R v Robertson

Case

[2022] ACTSC 34


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Robertson

Citation:

[2022] ACTSC 34

Hearing Date:

3 March 2022

DecisionDate:

3 March 2022

Before:

Norrish AJ

Decision:

See [62]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft – common assault – lengthy criminal history – parity with co‑offender – delay in sentencing – low level of objective seriousness – matters otherwise dealt with summarily – convictions recorded – sentences of imprisonment imposed – no action in relation to breaches of good behaviour orders

Legislation Cited:

Crimes (Sentencing) Act2005 (ACT), ss 7, 33

Crimes Act 1900 (ACT), s 26

Criminal Code 2002 (ACT) ss 45A, 308

Cases Cited:

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

Green v The Queen [2011] HCA 49; 244 CLR 462
Jimmy v The Queen [2010] NSWCCA 60; 77 NSWLR 540
Munda v Western Australia [2013] HCA 38; 249 CLR 600
R v Engert (1995) 84 A Crim R 67
R v Fuller-Cust [2002] VSCA 168; 6 VR 496
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Holder [1983] 3 NSWLR 245
R v Massey (No 3) [2021] ACTSC 156
R v Todd [1982] 2 NSWLR 517
R v Veen (No 2) (1988) 164 CLR 465

R v Williams-Savage [2021] ACTSC 271

Parties:

The Queen (Crown)

Peter James Robertson (Offender)

Representation:

Counsel

D Swan (Crown)

D Berents (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Boxall Legal (Offender)

File Numbers:

SCC 56 of 2021; SCC 249 of 2021

NORRISH AJ:

  1. The offender, Peter James Robertson, appears today for sentence in relation to two offences. The principal offence is an offence of theft. This is an offence brought pursuant to s 308 of the Criminal Code 2002 (ACT) (the Code), by virtue of s 45A of the Code, I am informed. In this court, it carries a maximum penalty of 10 years’ imprisonment and/or a fine of $160,000. However, it would appear to me to be agreed that, but for various reasons that have been explained from the bar table, if dealt with promptly, the matter would have been dealt with in the Magistrates Court.

  1. The second offence is called a ‘transferred offence’, which I understand to be an offence transferred to this jurisdiction, ordinarily to be dealt with in the Magistrates Court. This is an offence of common assault. It is an offence related to and, in fact, intimately connected to the facts of the theft. Common assault, pursuant to s 26 of the Crimes Act 1900 (ACT), carries a maximum penalty of two years’ imprisonment. The offender has been in custody for a period of time unrelated to the specific matters with which I am concerned. It has not been submitted that there is any time in custody that I should take into account previously served directly related to this matter.

  1. But notwithstanding the fact the offender is subject to various sentencing orders that require him to be considered for release to parole in May 2022, in the context of consideration of the principles relating to totality of sentencing, I am proposing that the modest sentence I am imposing upon him will be partly concurrent but partly accumulative upon the current non-parole period. The minimum period of time he will spend in custody will be extended by almost a month.

  1. If he does not do that then he can serve the full period of six months that I propose for the theft. In the context of the principles I have to apply in relation to this case – and I will come back to the facts of it shortly – there is one particular matter of great significance that I have to bear in mind. 

  1. That is this, that there was a co-offender, a woman who was an accomplice of the offender. She is shown in the CCTV footage that I have been shown of the commission of the offence. The CCTV footage being of the offender stealing the property from the supermarket, placing it in a bag and carrying it out of the store.

  1. She was sentenced in conjunction with a number of other offences to four months' imprisonment in respect of her involvement in the commission of this crime, which was a sentence imposed concurrent with, it would appear, other sentences of imprisonment fixed by the court and I need not dwell upon.

  1. The issue of parity obviously arises as is fairly said by learned counsel for the offender who skilfully represents his interests. But, of course, the fact that the offender is charged with the same offence, or is involved in the same criminality, does not necessarily mean that both offenders should receive the same sentences. There are a number of reasons for this. 

  1. There are differences between their respective criminal histories. Even though the woman has a lengthy criminal history, it is nowhere near as serious as the criminal history of this particular offender. Then, of course, there are the differing roles of the two offenders in the commission of the offence that have to be borne in mind. It would seem to me, based upon the CCTV footage that although the female was involved in a joint criminal enterprise, so to speak, she played the role of a lookout and it was entirely the choice of this offender as to what property was stolen. Bearing in mind, he is the person who loaded the goods into the carry bag, or the suitcase, if it can be called that, that he brought into the store. 

  1. The issue of parity of sentencing has been considered in a range of decisions. It is an aspect of equal justice. It has been discussed in decisions such as Green v The Queen [2011] HCA 49; 244 CLR 462 where their Honours noted that it was an aspect of ‘equal justice’.

  1. Equal justice has been discussed in the context of parity principles in a range of other discussions. I particularly note the decision of Jimmy v The Queen [2010] NSWCCA 60; 77 NSWLR 540, a decision of the NSW Court of Criminal Appeal. In that particular judgment Rothman J in discussing the concept of ‘equal justice’ and particularly what he described as the ‘Aristotelian principle of equality’ noted that parity of sentencing reflected that principle as being ‘alike shall be treated alike and the unlike will be treated unlike to the extent of their unlikeness on a rational basis’.

  1. The sentence imposed upon the co-offender is relevant in this matter and acts as a restraint, if I might use that expression, upon what might have otherwise been the sentence had this offender stood alone in relation to that particular offending.  Particularly having regard to his criminal history. 

  1. There is one other aspect of the matter by reference to the helpful written submissions of learned counsel for the offender, and that is the relevance of Bugmy principles in this context. The offender is a First Nation's person. I have a range of detail about his upbringing and I am prepared to accept, as his criminal history I think eloquently reveals and his use of drugs eloquently reveals, a history of some depravation which, no doubt, has contributed to the course of extensive offending in which he has been involved over many years.

  1. Of course, he is a mature person now and he has a criminal history in New South Wales (NSW) and other places going back to the 1990s. I will ignore his Childrens Court criminal history. For the purposes of this sentencing exercise it does not seem really to be of any significance when one has regard to the many convictions he has in NSW, Victoria, South Australia, and the Australian Capital Territory (ACT) as an adult. 

  1. He was born in 1977. On my calculation, that means he is now 44 years of age. He is a mature man who has appeared in court many times and would appear to have been given many opportunities, although, it must be fairly said, many of the orders made upon him have been punitive orders involving terms of imprisonment, some of considerable significance. On a number of occasions, there have been findings, for example, in NSW of ‘special circumstances’ reflecting some of the matters that I am required to have regard in this particular matter. 

  1. His counsel referred me to Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy). I bear in mind what the majority of the High Court said at [40]-[44]. In Bugmy, the High Court concluded that an Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate the offender’s sentence. In Bugmy, of course, their Honours went on to say that the effects on a particular individual of deprivation of opportunity and the like remained with an offender throughout their life, and full weight should be given to them, notwithstanding their criminal history.

  1. In Munda v Western Australia [2013] HCA 38; 249 CLR 600, a decision handed down by the High Court on the very same day as Bugmy in October 2013, the majority of the High Court adopted what Eames JA had said in the decision of R v Fuller-Cust [2002] VSCA 168; 6 VR 496, particularly at [80], that regard to a person’s Aboriginality, as I have regard in this particular matter, seeks to ensure that a factor relevant to sentencing that arises from that person’s Aboriginality is not:

…overlooked by a simplistic assumption that equal treatment of offenders means that differences in their individual circumstances related to their race should be ignored.

  1. Such is the case here. In regard to that aspect of the matter and, of course, what has been observed by the High Court in a case decided on the same day of Bugmy, it should be also pointed out that whilst their Honours observed at [44] that:

…because the effects of profound childhood deprivation did not diminish with the passage of time and repeated offending it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision.

Their Honours also went on to point out, as had been pointed out by Gleeson CJ in the decision of R v Engert (1995) 84 A Crim R 67, that whilst there may be matters relevant for sentencing exercise that may give rise to less weight to general deterrence, the circumstances of an individual offender, even arising out of deprivation and the like, may give rise to consideration of matter relevant to specific deterrence. In fact, this is effectively what occurred in the decision of R v Veen (No 2) (1988) 164 CLR 465.

  1. That having been said, these matters are not, at the end of the day, significant in this sentencing exercise, having regard to the character of the offending and the appropriate sentence for the offending with which I am concerned. Because, as was pointed out at the outset of the proceedings, both by learned counsel for the offender and in my observation of the matter in discussion with him, the starting point in this sentencing exercise is the character of the offending and the objective seriousness of it.

  1. I have already said I have taken into account that it is a matter that could have been dealt with summarily and would have been dealt with summarily as I understand it but for circumstances which I accept were not the fault of the offender, even though he was in custody in Victoria for a part of the period of time since these offences were committed. 

  1. I cannot blame him for the delay in the prosecution. At the same time, I do not blame the prosecution because they had no control over the matter and it is highly unlikely given the character of this offending they would go to the trouble of extraditing him from Victoria. 

  1. The truth of the matter is that the offending is at a low level of offending of the type contemplated by the provision. An offence of theft could involve the theft of hundreds of thousands of dollars of jewellery and other items worth a considerable amount of money, even more than that figure that I have just quoted. And here, of course, the theft was concerned with the theft of, what I understand to be, from the particulars in annexure A of the facts, baby formula, liver detox tablets, vitamin tablets for children and adults and fish oil. Items that were specifically chosen by the offender judging from the CCTV footage and taken from the store amounting to a total of just over $1,000 in expense to the owner of the property.

  1. The total value of the property stolen is said to be $1,039.20. Whether that is a wholesale figure or a retail figure I am not informed. The offender and the co-offender were pursued by a gentleman, a store assistant manager and the assault arises out of the offender moving towards the victim and stating, “I'm going to knife you, you fucking cunt”, pulling his left hand from the left pocket of his shorts. 

  1. There is a still image of the offender removing his hand from his shorts but I cannot be satisfied beyond a reasonable doubt that a weapon was actually presented or was in the possession of the offender. Although, the victim does give evidence of seeing an item as a “flash” with a “silvery glint”, the facts of the matter are though that the offender did not physically touch the victim.

  1. In sentencing the offender for the assault, I bear in mind it was intimately bound up in the circumstances of the removal of the property and the attempt of the offender to have the store employee desist from following him. In fairness to the offender, however, I cannot be satisfied beyond reasonable doubt that the offender was aware that the person was necessarily an employee of the store.

  1. Whether he had some distinctive clothing that allowed that to be seen clearly, I do not know, but I am not satisfied that it would necessarily have registered with the offender even if that was the case. I am prepared to accept in the context of the offender's criminal history that – and some other history available from the pre-sentence report    – that the offender was a person at the relevant time as was his partner, using drugs.  The extent to which he was affected by drugs on the day of the offence I am unable to say.

  1. He committed the offence in my view with some premeditation. He obviously did that because he took a bag into the store for the purposes of removing property. But it is not sophisticated planning and even though the CCTV footage reveals him reacting with considerable purpose, whether he was affected by drugs and the extent to which he was affected it is not possible to say. 

  1. So far as his personal circumstances are concerned, as I said, I have a pre-sentence report from ACT Corrective Services. An officer of ACT Corrective Services has set out some detail of his background. He has a cultural relationship with his father's country in Port Augusta, although he was born in NSW and his criminal history reflects a close association with NSW and the ACT. He had early experience of being placed in juvenile detention and no doubt this has had an effect upon him in terms of his subsequent conduct.

  1. It certainly would appear not to have improved his attitude. Particularly his conduct as it is reflected in his criminal history. The evidence of his disadvantage is reflected in a range of ways not just solely by reason of his Aboriginality. It is just not the case that all Aboriginal people have deprived backgrounds, quite the contrary, but he comes from a large family and has little contact with his father. He was subject to physical and sexual abuse and was an observer of that in growing up.

  1. He himself, however, has had 15 children according to the history provided to the ACT Corrective Services officer, 12 from three previous relationships and six-month-old triplets, who apparently he has not yet met, to his current partner. Three of his children have sadly passed away in accidents in 2008, 2017 and 2018. Eight of his children are in the care of their eldest brother who resides with his family in Canberra, although the offender says that he has a positive relationship with his children.

  1. He was living in Victoria for a period of time after the offending with which I am concerned and in that regard, I point out, of course, that the offence with which I am concerned was committed on 10 March 2018 and the offender was not formally charged in relation to the matter until well after he had completed sentences of imprisonment in Victoria for offences that were committed during the intervening years. He has had limited employment history as his criminal history would suggest but he has had some involvement in a motor mechanic apprenticeship and has skills in motor mechanics, panel beating and spray painting.

  1. He has worked in the construction industry. He was on Centrelink benefits at the time of the offending. He has been using illicit substances since he was 11 years of age on his own account, and he used heroin he said up until December 2018. He does take methadone whilst in custody at the present time. He advised the reporter for ACT Corrective Services that he had never attempted rehabilitation to address his substance abuse issues and used drugs to block out past traumas in his life. The reporter claimed that the offender had, whilst in custody, “refused to participate in alcohol and drug programs and had chosen not to be referred to rehabilitation facilities upon exit”.

  1. The offender has told me here in court, he has interrupted the proceedings from time to time, that there are very few drug rehabilitation programs within the corrective institution where he is at the present time in the ACT and of the five programs that are available he has undertaken four. Where the truth of that matter lies I do not know. But he has made it very clear to me, whether this is true or not I cannot say and I will not hold it against him, that he is not interested in being released to parole when that parole period arises in May or June of this year.

  1. There is no evidence of mental health issues directly before the court. He has given a history to the ACT Corrective Services officer of treatment for depression, a claim of “split personality” and receiving depot injections for “bipolar disorder”. The officer assessed his current mental state as stable. On his induction into custody in December 2020, custodial mental health records indicated no evidence of major mental illness and in June 2021 it is reported that a psychiatrist assessment reported no evidence of psychotic or affective disorder.

  1. It is noted in the report that whilst in custody the offender had completed the “Thrive” program which was a program that includes strategies for dealing with stress and anxiety. He said in relation to the offending that he was under the influence of illicit substances at the time of the offences and blamed his drug use for his offending. He expressed regret for his actions but was unable to verbalise a level of victim empathy.  With regard to his future, the reporter assessed him at a “high risk” of generally re‑offending.

  1. His primary risks were his substance abuse, “antisocial values and attitudes”. But it was thought that he would benefit from supervision and appropriate interventions and I am prepared to accept that that is so. No person is without hope. Certainly, I am not suggesting for a moment that the offender presents himself as a hopeless person or a person who might be categorised as one of the more hopeless people that might come before a court.

  1. That is, when I say “hopeless”, a person not deserving of some consideration of his rehabilitative prospects. But it must be said his criminal history speaks of limited prospects of rehabilitation unless there is a considerable change in attitude. And it is suggested in the report from ACT Corrective Services that he should undergo ongoing engagement for substance abuse intervention and relapse prevention and also involving himself in programs to address prosocial change and attitudes towards offending.

  1. With regard to his criminal history, it has to be understood in the context of his social upbringing and his background of disadvantage but it must also be said that it is a very lengthy criminal history, particularly in NSW, but with quite a number of findings of guilt in the ACT and more recently in Victoria with some findings of guilt in South Australia.

  1. I note in relation to his most recent sentencing in the ACT, which is pertinent to the exercise I undertake, that he is currently serving in reality a total sentence of two years' imprisonment with a non-parole period of 17 months. Those various sentences were ordered to commence on 18 December 2020. He was sentenced in relation to, on my count, 10 offences. Two offences of obtaining property by deception, one knowingly concerned in theft, two counts of theft, one count of attempted burglary and one count of dangerous furious or reckless driving and driving or riding in a vehicle without the consent of the owner and failing to stop at the request of the police. For some of those offences, at least six of them, he was sentenced to two years' imprisonment.

  1. Other sentences were imposed. For the offence of attempted burglary, he was sentenced to 12 months' imprisonment. For the offence of being knowingly concerned with theft, six months' imprisonment. All of those sentences were concurrent with one another. As I said, the learned Magistrate commencing the sentences when the penalties were imposed in the Magistrates Court on 18 December 2020 fixed a non‑parole period of 17 months’, which will expire on 17 May 2022. 

  1. His counsel conceded in the context of discussing the issue of totality of criminality in light of other matters, such as the relevance of the penalty imposed on the co-offender and having regard to the fact the matter could not be dealt with in the Magistrates Court (that is the theft matter that I am dealing with) because of the delay in the matter coming before the court. 

  1. Although the sentences that I impose ought not necessarily be entirely concurrent with the sentences imposed in the Magistrates Court, consistent with totality principles that I have discussed earlier, such as those laid down in cases such as R v Holder [1983] 3 NSWLR 245, there should be a degree of concurrency with the sentences imposed in the Magistrates Court and the sentences I impose should not entirely be cumulative.

  1. I agree with that submission. It might be open to me on one view to impose sentences that were accumulative upon the non-parole period fixed by the Magistrate. But there were other considerations to bear in mind including the unfortunate path of the matters to this court through no fault of the prosecution and no fault of the offender.

  1. I bear in mind, I hasten to say, that in respect of the various matters dealt with in the Magistrates Court, and I have checked this from the criminal history, the dates of a number of the offences included 27 October 2017, 16 February 2018, 24 February 2018 and 18 December 2020.

  1. I do not have the facts of all those matters but it is clear from a close reading of the criminal history that the offender was arrested on 18 December 2020 in relation to what I have described as the ‘driving offences’, the dangerous or furious driving offence and the failure to stop offence, and was in custody from that date. Hence the sentence imposed by the learned Magistrate. But on that occasion when he was arrested, it then came to pass that the other matters with which he was concerned when he was sentenced in the Magistrates Court in May 2021 were brought together.

  1. The circumstances of him being charged in relation to the current matters have been outlined in some detail by the learned Crown prosecutor and counsel for the offender. I do not need to reiterate them. But it is clear that the course of the current matters then followed upon his arrest on 18 December 2020. The period of time, of course, between the offending in 2018 and his arrest on 18 December 2020 was, in part, filled in with offending in Victoria reflected in the criminal history.

  1. Between late 2018 and early 2019 there are at least 14 offences committed in that period of time. A number of which are crimes of dishonesty which ultimately, after an appeal to the County Court, he was sentenced to an aggregate sentence of up to 16 months giving credit to the time then already spent in custody. The learned Magistrate in the Magistrates Court in Victoria had initially fixed, as I would understand it, an aggregate sentence of 18 months which was reduced.

  1. It was after the expiry of those sentences that the offender returned to the ACT to be ultimately arrested on 18 December 2020. I go through the detail of that history in part to address one of the matters specifically raised by learned counsel for the offender about the effect of delay as it may be considered in this sentencing exercise. 

  1. Counsel for the offender referred me to the NSW decision of R v Todd [1982] 2 NSWLR 517 (Todd). A decision from the late 1970s but not reported in NSW reports until the early 1980s. It is a decision of Street CJ. The issue in Todd was that Todd had committed crimes either side of the Queensland and NSW border. Todd spent quite a number of years in a Queensland jail and then was brought to NSW to be sentenced for other offences of like nature for which he had been sentenced in Queensland – committed at about the time of the offences in Queensland.

  1. Quite properly, the court said that the delay in sentencing him in NSW was a relevant matter to take into account particularly in the context of evidence of the progress of his rehabilitation. It is the fact that if there is a delay in someone coming before a court, that delay can be taken into account in favour of the offender. Particularly, in the context of understanding the disadvantage the offender had by reason of the interstateness of other sentences and the fact that the evidence of delay reflected the progress of a person's rehabilitation.

  1. You have these cases, from time to time, where people are arrested 20 years after a crime for which they were initially charged after “jumped” bail that have demonstrated over 20 years of lawful means of living that is highly relevant to fixing an appropriate sentence long after the crime has been committed. Unfortunately, in this particular case, noting the matters in favour of the offender by reference to his upbringing and background, the period of time during which this delay has occurred that has been referred to by counsel for the offender has not reflected a progress of rehabilitation.

  1. Quite the contrary, it has reflected the fact that the offender, whilst at large, has taken the opportunity to commit further offences as the Victorian and the ACT records make clear. As I said, however, of course, these matters have to be seen in the context of the reality of the situation currently before the court. That is the objective seriousness of the offending with which I am concerned and the other matters to which I have referred.

  1. Counsel for the offender noted the relevance of the offender’s background of drug usage and I take it into account. He says that it is relevant in the sense of R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (Henry). Counsel for the offender referred me to Wood J's judgment particularly at [273] of the judgment where his Honour pointed out that whilst drug use or addiction is not a mitigating factor in sentencing for armed robbery, a person's use of drugs may still be relevant in the sentencing exercise in a range of ways particularly if the involvement in drug usage is through no fault of the offender. It may be relevant in the assessment of the offender's prospects of rehabilitation. It may be relevant to understand the circumstances in which the offending the subject of the litigation may be considered, for example whether there are some aggravating circumstances present in the offending, such is not the case here. 

  1. In sentencing the offender I am required, as is clear, to have regard to s 7 of the Crimes (Sentencing) Act2005 (ACT) (Sentencing Act). There are set out there the various purposes of sentencing. Each of these matters are required to be considered in this case but particularly, I am required to have regard to the requirements of deterrence, subject to what I have earlier said, but also to consider the promotion of the offender's rehabilitation.

  1. I am also required, of course, to make him accountable for his offending.  Again, all these matters are to be considered by regard to the objective gravity of the offending with which I am concerned. If I was sentencing this offender or any offender for far more serious offences, the issues of accountability, recognition of the harm of the victim, would all be matters of greater weight in the sentencing exercise. The Crown helpfully assisted the court, both orally and in writing, in relation to a range of matters.  One of the issues, of course, with which I was concerned was the issue of the discount.

  1. I have already indicated I am prepared to give the offender a discount of 25 percent upon the otherwise appropriate sentence having regard to everything that has been said.  Ultimately having regard to the objective seriousness of the offending, it is not a matter of great significance in the outcome. I am prepared to provide the offender with an opportunity of release on a good behaviour order to promote his rehabilitation but also to try and ensure that he has some period of supervision to assist him if, in fact, he is interested in seeking that assistance.

  1. Whether he is interested or not is a matter for him.  He has told me in court when I explained the orders to him that he was not concerned to be released to parole.  Whether he, in future, will change his mind in relation to that matter I do not know. But I am not prepared to deny him an opportunity for release to supervision simply because he claims at this stage that he does not wish to engage in early release. 

  1. I have noted, for the purposes of sentencing, that these offences were committed while subject to conditional liberty.  I have taken that into account relevantly.  However, in the circumstances of the matter, there is no requirement for me to take any action in relation to any conditional liberty orders in place at the time of the offending given the time that it has elapsed since the commission of the offences with which I am concerned.

  1. I propose not to take any action in respect of the breach of those orders on the invitation of the Crown. The Crown has also very helpfully provided me with some purportedly comparative sentencing orders and I am mindful of the fact that s 33(1)(za) of the Sentencing Act in the ACT requires current sentencing practice to be taken into account.  The two judgments cited by the learned Crown prosecutor provides some guidance but also there are distinctions to be made in every case one from the other.

  1. I note in relation to the matter of R v Massey (No 3) [2021] ACTSC 156, whilst the matter was one where there was an early plea at the Magistrates Court, the term of imprisonment of nine months was wholly suspended and the offender was involved in the theft of property of a value over twice the value of the property with which I am concerned. He was a much younger person, but he did have a substantial criminal history.

  1. There is another decision of Mossop J in R v Williams-Savage [2021] ACTSC 271 where an offender was sentenced in relation to a range of thefts of a relatively minor nature. Although there was a theft in one matter of over $7,500 in cash for which the offender received a sentence of 10 months' imprisonment. That is a substantially objectively more serious offence than the one with which I am now concerned. Those judgments provide, as I say, some assistance in the way the comparative sentences can assist, but the Crown, itself, points out that considerable caution needs to be taken regarding prior sentences having regard to distinguishing features between each case. I have had regard to s 33 of the Sentencing Act I hasten to say and the various matters that arise in this case by reference to the evidence I have referred to in the course of my judgement. 

  1. I need not go through the relevant subparagraphs of s 33 seriatim. Obviously, in the context of discussing comparative cases, the primary sentence that really is of importance of this matter as a guide, if that is the correct expression, is the sentence imposed on the co-offender acknowledging some of the distinctions between that offender and this offender.

  1. I have had regard to all the submissions put by the parties.  I am very grateful for the assistance they have provided to me. Thus, in the context of what I have concluded I will make the following orders:

1.     I record convictions for each of the offences.

2.     In respect of the offence of theft (SCCAN2021/127) I sentence the offender to six months’ imprisonment (reduced from eight months’ imprisonment) to commence on 3 March 2022, expiring on 2 September 2022. I vary the offender’s existing non-parole period to expire on 3 June 2022.

3.     In respect of the offence of assault (“the transferred offence”) (CC2021/10267) the offender is sentenced to three months’ imprisonment (reduced from four months’ imprisonment) to commence on 3 March 2022 expiring on 2 June 2022.

4.     In respect of the Good Behaviour Orders, CC2017/9214, CC2017/6955, CC2017/8384, CC2017/8383 and CC2017/8382, breaches admitted by the offender but I direct no action.

I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Norrish

Associate:

Date: 10 March 2022

Actions
Download as PDF Download as Word Document


Cases Citing This Decision

0

Cases Cited

8

Statutory Material Cited

0

Jimmy v R [2010] NSWCCA 60
Bugmy v The Queen [2013] HCA 37