilty in the Local Court and was committed for sentence to the District Court. The substantive offence covered by H48820682 is sequence 9, which is a charge of stealing $900 in cash from the Cabbage Tree Hotel at Fairy Meadow on 6 January 2012. That is an offence contrary to s 117 of the Crimes Act, 1900 which carries a maximum penalty of 5 years imprisonment. It is capable of being dealt with in the Local Court.
The offender asks that when sentencing him for this offence I take into account two additional offences on a Form 1 signed by him on 25 July 2014, which is before me on sentence. One is a charge of accessory after the fact of steal from the person on 10 January 2012, the other is a charge of larceny at Coles, Campbelltown on 9 January 2012.
Relevant facts for this group of offences are difficult to discern from the unnecessarily lengthy statement of facts before the Court. Doing the best I can in circumstances where these are, or amount to, pleas of guilty, I accept that on the night of 6 January 2012 Presdee and Craig went to the Cabbage Tree Hotel. Presdee drove there. They both went inside, and Craig distracted staff whilst Presdee broke into the poker machines and stole $900 in cash from the hotel, before they both left in the stolen VW Passat.
The first additional offence occurred three days later when Craig stole a variety of household items from Coles at Campbelltown. Whilst the so-called facts do not make this clear, I accept that Presdee was waiting outside for him, and drove him away in the stolen car. Thus this larceny is brought against him as part of a joint criminal enterprise.
The second additional offence occurred at the Bald Faced Stage Hotel on 10 January 2012. The co-offender Adam Craig went into the hotel about 11.30 in the morning where the victim was playing the poker machines. He opened the door next to her, grabbed her handbag, and then ran with it to the stolen VW car where Presdee was waiting for him, and they drove away. There was $50 and bottle of prescription Xanax inside, all of which were stolen from the victim. Altogether the property was worth $240.
The offence that Presdee asks to be taken into account is an accessory after the fact of this steal from the person. Again the distinction between that and being part of a joint criminal enterprise is slight, but nonetheless the prosecution has elected to charge it as such, and accept it as a matter to be taken into account as such.
In my view it is completely unnecessary to sentence these matters. At the very least they were not forwarded to this Court as related summary matters like they were for Craig, but they should never have required separate sentencing. They should have been placed on a Form 1 somewhere or other, or dealt with summarily. It seems to me that given the large number of matters for which I must sentence this offender in any event they were never going to increase the overall sentence that was appropriate to set. All of these matters as they related to Craig came before the Court as related summary matters and I dealt with them by conviction, but pursuant to s 10A of the Crimes Act. The same outcome is appropriate for Presdee in my view, if for no other reason than the fact that he played a lesser role and is being sentenced for less serious offences for these matters.
They are all of the offences then for sentence. Overall there are special circumstances arising where it is appropriate to fix non-parole periods. They are the fact that there is a longer than normal period necessary with supervision following his release to the community. The other is that he will serve on my finding most, if not all, of the balance of his non-parole period in a form of protection which will make his time in prison more onerous.
I then turn to the overall result. This, it appears to me by summary, is the overall outcome of my findings. For the indictment dated 13 November 2013, for count 1, I fixed an overall term of 3 years, but because it is necessary to fix a non-parole period it would be 18 months with 18 months on parole.
For Count 2, again I indicated a term of imprisonment overall of 3 years, and again I would fix 18 months non-parole, and 18 months on parole. As I indicated, in my view, they should be served concurrently with each other.
Count 3A is a term of imprisonment of 2 years. Counts 4A and 5A, I indicated terms of imprisonment of 3 years, and that they should be concurrent with each other.
Count 7, I indicated overall 3 years, and I must fix a non-parole period, so therefore 18 months with 18 months on parole. Count 8, I indicated 2 years, and as I must fix a non-parole period it will be 12 months, with parole of 12 months.
Count 9, I indicated 4 years as being the appropriate sentence, which I have already indicated involves something of a reduction on what might otherwise be the appropriate penalty, but more so that I can structure the overall sentence than for any other reason.
In relation to the indictment dated 17 March 2014 the summary is:
Count 1B, 2 years;
Count 2A, I indicated 2 years, and that these should be concurrent with each other;
Count 3, I indicated 5 years;
Count 4, four years;
Count 5A, 6 months, which I indicated should be concurrent with each other; Count 6A, 3 years;
Count 7A, I indicated 3 years, and indicated that they should be concurrent with each other.
If these individual sentences, or groups of sentences, were entirely accumulated it would give rise overall to sentences of at least 28 years which, in my view, is excessive to reflect the total criminality.
Mr Craig was sentenced overall to 12 years imprisonment with an 8 year overall non-parole period to reflect the total criminality, but that must be viewed with two other matters taken into account. The first of those is that he received a 50% discount for all of his sentences for a combination of reasons. The other, which is at the other end of the spectrum, is that he was sentenced for many of the offences, where the facts are common with Presdee, for much more serious offences, and particularly so for those offences involving armed robbery where Presdee is being sentenced for offences of accessory after the fact.
Whilst I acknowledge that this amounts to something of a global approach, it seems to me that when these considerations are balanced out, the sentences imposed on this offender Presdee overall should be the same. I acknowledge that there is no precision intended by this approach. I also acknowledge and take into account the submission made on behalf of the Crown that whilst they were not intending, or proposing to suggest an appropriate quantum of sentence, nonetheless in their submission any sentence that amounted to an overall non-parole period less than 8 years would be inappropriate. That seems to me to be both a fair and appropriate submission to make in the circumstances.
The offender Presdee’s criminality in relation to the offences contained in the second indictment is significantly less than that of Craig, but by the same token he does not get a discount, as Craig did, for the offences in the first indictment.
So I am therefore going to set sentences which give rise to an overall non-parole period of 8 years, with parole thereafter of 4, giving rise overall to terms of imprisonment of 12 years. That will mean that overall the sentences start on 16 February 2012 and finish on 15 February 2024, with a non-parole period overall which expires on 15 February 2020. He will have 4 years on parole, which is less than the statutory division between a non-parole period and an overall sentence, which takes into account the finding of special circumstances that I have made.
In order to give rise to this I have structured a sentencing programme which I acknowledge is somewhat arbitrary, but seeks to reflect the individual sentences that I have imposed, but to give rise to the overall outcome.
There is one count which I have identified as having an appropriate overall term of 5 years, that is count 3, on the indictment dated 17 March 2014. I will be commencing that sentence towards the end of the overall sentencing period with a low non-parole period of 12 months, and parole of 4 years, to enable the overall sentencing structure that I have indicated.
I will then partially accumulate and fit the other sentences around this final outcome, hopefully giving rise to an overall non-parole period of 8 years, and an overall parole of 4 years.
Alright so to give effect to these reasons I make the following formal orders. Now my associate and I have been through these and we can’t find any holes but that doesn’t mean that there aren’t any so please, please check.
I will deal first of all in relation to H48820682, sequence 19, convicted but pursuant to 10A no further sentence. I take into account sequences 16 and 17 on Form 1 offences.
For the indictment dated 13 November 2013, counts 1 and 2, a non-parole period of 18 months commencing 16 February 2012 expiring 15 August 2013 with parole thereafter at 18 months commencing 16 August 2013 expiring 15 February 2015 giving rise to an overall term of three years commencing 16 February 2012 expiring 15 February 2015. I note that although he would have been eligible for release to parole that did not occur and cannot occur because the overall sentence has expired and he was in custody bail refused. The only reason for structuring the sentence this way is because it is an offence with a standard non-parole period and that is for both counts 1 and 2.
Count 3(a) a two year fixed term commencing 16 February 2012 expiring 15 February 2014.
Counts 4(a) and 5(a) three year fixed terms commencing 16 August 2012 expiring 15 August 2015.
Count 7, 18 months non-parole commencing 16 February 2013 expiring 15 August 2014 with parole thereafter of 18 months commencing 16 August 2014 expiring 15 February 2015 giving rise to an overall term of imprisonment of three years commencing 16 February 2013 expiring 15 February 2016. Note sentence expired, non-parole period set because it is a standard non-parole period offence.
Count 8, 12 months non-parole commencing 16 August 2013 expiring 15 August 2014 with parole of 12 months commencing 16 August 2014 and expiring 15 August 2015 giving rise to an overall two years from 16 August 2013 expiring 15 August 2015. I note although eligible for release to parole, that is not possible because he is serving another sentence.
Count 9, a four year fixed term commencing 16 February 2014 and expiring 15 February 2016.
For the indictment dated 17 March 2014, counts 1B and 2A, in each case 2 years fixed terms commencing 16 February 2014 expiring 15 February 2016.
Counts 6A and 7A, three year fixed terms commencing 16 February 2016 expiring 15 February 2019.
Count 3, 12 month non-parole period commencing 16 February 2019 expiring 15 February 2020 with parole thereafter of four years commencing 16 February 2020 expiring 15 February 2024 giving rise to an overall term of five years commencing 16 February 2019 and expiring 15 February 2024.
Count 4 12 months non-parole period commencing 16 August 2014 expiring 15 February 2020 with parole thereafter of three years commencing 16 February 2020 expiring 15 February 2023 giving rise to an overall four years commencing 16 February 2019 expiring 15 February 2023.
For counts 3 and 4 I recommend that he be released to parole at the expiration of the non-parole periods and that he be subject to supervision from Probation and Parole including in particular reference to drug and alcohol counselling.
Count 5A, a six month fixed term commencing 16 February 2019 expiring 16 August 2019.
I have taken into account Form 1 offences relevant for all of these matters.

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Decision last updated: 03 April 2018

Medium Neutral Citation:	R v Presdee [2015] NSWDC 429
Hearing dates:	19 November 2013 - 6 December 2013; 20 February 2015
Date of orders:	20 February 2015
Decision date:	20 February 2015
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	Overall non-parole period of 8 years; parole thereafter of 4 years; Overall term of 12 years imprisonment;
Catchwords:	CRIMINAL LAW – Sentence – Robbery armed with offensive weapon – Aggravated Break & Enter & commit serious indictable offence – In company – Specially aggravated Break & Enter with intent – Break & Enter House and Steal value <= $60,000 - Take & drive conveyance without consent of owner – Larceny - Assault with intent to rob armed with offensive weapon – Accessory after the fact – Dispose of property – Theft – Serious indictable offence < = $5000 - Joint Criminal Enterprise – 15 Substantive offences & multiple Form 1 offences – Parity – Combination of pleas of guilty and convictions after judge alone trial – Long criminal record – Drug addiction
Legislation Cited:	Crimes Act 1900; ss 97(1); 112(2); 113(2); 117; 349(2); 350 Crimes (Sentencing Procedure) Act; s 10A
Cases Cited:	R v Henry (1999) 46 NSWLR 346
Category:	Sentence
Parties:	Paul Wayne Presdee The Crown
Representation:	Mr L. Lungo (Crown Prosecutor) Ms J. Gallagher (Counsel for offender)
File Number(s):	2012/52537; 2013/253966