R v Ravet, Shane

[2010] NSWDC 305

CITATION:	R v Ravet, Shane [2010] NSWDC 305
JUDGMENT DATE:	17 December 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	1. Break and enter dwelling- house or building commit serious indictable offence: Convicted. Sentence - non-parole period of 20 months - Balance of term 22 months. I refer the offender to the compulsory Drug Court for assessment of his eligibility and suitability for the Compulsory Drug Treatment Program. 2. Robbery while armed with dangerous weapon: Convicted.- Sentenced -non-parole period of 20 months - Balance of term -20 months and 21 days.
CATCHWORDS:	Criminal Law - Sentence - after trial - Break, Enter and Steal - Form 1 - small businesses located in shopping malls. - Robbery - two femal shop assistants - small takings - submission of no violence rejected - recidivist offender - aged 38years - serious drug abus issues - 16 years out of last 20 years in custody - institutionalised - entrenched within antisocial culture - bleak rehabilitation prospects - referred to compulsory drug treatment program.
CASES CITED:	R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] 1 NSWLR 597 R v Hayes [1984] 1 NSWLR 740 The Queen v Gladue [1999] 1SCR 688 [80]
PARTIES:	Regina Shane John Ravet
FILE NUMBER(S):	2009/049052; 2009/151251
COUNSEL:	Defence: L Fernandez
SOLICITORS:	Crown: Mr C Allison

JUDGMENT

1. Shane John Ravet is a recidivist offender. Defence counsel begins his written submissions:

“By November 2010 Shane Ravet will have spent approximately sixteen and one half years of the last twenty years in custody. His longest periods out of custody have been almost five months in 1995 and almost four and a half months between 2001 and 2002. He had been released from custody for thirty-seven days before coming [back] into custody on these offences on 29 April 2009.”

2. Shane Ravet first appeared in my Court on 18 January 2010 when he pleaded not guilty to the break, enter and steal of the Smokemart Tobacconist Store in the Westfield Mall at Hurstville. After a short trial of three days his jury found him guilty. By the time it came to sentence him his past had caught up with him.

3. On a previous period of release in May 2008 he had committed a robbery of Mimco Clothing Store in Oxford Street, Bondi Junction. DNA that matched the offender’s profile had been left at the crime scene. On 6 October 2009 he had been committed for trial. That trial was ultimately listed for 26 June 2010. His plea of guilty to it was entered, as I understand it, on 11 June 2010. He had however offered to plead three months earlier on 15 March 2010.

4. Shane Ravet asks that when sentenced for the break and enter of the tobacconist shop I take into account a further break enter and steal offence that occurred 28-29 March 2009 with his breaking and entering a store and stealing $245 cash from an SES shop. The Oxford Street, Bondi Junction offence occurred twenty-six days before the tobacconist shop break and enter. It would also appear to have occurred within a fortnight of his release from custody. The 2008 robbery occurred whilst Ravet was on parole for similar offences. Today Shane John Ravet is to be held accountable for his offending behaviour.

5. As sentencing Judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for these offences before this Court committed by this offender, harming numerous victims in this community. The Queen v Gladue [1999] 1SCR 688 [80]. My initial task requires an assessment of the objective criminality of each of the offences before the Court. I will also need to have regard to matters personal to the offender, they are called subjective matters. The starting point for these assessments requires me to make findings of fact from the evidence before the Court relating to the offence and the offender.

6. My fact finding task in respect of the trial matter necessarily requires me to find facts consistent with and reflective of the jury’s verdict. There is no obligation to find facts at either extreme or favourability or unfavourability to the offender.

7. My fact finding task in respect of the robbery is circumscribed, to some extent, in that the parties have tendered an agreed set of facts to which I will return. It is sufficient that I remind this Court that a Judge is not a party to the agreed set of facts; the tender of agreed facts does not relieve a Judge from facts finding responsibility, it simply limits the material from which facts may be found. To the extent if it be the case that the facts as agreed do not reflect the actual events that occurred, it must be remembered the Court can only find facts from evidence placed before it.

8. Before any sentence can be made there are likely to be technical questions relating to deterrence, discount, whether special circumstances are to be found, totality, Form 1 matters, and the ultimate length of the parole and non-parole periods that need to be imposed. None of those things can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against an imperative that all sentencing should have as its primary focus the protection of the community, will also need to be determined. See R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] 1 NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

9. Smokemart Tobacconists: The evidence in support of the Crown case came principally from security CCTV camera footage and the owner of the shop. The CCTV footage showed the offender entering the Mall well before the store had opened. The evidence is that about 6.30am he made his way past several shops until he came to the tobacconist shop. That shop was secured at night by a pull down roller door.

10. The camera shows the offender spending a few minutes in front of the shop; for a period of time he is partly obscured by one of the pillars in the vestibule type area with tables - perhaps it might have been a food mall. The offender appeared at some point to lift the roller door to a position where it was opened to about half or three-quarters of a metre and then entered by passing beneath the bottom rung of the roller door. It appeared that the offender was using some kind of device, perhaps a master key, or perhaps just a device that could apply a bit of force to the lock so that it complied with his desire to open it.

11. Once he passed beneath the partially opened roller door it was pulled down where it remained down for a short period and then he left the way he came in. He left with ten cartons of cigarettes and thirty dollars. My memory was that the value of the cigarettes was not disclosed in evidence. The Crown in submissions puts the value at approximately $900, whether that is calculated on the wholesale, that is the replacement value, or on the retail price (including for instance loss of profit) is not made clear. In any event, the difference is unlikely to impact upon sentence. He sold the cigarettes in the city, used the money to purchase heroin, all of which occurred, it seems, within an hour or so of his taking the goods.

12. The Form 1 matter describes the offence as “did break and enter the store of SES situated at shop 2039 at 500 Oxford Street [Bondi Junction], then did steal $245 in cash”. To that factual scenario the offender added in his evidence that the store had a roller door construction and he squeezed through a gap in the side and that the money he took he used for drugs. There is a submission from defence counsel that the offence “is below the mid range of objective seriousness”, a submission that does not appear to be disputed by the Crown.

13. From the agreed facts I have made the following findings of fact, most of which I have taken from the agreed statement of facts document tendered in this matter.

14. Around 4pm on Thursday 15 May 2008 Johanna Geras and Kerry Ricketts were working at the Mimco Clothing Store at 320C George Street, Sydney. Ricketts was making a phone call in the storeroom at the back of the store. Geras was standing behind the service counter in the public area of the store. At this time Ravet entered the store and walked towards the service counter. He said, “Move the fuck away from the till.”

15. Geras stepped back and put her hands up. She was afraid that she would be hurt by Ravet. She backed away from the service counter and went towards the storeroom. She told Ricketts about the robber. Ricketts moved to the vicinity of the doorway of the storeroom where she saw Ravet trying to force open the cash register. Ricketts was scared so she told the man, “Take what you want.” The offender looked at Ricketts, stepped towards her and said, aggressively, “Get the fuck away, just get the fuck away, get out the back and close the door.”

16. He then returned to continue his efforts to open the cash register. Ricketts closed the storeroom door locking Geras and herself inside. Geras heard the cash register open, Ricketts heard the metal prongs that hold the notes in place flipping up or down. She also heard the sound of coins being moved. Shane Ravel yelled something like, “Is that fucking it?” Ricketts yelled, “That’s it, that’s all we’ve got.” He replied angrily, “Bull fucking shit.”

17. Ricketts used the phone in the storeroom to call Triple-0. She indicated that she was being held up. About a minute after the conversation between Ricketts and the offender Geras heard police sirens. Ricketts heard the sound of high heels in the store. The assistants then opened the storeroom. By this time the offender had fled. A female customer was now in the store. The cash register drawer was closed. Ricketts opened it with a key and saw bank notes and most of the gold coins were gone. Police arrived a short time later. It was calculated that $501 was stolen from the register.

18. In December 2008 police received notification from DAL indicating that DNA collected from the crime scene matched Ravet’s DNA profile. On the afternoon of 29 April 2009 police officers spoke with Ravet at Kings Cross. He was arrested and conveyed to the local police station where he was charged in relation to this matter.

19. I should note that he has been bail refused on one or both of these matters since April 2009.

20. From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in these cases with criminality of offences of a similar kind. It is in this way that what is called the objective seriousness of the criminality of an offence can be evaluated. Objective criminality has an important impact, in fact, the most important impact on the overall sentencing outcome.

21. Break, enter and steal offences should be understood as trespass to property. “Trespass” is an old English word. It appears in the Lord’s Prayer. It is also an old legal term meaning a transgression of the law, which may be committed either to the person (as in the case of robbery) or to property, as in the case of the break and enters. The law regards trespass as an injury in the break and enters to the property committed with violence. The violence may be actual, such as breaking through and damaging, for instance, a smashed window or the lock on a roller door, or implied. The law will imply violence even though none is actually used.

22. It was agreed the offence was not planned. I am satisfied, however, the offender was present at the scene with an intent to commit a break and enter. Indeed, his evidence is he made up his mind to commit this offence and left home, which apparently was fairly near the Mall, five to ten minutes before arriving at the Mall. He brought all of his past skill and experience to the task. His early arrival was to reduce the risk of being caught. His selection of the tobacconist shop was because its roller door offered less difficulty for him than other more secure entry barriers. It is fair to say there is no proof the intent centred upon the tobacconist shop when he entered the Mall. Its selection by him was opportunistic; no human traffic at the time and for him an easy door to force open.

23. There was damage to the premises, but that damage was minimal - I am assuming that it was confined to the roller door. There is no complaint of the premises being left in disarray. The value of the goods and money taken was significant, but not substantial. It was argued there was unlikely to be any encounter with others because of the early hour. I have already noted how that reflects some level of judgment of opportunity. It cannot be a substantial mitigating factor because if he had chosen to break and enter when persons were present that would become an aggravated form of the offence.

24. The offence was on commercial premises. It should be understood that is not a mitigating factor. Losses, repair of damage to property and insurance against losses in commercial activities represents increased costs to honest consumers. The overwhelming bulk of costs and losses occasioned by break, enter and steal in commercial premises is almost invariably passed on to customers.

25. Having said that, the offence represented here falls in the lower spectrum of break and enter upon commercial premises. So far as the Form 1 offence is concerned I am also prepared to find it fell within the lower rungs of the spectrum.

26. The robbery of the Mimco Clothing store is the most serious of these offences. It constitutes a trespass against the person. A robbery is achieved when the offender uses actual force or the threat of force to overpower the will of a victim to such an extent that the victim surrenders against her will property that she is the custodian of. There are in reality three victims of this crime, each of the female shop staff and the owner who lost property. In that sense then robbery is also a property offence. This offence is aggravated in that there are two actual victims to the robbery in that they had to personally deal with the robber, both of whom found the offender intimidating, confronting and aggressive. His language was deliberately “in their face”.

27. A robbery at the workplace is a serious workplace trauma. Many workers who have been robbed have difficulty functioning at work afterwards. Post traumatic stress is a frequent consequence of workplace robbery. Both of these victims recorded they were scared.

28. Defence counsel argued there was no threat of violence against either store assistants. The plea of guilty refutes that submission. Threat of violence is an essential ingredient of the charge. It may be counsel meant there was no threat formulated and uttered in words towards either assistant. While that is true there was clearly no need to do so. Both assistants were clearly and obviously already intimidated by his abrupt, abusive and abrasive tone, words and physical presence.

29. Defence counsel also relied upon the comparatively modest sum stolen. When viewed in the context of the facts, the submission loses some of its potency. Ravet took all of the notes and most of the gold coins; in effect he has cleaned out the store. Then he complains, “Is that fucking it?” and when told it was his reply was, “Bull fucking shit”. A moment’s thought will reflect that that calls into challenge the honest observation of the assistants; it is also a strong expression of dissatisfaction. That combination, challenging the truth, given by two scared persons and the strong expression of dissatisfaction, could only heighten each concern for her own safety and for the safety of her companion in an ongoing way.

30. This offence reflects a substantial level of criminality. I reject the offender’s claim he did not enter the store with the intent to rob. I reject his claim that there was no attendant present when he entered the store, indeed the agreed facts are to the contrary. They make clear Johanna Geras “was standing behind the service counter in the public area of the store” and put the offender’s entry into the store as being “at that time”. That statement has been signed by the offender. I also note the offender’s evidence to “do the store” ten or so minutes before he robbed it.

31. It was submitted the offender was not disguised or wearing gloves, there was no attempt to avoid detection; these are not matters capable of reducing objective criminality, their presence, if they be factors, would only increase the criminality. To suggest, as Mr Fernando did in submissions, that there was no actual violence misconceives the crime of robbery and this particular offence. It is likely a poor choice of words. It would be correct to say there was no use of physical force. Ravet’s evidence is this was the first time he had encountered a look of fear on someone’s face because of his offending. That look must have been a response to violence.

32. Aggravating the seriousness of the robbery offence is that it constituted a breach of the offender’s parole conditions to be of good behaviour. This was in that sense an abuse of his conditional liberty, afforded to him by the sentencing court in setting a balance of term, thereby enabling his earlier release from custody.

33. Exhibit S1 tendered by the defence is a very thorough psychological personality assessment conducted by Rima Nasr, working with LSC Psychology. The offender gave evidence, thereby making himself available for cross-examination on its contents. I have relied heavily upon this report when reviewing his subjective circumstances. By and large I have accepted the account he has given to Ms Nasr as truthful. There is one significant exception which I will come to, I think, under general health.

34. Shane Ravet was born in May 1972. He is aged thirty-eight at sentence and thirty-six at the time of offending. More than eighty-five per cent of his adult life has been in custody, if my maths be correct. He has a younger brother. His parents separated when he was about two, but rekindled from time to time the relationship. The first of those occasions was when he was about six, and then from time to time they would separate and return together.

35. His father is self-employed in a panel beating company, his mother assists with the administration of that business. By twelve he had begun to engage in disruptive behaviour, including a public way by defacing premises. There were some difficulties at school. His parents decided the best course was to send him to reside with his grandmother. Since that period he has only seen his parents on his - I do not know whether it was his twenty-first birthday or when he was twenty-one, a contact forced by his grandmother.

36. His view of his parents is that they were not born to be parents. The opinion of Ms Nasr was that he had disclosed having insecure parental attachments and that he regarded his grandmother as the mother figure for him. The grandmother was on a pension and quite clearly struggled to provide for him and herself. He was uncomfortable with that and would envy his peers’ assets or his peers’ apparent good fortune, and would determine that it was appropriate to commit offences in order to compensate for that.

37. He would appear to be a man of above average intelligence. His primary school was in three different primary schools. It is said that that affected his ability to maintain stable peer relationships. It did not really impact upon his academic performance, which was reportedly above average. At this point in his schooling his behaviour is described as generally defined and disruptive. It would appear to become worse during secondary school.

38. He went to secondary school, I think, somewhere in the east of Sydney. He continued to engage in disruptive and by this time criminal behaviour throughout his secondary schooling, such as involvement in fights, disruptive within the classroom, talk in class and disobey teachers directions. As I will reflect later, much of his adolescent years were spent in juvenile detention. He was engaged with anti-social peers and truanted frequently.

39. During his juvenile detention he completed some TAFE certifications in horticulture, youth work and, later as an adult, in responsible service of alcohol and gambling. He has never been employed. When released from custody he would make attempts to gain employment. Invariably it would be unsuccessful and he would quickly return to the criminal lifestyle. Most of his associates it seems outside the gaol were of the criminal milieu.

40. He is motivated to engage in a works release program whilst in custody and has expressed interest in working in the mines upon release, where he believes he is likely to be trained, develop a routine and structure into a lifestyle. Of course in the mines he would be tested frequently, if not daily, for the presence of illicit drugs. Nobody is going down a mine who is unsafe to work with.

41. He has enjoyed good health. He told Ms Nasr in July 2009 that nine months previously he had been assaulted by a prison officer following a verbal altercation, subsequently losing consciousness for a brief period. He claims hospitalisation, receipt of medical attention to the point of having a metal plate inserted into the right side of his eye as a result. Since that assault he says he has experienced migraines and has been medicated with Imigran. If that is correct it should, I would have thought, been reflected in his custodial movements in 2008. So far as I can see in his custodial history, his custodial movements from 2007 to 2009 do not reflect any disciplinary matter or custodial transfer to hospital that would reflect the history given to Ms Nasr. I can make no finding one way or the other as to whether this occurred. It just seems too bold a matter--

OFFENDER: I was in Westmead Hospital for three days.

HIS HONOUR: It does not reflect on your custodial history, so I make no finding one way or the other. The claim is too bold a claim to, on its face, be untrue, and yet the custodial history should reflect a period in hospital and as I read the custodial history it does not.

42. He first experimented with alcohol around the age of fifteen. He says he only drinks socially and that he is not much of a drinker, and it would seem that alcohol is not an addiction problem for him.

43. Cannabis use began at the age of thirteen years by way of experimentation, he says. From the age of fifteen, he was using the drug one or two times a year and had rejected it as a drug of choice. He moved to amphetamines on a social basis from the age of sixteen. He was using this substance for a period of about six months and then came to heroin which in turn became his drug of choice.

44. He has been using heroin solidly when available since the age of sixteen. There was a one year binge pattern until the age of seventeen and custody. When he returned to the community, he would relapse using the drug on a daily basis. He was heavily dependant upon it, and would experience significant withdrawal symptoms whenever he returned to custody. These included an inability to sleep, paranoid thoughts, and physical aches. He took up methadone, buprenorphine and naltrexone with a view to confronting his heroin addiction. That was used intermittently for six months but he ceased using methadone following a decision to abstain from all substances. His current position is that he is not using illicit substances while in custody.

45. I note that on 11 March 2010, he was before the disciplinary authorities in the gaol for possessing drug implements and given five days in his cell. He began using cocaine on a daily basis from the age of eighteen. His use of it was seriously problematic, he claimed it would cost him $1,000 per day and he would engage in crimes such as theft in order to maintain his substance dependence. The offences that I am dealing with may well be the tip of the iceberg of offending that was done to maintain a habit of that dimension.

46. In custody, he has detoxed, completed the SMART recovery program, an alcohol and treatment program, a relapse prevention program, and has pursued individual drug and alcohol counselling. He says to his counsel that he is interested in engaging with a compulsory drug treatment program and a theme of Mr Fernandez’ sentencing submissions was a submission that the sentence should be structured to accommodate that proposal.

47. He alleges that he was the victim of a sexual assault as a result of being placed in juvenile detention when a male youth worker apparently made him engage in oral sex on two occasions. He says that resulted in his absconding from the Juvenile Justice facility, an absconding from juvenile justice facility certainly appears on his record and it may well be that that was the motive for it. I mention that under mental health issues because if it is so, it was obviously something that is still stressing him out. It may account for some of his turning to drugs and it is something that ought to be dealt with through counselling.

48. He claims again a diagnosis of Attention Deficit Disorder at about the age of twenty. Ms Nasr notes that such symptoms may also have been a function of his dysfunctional upbringing and lack of parental support. He is experiencing a depressed mood since being placed in custody. He referred to a psychological report done in about 2005 which canvassed a possible diagnosis of bipolar disorder. So far as Ms Nasr could discern, she did not discern a history consistent with bipolar disorder when she spoke to him.

49. She regards him as engaging in self-defeating thinking, lacking motivation, pursuing an anti-social lifestyle, describing himself as a loser and significantly she describes him as realising that he has been institutionalised. She tested him and on his testing profile she noted that the results were indicative of having an entrenched anti-social personality characteristics, a common symptom being commonly involved in criminal activity, impulsivity, struggling to form meaningful relationships, exploiting others to meet his own needs, manipulating others, lacking empathy and failing to consider victim’s circumstances.

50. She noted characteristics of a passive aggressive personality which would include symptoms such as oppositional behaviour, negative thinking, tendency to be hostile or angry followed by feelings of shame and guilt and she thinks those passive aggressive tendencies may have resulted from his dysfunctional upbringing. Her final observation of him in her professional opinion was that he was a man who has been institutionalised.

51. Insofar as character issues are concerned, again I come back to Ms Nasr’s report. She formulates what she observed his presentation as a thirty-eight year old man having a lengthy criminal history involving offences similar to his current charges. Offending being all he knows and all he is familiar with, engaging in a criminal lifestyle since the age of fourteen, she regards his offending behaviour as generally impulsive having little regard for his victims and in that she said so far as the last matter was concerned, he claims that until his current offence, he had not considered the consequences of his behaviour to his victims.

52. She regards him as entrenched within an antisocial subculture, that he has remained institutionalised throughout most of his adolescence and adulthood, that he is an immature man for his age and has developed multiple dependencies over the years, including illicit drugs as a teenager. She did note a proposition, with which I disagree, that he had not presented any symptoms of dependency upon gambling. I simply note in that regard, that his claim to motivation for committing the robbery of the store in 2008, was that he had been on the poker machines all that morning.

53. His children’s history dates from 1987 until 1990. There are ten appearances in the Children’s Court between those years. Of those ten appearances, I think nine of them resulted in him being confined to juvenile custody. His adult criminal record dates from July of 1990. Since then, he has been before the courts on forty-three different occasions. Principally for offences of dishonesty, including stealing, receiving, possessing implements, unlawful entry, break enter and steal, goods in custody, enter enclosed lands, break and enter with intent and robbery in company. There are other non-stealing matters, two of which are a little troublesome. Wilful and obscene exposure suggesting strong antisocial urges, escape lawful custody, common assault and minor drug charges. They relate, of course, to his own personal use.

54. Most of his offending has been dealt with in the local court. Putting District Court appeals to one side, this is his fifth presentation before the court on indictable offending. In 1998 he was before the court for robbery in company times two and escape lawful custody times two. In 2001 he was before the court for break enter and steal times two. In February 2003 for break enter and steal and in April of 2003 for accessory after the fact to armed robbery. His last appearance before the District Court appears to have been in June 2006 for break enter with intent to steal and break enter and steal.

55. He appears to have breached parole on two prior occasions. There are more than four dozen adverse disciplinary findings made against him during his custodial period for drug matters, threatening behaviour, intimidation, disobeying directions, unauthorised property, abusive language and assaults.

56. This offender’s rehabilitation prospects are bleak. He has become institutionalised within a system that is contra-indicated for rehabilitation. Recidivism rates and parole breach rates are solid evidence that whatever other purpose incarceration serves, rehabilitation is not one of them. In our criminal justice system, protection of the community via incarceration, is only a short term solution. This offender is a regrettable and perhaps extreme example of only offering short term protection through incarceration. He has no family supports. If he has any community based support, it is likely to be among either the anti-social milieu or the drug culture or some blending of both.

57. He comes back to the community with no work history since his teenage years. No real vocational skills, a history of drug abuse. His only history of abstinence is in a paramilitary single sex extremely structured and inhibiting environment. He has a long history of persistent failure in reintegrating into the community. His post release plans are, to the extent that they exist, pipe dreams. There is no well thought through post release plans and no anticipated post release structure. There is claimed insight into his offending, however one must remember that the robbery committed in 2008 is followed by a breaking and entering into the clothing shop at Bondi, his contrition in respect of these two offences can also be evaluated as poor when he is committing the very same offence a month later at a clothing shop in George Street.

58. There is nothing that convinces me he would not stoop to the same conduct again for a quick $300. One of the strongest predictors of future behaviour is immediate past behaviour. In this case the offender’s criminal history shows that in the community he quickly turns to crime. Regrettably, his custodial history also demonstrates he has difficulty complying even in the highly structured paramilitary custodial system. If he is to be rehabilitated, he must spend a considerable time and effort in a well-supervised, no-nonsense environment. I do not mean to denigrate the courses he has done in custody, but they are completed within a matter of hours rather than months.

59. Given his entrenched drug use and entrenched criminal lifestyle, something more substantial than that is required. Ideally this would be the compulsory drug treatment program at Parklea. I do however have real concerns as to the offender’s eligibility. He has two escape custody’s on his records and I understand that qualifies him for a special classification which in turn, may disqualify him for entry into the compulsory drug treatment program.

60. It would be in his interests if those oversighting his parole required him in the event that he is ineligible for the compulsory drug treatment program, to enter a full-time rehabilitation program of nine or twelve months linking his attendance to it, as a fundamental condition of his parole and upon his release, require as a further condition of his parole, a high level of parole supervision that includes urine testing for illicit drug consumption.

61. In any event, the compulsory drug treatment program is by far and away the preferred option because not only is he subject to continual urine testing even when he is in the community, it is a program that encourages him to find employment in the community, something he has hitherto for not been able to achieve.

62. General deterrence. A close examination of this case would suggest to an astute observer that repeated incarceration may well be futile in deterring offenders who are institutionalised where upon release there is a stronger likelihood such an offender may pursue criminal conduct shortly after release for the purpose of being returned to the prison environment. To give weight to general deterrence for such a prisoner, in such circumstances, would be seen as only to exacerbate the likelihood of, and increase the potential for, more serious offending by that offender who would in the course of being returned to custody, become more institutionalised.

63. The purposes of sentencing that need most focus in this case are punishment, denunciation and if at all possible, rehabilitation. Should rehabilitation be completely accomplished, the community is completely protected from the offender. Even if only partial rehabilitation is accomplished, that may see the offender stay out of serious trouble. Incarceration is appropriate in sentences where other sentencing options are inappropriate. Given this offender’s very substantial re-offending, he is unable to claim leniency. In his case the seriousness of his offending is increased by the commission of the robbery offence whilst on parole. The offences themselves usually merit incarceration.

64. In all of the circumstances, punishment must be a significant driver of the sentences I must impose. That punishment must be at a level of the highest known to the law, namely full-time incarceration.

65. The offender offered to plead guilty to the robbery charge in March of 2010. As I noted earlier, he was arraigned in June and entered the plea. It was well known before June there would be no trial required. There is in those circumstances, considerable utilitarian value in his so doing. The defence seeks and the Crown does not dispute, a discount of fifteen percent on the sentence I would otherwise have set. I make clear the sentence I would have set for this offence is one of four years imprisonment. That will be discounted by fifteen percent which amounts to a reduction of seven months and one week. Thus the overall sentence for the robbery, assuming my maths to be correct, will be three years four months and three weeks.

66. The sentence for the break, enter and steal- the trial matter. The offender asks that I take the Form 1 matter into account when I sentence him for this break enter and steal. That will have the effect of driving upwards the sentence I set for this offence. Although each offence is in its own right less serious than a robbery, when sentencing for the indicted matter and taking into account the Form 1 matter, the overall sentence will be one of three and one-half years.

67. The offender has been in custody since 29 April 2009. The first sentence to be served will date from that date.

68. Mr Fernandez has argued that I should find special circumstances. He argues there are two matters that can comprise special circumstances:

“Firstly the offender is a long term offender and requires special assistance for his return to the community. The offender has difficulty in establishing himself in the community. This emphasises his need for supervision and case management. As Ms Nasr states at [47] ‘Upon his release he will require direct case management and supervision to help him transition into the community. Mr Ravet seems to have begun the process of maturation albeit later than expected. This is positive and will need to be supported in a structured fashion.’

The offender will need intensive supervision in the community upon his release. He will benefit from engaging in employment upon his release from custody. Secondly, the potential accumulation of sentences may be a basis for finding special circumstances. Citations omitted.”

69. I accept these submissions, the Crown did not argue against such a finding.

70. The two offences for sentences are eleven months apart. The first was committed whilst on parole. In those circumstances, there must be a substantial accumulation.

71. Shane John Ravet you are convicted that you on 15 May at Sydney in the State of New South Wales did rob Johanna Geras of $500 in cash. For that offence you are sentenced to a minimum term of twenty months non-parole to date from 29 April 2009 and, assuming my maths is correct, to expire on 28 December this year. The balance of term will expire on 18 September 2012.

72. You are also convicted that you on 24 April at Hurstville broke and entered Smoke Mart and Gift Box Store at Shop 125 Westfield Shoppingtown, Park Road and committed a serious indictable offence, namely larceny.

73. I take into account the Form 1 matter as I have indicated. For that you will be sentenced to a minimum term of twenty months to date from today’s date, 17 December 2010 and to expire on 16 August 2012. There is a balance of term to expire on 15 April 2014. Thank you have a seat.

74. I order that the remarks on sentence be taken out. I refer the two matters that I have just sentenced the offender on to the Drug Court for assessment of his eligibility and suitability to the Drug Court. I also order that these remarks be taken out and sent to the Classification Committee for consideration of appropriate special needs programs required for this offender in the event that the compulsory drug treatment program does not accept him, including consideration of releasing him on some kind of licence into a full time rehabilitation centre as a condition of the licence.

Any other order?

oOo