R v Simmonds

[2024] NSWDC 469

District Court

New South Wales

Medium Neutral Citation:

R v Simmonds [2024] NSWDC 469

Hearing dates:

26 June 2024

Date of orders:

11 October 2024

Decision date:

11 October 2024

Jurisdiction:

Criminal

Before:

Allen DCJ

Decision:

See paragraph [104]

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Criminal Procedure Act 1986 (NSW)

Firearms Act 1996 (NSW)

Road Transport (Vehicle Registration) Regulation 2017 (NSW)

Weapons Prohibition Act 1998 (NSW)

Cases Cited:

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

Clark-Jeffries v R [2019] NSWCCA 56

Devaney v R [2012] NSWCCA 285

Elias v The Queen (2013) 248 CLR 483

Imbornone v R [2017] NSWCCA 144

Kamanic v R [2014] NSWCCA 116

Lloyd v R [2022] NSWCCA 18

Lurque v R [2017] NSWCCA 266

Markarian v R (2005) 228 CLR 357

Muldrock v R (2011) 244 CLR 120

Osman v R [2020] NSWCCA 78

Palu v R [2002] NSWCCA 381

Pym v R [2014] NSWCCA 182

R v AEM [2002] NSWCCA 58

R v Almirol (No 2) [2007] NSWSC 323

R v Crawley [2021] NSWDC 354

R v Dawson [2022] NSWSC 1632

R v Dileski [2002] NSWCCA 345

R v Doudar [2020] NSWSC 1262

R v Farroukh and Farroukh (unreported, 29/3/96 NSWCCA)

R v Johnson [2014] NSWSC 1254

R v Qutami [2001] NSWCCA 353

R v Simpson (2001) 53 NSWLR 704

R v Walsh; R v Sharp [2004] NSWSC 111

R v Ward [2004] NSWSC 420

R v Warwick (No 94) [2020] NSWSC 1168

ZA v R [2017] NSWCCA 132

Texts Cited:

Nil

Category:

Sentence

Parties:

Jarrod Simmonds (Offender)
Rex (Crown)

Representation:

Counsel:
Mr D Smith (for the Offender)
Mr G Whitaker (ODPP)

Solicitors:
ODPP
Elysium Law Firm

File Number(s):

2021/285599

Sentence

Introduction

1. Jarrod Simmonds (the offender) was born in June 1995. He is 29 years old. At the time of the offences, he was aged 25 and 26.

2. The offender is to be sentenced for 5 substantive offences, that were committed on 5 April 2021, 26 September 2021, and 7 October 2021. For ease of description in these reasons I will categorise the offences into two groups. The first (Count 1) being the single offence of ‘Accessory after the fact to armed robbery in company with a dangerous weapon’, contrary to s 349(2) Crimes Act NSW, (the robbery offence). This offence attracts a maximum penalty upon conviction of 14 years. The second group being the following offences:

1. (Count 2) Accessory after the fact to discharge firearm with intent to cause grievous bodily harm, contrary to s 33A/350 Crimes Act NSW. This offence carries a maximum penalty upon conviction of 5 years imprisonment.

2. (Count 3) Possess Prohibited Pistol, contrary to s 7(1) Firearms Act 1996 NSW. This offence attracts a maximum penalty upon conviction of 14 years imprisonment and a SNPP of 4 years.

3. (Count 4) Possess Firearm in contravention of a Firearms Prohibition Order, contrary to s 74(1) Firearms Act NSW. This offence attracts a maximum penalty upon conviction of 5 years imprisonment, and

4. (Count 5) Acquire ammunition whilst subject to a Firearms prohibition order, contrary to s 74(3) Firearms Act NSW. This offence also attracts a maximum penalty of 5 years imprisonment. (The firearms offences).

3. 3. In addition to the 5 substantive offences for which the offender is to be sentenced he has acknowledged his guilt in respect to a series of offences (3), arising at the time of the firearms offences, which have been placed on two Form 1 documents and which the offender asks that I take into account when imposing sentences for the substantive offences to which they attach. The Form 1 offences are as follows:

1. Accessory after the fact to discharge firearm with disregard for public safety, contrary to s 93G (1)(c)/350 Crimes Act – which attaches to the substantive offence of Accessory after the fact discharge firearm with intent to cause GBH.

2. Possess a prohibited weapon (an expandable baton), contrary to s 7(1) Weapons Prohibition Act 1998, and

3. Possess a prohibited weapon (an expandable baton), also contrary to s 7(1) Weapons Prohibition Act.

4. Each of the possess prohibited weapon Form 1 offences attach to the substantive offence of Possess Unauthorised Pistol offence of 7 October 2021, for which the offender is to be sentenced.

5. The offender also pleaded guilty to related offences of Possess ammunition without licence/permit, contrary to s 65(3) Firearms Act, and an offence of driving or using a motor vehicle with an unauthorised number plate attached, contrary to s 129(1), Road Transport (Vehicle Registration) Regulation 2017. Each of these offences is before the court by virtue of s 166 Criminal Procedure Act 1986 as related offences.

6. Having availed himself of the Form 1 arrangement the offender has the benefit of not facing separate punishment for these additional offences. The additional offences do, however, impinge upon the sentence to be imposed for the principal offence to which they attach, by requiring an appropriate increase in the sentence to that principal offence if it was standing alone, having regard to the objective seriousness of the Form 1 offence. This is to reflect the need for greater weight to be given to specific deterrence arising from the extent of the offender’s criminal behaviour and the community’s entitlement to retribution for this additional offence (see Attorney Gen’s Application under s 37 of the C (SP) Act 1999, No 1 of 2002 [2002] NSWCCA 518 at [42]).

Background – Robbery Offence (5 April 2021)

7. On 12/05/2023 the offender was committed for trial to the District Court at Penrith in respect to the following offences:

1. Aggravated Robbery with a dangerous weapon in company.

2. Intentionally destroy property by means of fire.

3. Aggravated Robbery with a dangerous weapon in company.

4. Use an offensive weapon to commit an indictable offence, namely, intimidation, and a related offence pursuant to s 166 Criminal Procedure Act,

5. Taking conveyance without consent.

8. Sequences i and iii above are offences contrary to s 97(2) CrimesAct and carry a maximum sentence of 25 years imprisonment. Sequence ii is contrary to s 195(1A)(b) Crimes Act and carries a maximum penalty of 11 years imprisonment. Sequence 4 is contrary to s 33B(1)(a) Crimes Act and carries a maximum penalty of 12 years imprisonment. Sequence v is contrary to s 154A(1)(b) Crimes Act and has a maximum penalty of 5 years imprisonment. It was before the District Court at the time by virtue of s 166 Criminal Procedure Act 1986.

9. On 23/06/2023 the offender pleaded not guilty to the 4 sequences when arraigned and the trial was listed to commence on 05/02/2024. On 02/02/2024 the Crown filed a fresh Indictment bearing the following single charge:

“That the offender on 5 April 2021 was an accessory after the fact to an armed robbery in company with a dangerous weapon”.

10. On 02/02/2024 upon arraignment for the single offence the offender pleaded guilty. As noted previously the offence is one contrary to s 349(2) Crimes Act and carries a maximum penalty upon conviction of 14 years imprisonment. It is agreed between the parties that the guilty plea was entered as soon as practicable following the presentation of the ex officio Indictment, and the offender is therefore entitled to a 25% discount on any sentence that would otherwise be imposed in accord with s 25D (3) CSPA. Upon the guilty plea being entered the Crown indicated ‘no further proceedings’ on all the charges on the former Indictment as well as the charge on the s 166 Certificate. The sentence proceedings were listed before me sitting as the list judge at the District Court at Penrith on 4 April 2024. After the tender of material from both the Crown and the offender, the proceedings were adjourned for sentence judgment.

Background - Firearms Offences (26 September 2021 and 7 October 2021).

11. The offender was committed for trial on the ‘Firearms Offences’ from the Campbelltown Local Court on 9 November 2022. The original trial date in the District Court for the ‘Firearms Charges’ of 28 August 2023 had been vacated before listing, and a new trial date of 20 May 2024 had been set. None of these offences was before me at Penrith on 4 April 2024. On 3 May 2024 during the period of the adjournment the offender had pleaded guilty to the offences of possession of the prohibited pistol, and possession of a firearm and acquiring ammunition in contravention of a firearms prohibition order, (offences dated 7 October 2021). It is agreed between the parties that these pleas of guilty were entered more than 14 days prior to the trial.

12. On 29 May 2024 a plea of guilty was entered by the offender to the offence of Accessory after the fact to discharging a firearm with intent to cause GBH at Macquarie Fields on 26/09/2021, as well as the s 166 offences. This at a time the offence was listed for trial before Acting District Court Judge Blackmore, following plea negotiations between the crown and the legal representatives for the offender. The guilty plea was entered after the commencement of the trial, but on the day the offence was added to the indictment presented at the time by the Crown as an ex-officio count.

The sentence hearing – Robbery offence.

13. As noted the initial sentence hearing for the offence of accessory after the fact robbery in company armed with dangerous weapon (the robbery offence), proceeded before me on 04/04/2024. Mr Kanagasabapathy, solicitor appeared for the Crown, and Mr Lang of counsel appeared for the offender who appeared in person in Court from custody. At the sentence hearing the Crown tendered the Crown Sentence Bundle (Exhibit A) which included the following:

1. Statement of Agreed Facts

2. Offender’s NSW Criminal history.

3. Offender’s NSW Custodial history.

4. Material from the sentence proceedings of Daniel McAlister including:

Charge Certificate and Form 1.

Agreed Facts.

McAlister’s Criminal History, and

Remarks on Sentence of Daniel McAlister, dated 16/10/2023.

14. Mr Lang of counsel tendered the Defence Sentence Bundle (Exhibit 1) which included the following:

1. Report of Sam Al-Bassit, psychologist, dated 19/03/2024.

2. Affidavit of April Skye Kettley, dated 20/03/2024.

3. Offender’s letter of apology, dated 20/03/2024.

15. In addition, both the Crown and Mr Lang had prepared detailed written submissions on sentence which were marked MFI-1 and MFI-2 respectively. A Sentencing Assessment Report (SAR) authored by Candice Brennan, Community Corrections Officer, dated 28/03/2024 (Exhibit B) was also tendered. Both Mr Lang and the Crown then made further and detailed oral submissions to the court. I wish to thank both the Crown and Mr Lang for their detailed and helpful submissions.

The sentence hearing – The firearms offences.

16. On 26 June 2024 Mr Whitaker crown prosecutor and Mr Smith barrister for the offender appeared before me at the Penrith District Court. The offender appeared from custody in person. On that occasion the Crown tendered the Crown bundle on sentence without objection. The bundle was marked Exhibit A in the sentence proceedings and contained the following:

1. Indictment 12.2 – Offence of Accessory after the fact discharge firearm with intent to cause GBH – contrary to ss 33A/350 Crimes Act.

2. Form 1 document – Offence Accessory after the fact discharge firearm with disregard for public safety – contrary to ss 93G(1)(c)/350 Crimes Act.

3. Indictment 13.2 – offences of possess prohibited pistol contrary to s 7(1) Firearms Act, possess firearm in contravention of Firearms prohibition order, and acquire ammunition contrary to Firearms prohibition order, contrary to ss 74(1) and 74(3) Firearms Act

4. Form 1 document – offences (2) possess prohibited weapon (expandable baton) contrary to s 7(1) Weapons Prohibition Act.

5. Section 166 Certificate with CANS for related offences.

6. Agreed Facts – Firearms Offences.

7. Offender’s NSW conviction history.

8. Offender’s NSW custodial history, and

9. Agreed Facts from previous offence (Fire firearm in manner likely to injure persons), dated 18/12/2011.

17. On behalf of the offender Mr Smith tendered the defence bundle (Exhibit 1) which contained a report of Sam Albassit, psychologist, dated 19/03/2024 (tendered in the earlier proceedings), an affidavit of April Skye Ketley dated 20 /03/2024, and the offenders typewritten letter addressed to the court, dated 20/03/2024, also tendered in the earlier proceedings.

18. In addition to the Crown sentence bundle Mr Whitaker, crown prosecutor provided the court with extensive written submissions (MFI 1). Mr Smith provided the court with a copy of the written submissions of Mr Lang of counsel, who appeared for the offender at the sentence proceedings before me on 4 April 2024. Those submissions were marked MFI 2. Both the Crown and counsel for the offender made additional oral submissions. I take this opportunity to thank the Crown and counsel for the offender for their submissions in the sentence proceedings on both dates. Ultimately the matter was adjourned until this date for sentencing judgment.

19. As with all sentencing it is necessary for me to assess the objective seriousness of the offences. I am required to do this by reference to the maximum penalty as prescribed by the Parliament, being a legislative guidepost as to the seriousness with which the offences are to be viewed, the facts and circumstances of the offending, relevant common law principles and by having regard to the applicable sections of the CSPA. I am required by process of instinctive synthesis to impose a sentence that is proportionate to the gravity of the offending and in doing so, to have regard to the factual circumstances of the offence and the subjective features of the offender. This means amongst other things, that sentencing is not and cannot be a matter of precise calculation. As was observed by Harrison J in R v Dawson [2022] NSWSC 1632 at [10]:

“Assessing the objective seriousness of the crime is a synthesis or amalgamation of relevant factors touching and concerning the circumstances of its commission undertaken with the benefit of judicial experience. Reasonable minds may differ as to the conclusion”.

20. As the offences of possessing a prohibited pistol, is one which attracts a standard non-parole period, I must also pay attention to it. I am mindful also that the Form 1 offences of possessing a prohibited weapon contrary to s 7(1) Weapons Prohibition Act, also attract a SNPP. In Muldrock v R (2011) 244 CLR 120 the High Court held that the standard non-parole period applicable to an offence is not to be treated as if it were a necessary starting point or the only important endpoint in framing a sentence for such an offence. Reference to it is part of the task whereby the court determines the appropriate sentence in the process of intuitive or instinctive synthesis discussed by McHugh J in Markarian v R (2005) 228 CLR 357 at [51]. In the determination of a sentence for an offence where there is a standard non-parole period, it and the maximum penalty are legislative guideposts for the court along with other established sentencing principles and, to the extent relevant, the CSPA.

21. I must also have regard to the purposes of sentencing set out in s 3A of the CSPA. Those purposes are adequate punishment, general and specific deterrence, the protection of the community, the rehabilitation of the offender, the need to make the offender accountable for his conduct and to denounce it, and the need to recognise the harm done to the victim and the community. Normally in offences of this kind deterrence, denunciation, recognition of the harm done to the victim of the crime and the community and protection of the community are fundamental considerations.

22. In Elias v The Queen (2013) 248 CLR 483 at [27], the HCA said:

“… The factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion.”

23. Once all the relevant factors have been considered as was observed by Garling J in R v Warwick (No 94) [2020] NSWSC 1168 at [15]:

“The sentencing judge is then in a position to undertake an “instinctive synthesis” whereby the judge “makes a value judgement” as to what is the appropriate sentence given all of the factors of the case. As the “instinctive synthesis” approach to sentencing embodies a value judgement there is no such thing as a single correct sentence”.

Agreed Facts

24. A statement of agreed facts signed by the parties was included in the Crown Sentencing Bundles (Exhibit A), on each sentence hearing date, and it is upon the basis of those agreed facts that the offender will be sentenced. Those facts are annexed to these written reasons, and I note each has been signed by the offender. Having regard to the time constraints today and the fact the agreed facts documents are signed I do not propose to recite them.

[Read Agreed Facts Document if no agreement]

General Sentencing Principles – Accessory after the fact offences

25. It has been held by the courts that there is a wide variation in the possible degrees of culpability involved in the offence of being an accessory after the fact. General deterrence and retribution are important considerations in sentencing for such offences: R v Ward [2004] NSWSC 420 at [51].

26. Accessories after the fact are viewed more seriously where the offender has a personal interest in the criminal enterprise or became involved through their association criminal elements: R v Farroukh and Farroukh (unrep, 29/3/96 NSWCCA). Only assistance or conduct that assists the principal offender to evade justice is embraced by the offence of “accessory after the fact”: R v Dileski [2002] NSWCCA 345 at [8]. The length of time over which the offender acts to assist the principal evade justice is also relevant, as is the motivation for which the offender acted to assist the principal: R v Walsh; R v Sharp [2004] NSWSC 111 at [48]: R v Dileski op cit at [17].

Objective Seriousness – Accessory after the fact robbery in company armed with a dangerous weapon offence.

The Crown Submissions

27. In submissions the Crown noted that in sentencing for any offence, a sentencing judge must determine the objective seriousness of the offence. An assessment of objective seriousness of an offence is crucial to ensure that any sentence imposed is proportionate to the criminality inherent in the offence. In this case the offender was an accessory after the fact to aggravated robbery committed by the co-offender and two unknown persons. The robbery offence was objectively serious, and included the use of dangerous weapons and it was committed in company. At the time the offender agreed to assist the co-offender, he knew that the robbery had been committed with dangerous weapons and had been committed in company. The Crown submitted that the offender was aware that money had been stolen in the course of the robbery.

28. The Crown asserted that the offender’s conduct was undertaken to assist the co-offender (McAlister) to evade detection and arrest, in full knowledge of the seriousness of the offence committed. While efforts to destroy the car’s identifying details were ultimately unsuccessful, the car was stolen and untraceable to either the offender or the co-offender, and the co-offender was only arrested 8 months after the commission of the principal offence. The Crown submitted that notwithstanding the attempt to destroy the motor vehicle was not entirely successful, the offender’s intentions were clear, he sought to destroy the evidence that linked the co-offender McAlister to the robbery offence, and thus thwart his detection and arrest by the police.

29. The Crown asserted that the offence is a serious example of this type of offence and warrants a sentence that emphasises factors such as general and specific deterrence and protection of the community through denunciation of the offender’s conduct.

The Offenders submissions

30. In both written and oral submissions Mr Lang, counsel for the offender identified a number of features of the offence that go to an assessment of its objective seriousness. Firstly, he referred to the principal offence of aggravated armed robbery in company. He conceded that the principal offence is an example of serious criminal offending. However, he asserted that in sentencing the principal offender, Judge McHugh (the sentencing judge) found that the planning for the offence was without sophistication, and whilst the offence involved the actual threatened use of a weapon, the intensity of the threat posed by the principal offenders to the victims of the robbery was relatively low. The sentencing judge found that the presence of three offenders aggravated its seriousness. The principles took $20,000-$25,000 cash from the robbery and a set of car keys for a motor vehicle that was unable to be started and therefore left on the premises. The amount taken was not insignificant.

31. Secondly, in respect to the extent of the offender’s knowledge of the circumstances of the principal offence, his knowledge is confined to the “bare elements of the offence”, in addition to there being monetary proceeds from the robbery (although no knowledge as to the quantum of money taken), and that the principal offenders left the location of the robbery in a particular vehicle as identified in the agreed facts. The agreed facts at (paragraphs 28 and 33) disclose that the offender only had knowledge of the principal offence for a matter of hours. The extent of his knowledge is set out at paragraphs [28]-[29] of the agreed facts:

“28. Sometime on 5 April 2021, the offender Jarrod Simmonds became aware of an armed robbery that took place at Clarendon Tavern involving the co-offender Daniel McAlister and the other two unknown males. The offender was aware that one of the males was armed with a dangerous weapon at the time of the robbery. The offender was also aware that money was taken from the Clarendon Tavern during the armed robbery. The offender was not aware of the amount of money taken.

29. The offender was also aware that the white Jeep was used in the course of the robbery and that it was driven from the Clarendon Tavern as a getaway car and dumped at Bligh Park after the armed robbery.”

32. In respect to the extent of the offender’s knowledge of the principal offence Counsel submitted that the agreed facts establish:

1. The offender was not aware of the value of the property taken.

2. He was aware that one of the three men was armed with a dangerous weapon, rather than being aware that each offender was armed.

3. He was not aware of any of the particular acts engaged in by the principal offenders, that amounted to the robbery, and

4. He was not aware of the extent of any planning or level of sophistication, if any, attaching to the principal offence, and

5. The offender was later recruited to assist after the fact by the principal, Daniel McAlister.

33. Thirdly, the acts of the offender were confined to a single and largely unsuccessful attempt to assist the principal offender McAlister to burn the Jeep motor vehicle. The act was carried out after the offender was driven, as a passenger, from an unknown location to Bligh Park near where the Jeep was located. The offender is observed to exit the motor vehicle in which he was a passenger (blue Mercedes belonging to Daniel McAlister) and walk with the driver and another male towards a laneway where the Jeep had earlier been dumped. The offender is then seen with others to open the doors of the Jeep, ultimately causing damage to part of the interior of the Jeep by means of fire.

34. In sentencing co-offender McAlister, the sentencing judge described the objective criminality for the offence of damaging the Jeep by fire as “significantly below the mid-range, that was a real lack of planning here, they returned many hours later in an apparent effort to destroy evidence and were entirely unsuccessful in doing so (sic)”. Counsel submitted acts in assisting the principal ceased at that point and he did not endeavour or attempt to assist the principal offender in any other way.

35. Fourthly, counsel noted that at paragraph 34 of the agreed facts the length of time that assisted the principal offender in evading justice was about 5 minutes. That is, the time between the offender leaving the dumped Jeep in Bligh Park having attempted with the others to set it alight, and the fire being extinguished the by use of a garden hose took 5 minutes.

36. Fifthly, counsel submitted that the extent to which the acts of the offender successfully delayed, or thwarted the investigation and prosecution of the principal offender was negligible. He noted that police successfully recovered several DNA profiles from the Jeep which were consistent with the DNA of the principal located on items he had left at premisses in Bligh Park. The interior of the Jeep was only partly damaged, and the setting of the fire within it was so ineffective that the fire was able to be extinguished by use of a garden hose within minutes of the fire being lit. The agreed facts are silent as to there being any other evidence in the Jeep such as clothing, weapons and the like, that was sought to be destroyed in the fire. Counsel further noted that the principal offender was identified by his DNA located from items he had left behind in the Bligh Park home where he dumped those items after committing the offence, and the principal was also captured on CCTV in Bligh Park after the commission of the offence in the vicinity of the Jeep motor vehicle, and then later driving his vehicle into Bligh Park for the purpose of setting fire to the Jeep with the offender as passenger. Counsel also noted that even if the vehicle had been totally destroyed by fire it would have been identifiable by the VIN. In essence Counsel submitted that there was significant other evidence available to police, and ultimately used by police to link the principal offender with the robbery offence.

37. Counsel also noted that at the time the offender assisted in relation to setting fire to the Jeep, the principal offenders had already successfully left the scene of the robbery, and no conduct on the part of the offender acted in any way to assist the principal offenders in achieving that end. His assistance was therefore limited to unsuccessfully attempting to burn the Jeep, thereby assisting the principal offender, McAlister. Counsel noted that the evidence sought destroyed with the offender’s assistance was not essential to a successful police investigation, it could have been carried out by another person who was not the offender, and could have been carried out without the assistance of a second person in that respect, counsel submitted that it could not be said that this offender’s role or his assistance was “integral” or “central” to the principal offender evading justice (see Kamanic v R [2014] NSWCCA 116 at [44]-[45]). The evidence recovered by police, including from other sources unrelated to the Jeep led to the prosecution and conviction of the principal offender, McAlister, who pleaded guilty to the principal offences.

38. Sixthly, counsel noted that the offender’s motivation in committing the offence was that he was offered illicit drugs in exchange for participating in the offence. This offer of illicit drugs was in the context of the offender’s long-standing drug addiction as referred to in the Sentencing Assessment Report tendered in the proceedings. Further, the offender disclosed to the psychologist, Sam Albassit a as contained in the report at paragraph 40 that:

“He had been consuming ice and heroin heavily. Mr Simmonds said that a friend of his contacted him saying he needed help with something. He said that he did not ask but was told that he would be compensated for it with heroin. Mr Simmonds said that he was highly addicted to drugs at the time, and out of desperation to obtain more drugs and satisfy his habit, he decided to aid with burning the vehicle.”

39. Counsel submitted that the offender’s motivation in committing the offence and assisting the principal offender was to satisfy a long-standing drug addiction that he developed as a child.

40. The final feature of the offence identified by counsel for the offender that informs the assessment of its objective seriousness is whether the offender’s conduct was motivated by a sense of misguided loyalty or emotional attachment to the principal offenders. The Agreed facts disclose that the offender was recruited into the offending, by the principal offender. As reported by the psychologist, Sam Albassit in his report at paragraph 40, the offender disclosed that he was requested to assist in the offence by a friend may give rise to some misguided sense of loyalty together with the offer of drugs, his motivation being to satisfy an entrenched and long-standing drug addiction.

41. Ultimately Counsel submitted that with proper regard to the features of the offence identified, establish it as a less serious example of offending of this nature.

Determination

42. Those features of the offence raised in submissions by Mr Lang, counsel for the offender were factors identified by Hamill J in R v Johnson [2014] NSWSC 1254 as important in informing the assessment of the objective gravity of offences of this kind. In Johnson the offender was to be sentenced as an accessory after the fact to murder, where a guilty plea had been entered at the first reasonable opportunity as an alternative charge to murder. In Johnson, Hamill J said at [13]:

“An assessment of the objective gravity of offences of this kind involves a consideration of a number of factors. These include but are not limited to:

(1) the circumstances of the murder itself.

(2) the extent of the knowledge in the accessory of those circumstances.

(3) the precise act, or acts, which constitutes the offence of being an accessory after the fact.

(4) the length of time over which the offender assisted the principal offender in escaping justice.

(5) the extent to which the acts of the offender successfully delayed, or thwarted, the investigation and prosecution of the principal offender.

(6) the motivation of the offender in committing the crime.

(7) related to the question of motivation is the question of whether the offender’s conduct was motivated by a sense of misguided loyalty or emotional attachment to the principal offender. This is a circumstance of particular significance in cases where a family member assists the principal offender, and

(8) it has generally been held that offences which involved the disposal or destruction of a course are cases which fall at the upper end of the range of criminality for the offence.”

43. There can be little doubt that the actual offence of endeavouring to destroy a motor vehicle (the Jeep) by means of fire is an objectively serious offence, albeit in the context of this case the attempt was largely unsuccessful and the damage to the motor vehicle was minimal. It is uncontroversial that on the day of the armed robbery the offender became aware that the robbery had taken place at the Clarendon Tavern and involved the co-offender Daniel McAlister, and two other unknown males. It is apparent the offender was aware that one of the males was armed with a dangerous weapon at the time of the robbery, and that an amount of money was taken. The offender was not aware that each of the males was armed, nor of the amount of money actually taken in the course of the robbery. He was also aware that the white Jeep was used in the robbery and was driven from the Clarendon Tavern as a getaway car and dumped at Bligh Park after the robbery.

44. The offender was a passenger in McAlister’s blue Mercedes motor vehicle driven by McAlister to Bligh Park where the Jeep had been dunked. He was aware on being taken by the co-offender to Bligh Park that he was to assist the co-offender destroy the Jeep by fire, in order to avoid detection and a connection between that white Jeep and persons who travel in it and committed the armed robbery at the Clarendon Tavern.

45. The agreed facts disclose that the offence of attempting to destroy the stolen white Jeep at Bligh Park by means of fire took about five minutes. CCTV at the time captured the offender and the co-offender open doors of the white Jeep and then leave the area on foot. About five minutes later, white smoke is captured coming from the white Jeep. A number of witnesses then attend and put out the fire inside the dude with a garden hose. It is uncontroversial that upon attending the site of the Jeep, police observed that its interior had been damaged by fire. The damage is depicted in photographs attached to the agreed facts document in Exhibit A. Police were able to trace the VIN number to the address and owner of the white Jeep Cherokee which had been stolen on 8 December 2020.

46. It is also generally agreed between the parties, and a fact about which I am satisfied, that the actions of the offender in assisting the principal were not only engaged in by the offender at the request of the co-offender, for which he was to receive illicit drugs. The offence took approximately five minutes and was largely unsuccessful insofar as the Jeep was not destroyed and, as such, did not undermine or frustrate or greatly assist the principal in evading justice for an extended period. The police investigation had available to it other evidence linking the principal to the robbery offence, and police were able to identify the white Jeep to the robbery offence because the damage occasioned to the vehicle was two parts of its interior only.

47. I am satisfied that those features identified in the offending established it as being a relatively less serious example of an offence of its type, and below what may be described as the ‘broad mid-range of objective seriousness’.

Assessment of objective seriousness of firearms offences.

48. From the outset I note as both the crown and counsel for the offender have alluded to there being a number of discreet offences committed on 26 September 2021 and 7 October 2021, the latter taking place at the time the police stopped and searched the offender while he was driving his motor vehicle and subsequently searched his home. Both submitted that the offences may or may not be properly assessed as reflecting differing levels of seriousness.

The Crown submissions

49. The Crown referred to the judgement of Hamill J in R v Johnson [2014] NSWSC 1254 referred to previously in these reasons. It was submitted in respect to the accessory after the fact to the discharge firearm intent to inflict grievous bodily harm that a significant aggravating feature of the offence is the presence of the offender during the commission of the shooting offence. In R v Almirol (No 2) [2007] NSWSC 323 at [43] it was stated where the accessory after the fact is “necessarily apprised of the enormity of what had occurred, and which he later helped to conceal” is relevant to the assessment of the objective seriousness of the offending. In this case the principal offences were objectively very serious. They each involved the discharge of a firearm in a residential street, with a high likelihood of serious harm or death to persons in the vicinity, which included a number of children playing in the front yard of the premises where the incident took place or riding bikes in the street.

50. The Crown submitted that the deliberately targeted shootings resulted in a serious injury to the victim Danny Armstrong, which required surgery including a bone graft. The offender, in full knowledge of the seriousness of the principal offences, himself present at the time, then drove the shooter away from the scene. While there is no direct evidence of the offender’s motivation, the Crown submitted that it may be inferred he was motivated out of loyalty to his associate who had come to the scene with the offender, who was intending to confront the person Dawson. The facts are silent, and no inference may therefore be drawn as to whether the offender was aware the shooter who travelled to the scene with the offender was armed with the shortened firearm, intending to use it.

51. Police arrived at the scene about 5 minutes after the incident, by which time the shooter had successfully departed from the area. He has not been brought to justice. The Crown submitted the offence, having regard to its particular characteristics, most notably the presence of the offender throughout the commission of the principal offence renders it a serious example, above the mid-range of seriousness.

52. In respect to the possession of the unauthorised pistol offence, the Crown noted that it was an imitation. However, it was submitted that this is not a matter that assists the offender in mitigation. The Crown referred to the decision of R v Crawley [2021] NSWDC 354, where Haesler SC DCJ held:

“Parliament has said that any firearm offence is treated seriously, as the maximum penalty makes clear. Firearm possession is a privilege that is conditional on the overriding need to ensure public safety. There was no legal justification here for the possession of the gel pistol. It is not enough to say it is a toy or available online. At law there is no distinction between replica and real, or capacity to fire a pellet or hard ammunition. This pistol could have been mistaken for a real weapon. The consequences of producing such items in public do not need to much amplification. In the modern world that someone is carrying a firearm can provoke a reaction both in members of the public and law enforcement officers that could have quite disastrous consequences.”

53. The Crown asserted the reasoning in Crawley is apposite in this case. While the pistol was not produced or brandished or being carried in a public place, it is the potential consequences of the use of such a firearm in the commission of a crime that typifies the objective criminality of the possession of an imitation pistol. The offender knowingly in breached the firearms Prohibition order not only by possession of the unlawful firearm but also a range of ammunition of different calibres for different types of firearms. The Crown submitted that these wilful and deliberate breaches of orders designed to protect the community from gun crimes are objective serious examples of offences under s 74 Firearms Act.

The offender’s submissions

54. In submissions Mr Smith counsel for the offender did not necessarily cavil with the assertion by the Crown that the presence of the offender as an accessory after the fact during the commission of the principal offence (the shooting) elevates the objective seriousness of the offence. He noted, however, that there is no evidence the offender was aware the principal offender was armed ever intended to use/discharge the firearm in the manner described in the facts. It was conceded that the offender had attended the premises to confront the person Jaiden Dawson arising from a rumour that Dawson had shot at the offender’s brother’s home. Counsel noted that the agreed facts do not suggest or infer that the offender himself pursued or sought to pursue Dawson or the victim Armstrong after the shooter had fired the gun at the victim. Rather the facts state that the offender and his brother and the unknown male got back into the VW Golf driven by the offender and left. Mr Smith submitted the facts disclose that the offender drove his brother to the premises. No inference is available arising from the facts that the offender knew that the unknown male was armed or intended to use the firearm or in fact did use the firearm. The offender did not assault or threaten anyone. His role is confined to that of “driver”, and the facts unambiguously disclose that it was the victim, Danny Armstrong who started the fight, precipitating the unknown male producing the firearm and discharging it. Counsel submitted the offence falls generally within the broad mid-range of seriousness for offences of its type.

54. In respect to the possession of the unauthorised prohibited pistol and the firearm Prohibition order offences, counsel identified the pistol as being an imitation. He submitted it was unable to be fired, and the facts do not disclose the presence of any ammunition capable of being put into the pistol. He submitted that it could not be loaded, and it could not be fired. These are important considerations in the assessment of the objective seriousness of the possession offences. Further, the facts disclose that the pistol was not found on the offender, and there is no suggestion it was linked with other offending or associated with another offence. Mr Smith asserted this all impacts upon a proper assessment of the objective seriousness of the offence, together with it being a replica/imitation.

55. In respect to the offences in contravention of the firearms Prohibition order, counsel noted the order was made as a result of offences in 2013. There have been no subsequent offences other than the present offences since that time in contravention of the FPO.

56. Although conceding the possession of the pistol is a serious offence, counsel asserted is nonetheless an offence that falls generally below the broad mid-range of objective seriousness for offences under s 7(1) Firearms Act and s 74 of the Act.

Determination

58. I am satisfied that the presence of the offender throughout the entirety of the commission of the shooting offence by the unknown male whereupon the offender then drives the unknown male and his brother away from the scene after the victim Danny Armstrong has been shot and seriously injured, significantly elevates the objective seriousness of the accessory after the fact offence. I also note that the unknown male has never been brought to justice, and the injuries sustained by the victim, Danny Armstrong were substantial and required surgery including a bone graft. I assess the objective seriousness of this offence as being in the upper level of the broad mid-range of seriousness.

59. Whilst I am mindful and agree with the statements of Haesler SC DCJ in Crawley (op cit), I accept the general thrust of the submissions made on behalf of the offender by Mr Smith of counsel as to the lessor objective seriousness of the possession of the prohibited pistol and firearm Prohibition order offences. Having regard to the identified characteristics of these offences it is my view that they fall below the broad mid-range of seriousness for offences of this type.

The offender’s subjective case

60. As previously observed contained within the sentence bundle tendered on behalf of the offender (Exhibit 1), is a report of Sam Albassit, psychologist, dated 19/03/2024, the affidavit of his former partner, April Skye Ketley of 20/03/2024, and the offender’s letter to the Court also dated 20/03/2024. The Crown has taken some issue with the material and asserts that the Court should apply the principles outlined by Wilson J in Imbornone v R [2017] NSWCCA 144 at [57], and Smart J in R v Qutami [2001] NSWCCA at [58] – [59]. In essence the Crown has urged that the Court afford the material little, if any, evidentiary weight as hearsay statements made to a third party that cannot be tested by the offender giving evidence and subjected to cross examination. Whilst I accept at the very least that the court should regard such evidence with caution, I am also mindful that the Crown had opportunity to seek that the author of the report, Sam Albassit, and Ms April Skye Ketley, the maker of the affidavit, be made available for cross examination at the sentence hearing but chose not to make such request. Be that as it may I am also mindful of what was said by MacCallum J as her Honour then was in Lloyd v R [2022] NSWCCA 18 (with whom Hamill and Cavanagh JJ agreed) at [43] – 47]:

“…in Qutami v R [2001] NSWCCA 353 (Qutami). In that case, Smart AJ made a “general observation” at [58] that “very considerable caution should be exercised” in relying upon statements made by a prisoner to a psychiatrist or a psychologist when the prisoner does not give evidence. His honour said, “in many cases only very limited weight can be given to such statements and continued [59]:

‘There has been a noticeable and disturbing tendency of more recent prisoners on sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this caused great caution will be exercised in respect of the weight, if any, given to those statements.’

44 Spigelman CJ agreed with those observations at [79]. The third judge, Simpson J, was silent on this issue. Her honour agreed with the orders proposed by Smart AJ but did not express her agreement with his Honour’s reasons.

45 Smart AJ’s general observation in Qutami is sometimes mistaken for the principle. It is not. If it were, it would be a wrong principle which required correction. Leaving aside the fact that the rules of evidence do not apply to proceedings on sentence unless the court so directs, the weight to be given to particular kinds of evidence in such proceedings cannot be pre-empted as a matter of principle. The weight and cogency of the evidence is always a matter for the individual assessment of the sentencing judge.

46 The current practice of the District Court is to require any report prepared by a mental health expert to be served in advance of the sentence hearing: District Court Criminal Practice Note 20, cl 15. The clear purpose of that practice is to afford the Crown an opportunity to consider whether to accept or challenge the contents of such reports. In cases where a report is not challenge, the correct approach is as stated by Allsop P (with whom Price JJ agreed that [101]) in Devaney v R [2012] NSWCCA 285 at [88] (cited by Hamill J in Lurque v R [2017] NSWCCA 266 at [116] and Fullerton J in Pym v R [2014] NSWCCA 182 at [79] (Hoeben CJ at CL and Price J agreeing at [1] and [2]):

‘It is one thing to discount admissible statements made to a psychiatrist or psychologist if the offender is not prepared to give evidence to the same effect: Qutami at 377 [58]-[59] and 380 [79] and [83] and Palu at 184-185 [40] and 175 [1] and [2] (although care needs to be taken not effectively to exclude admissible evidence by a process of going beyond an assessment of weight); it is quite another to lessen the effect of the opinion of a professional psychiatrist, without cross examination, when that opinion is based on history. In most cases, a psychiatrist will form a diagnosis from what is said to her or him; that is the very nature of the professional expertise be deployed. Part of the professional skill of the psychiatrist is the assessment of the history-how it accords with hypothesised and formed views of the professional. To say that the applicant was manipulating the psychiatrists is to criticise the professional opinions of the psychiatrists and should be put to them. The sentencing judge should not have diminished the weight of the psychiatrists who came to the view that the applicant had some insight into his condition.’

47 I would particularly endorse his Honour’s observation that care needs to be taken not to exclude admissible evidence “by a process going beyond an assessment of weight”. Where the report of a mental health professional is admitted without objection, qualification as to its use or cross examination of the author, no principle of law requires the sentencing judge to exercise “very considerable caution” before relying on its contents absent evidence from the offender. It is by no means beyond debate that the court is the only for in which a reliable medical history can be obtained. To sweep aside the considered opinions of medical experts with clinical experience in taking psychosocial histories and assessing the significance, with respect, a lawyerly arrogance.”

61. Ultimately matters sought to be established to the benefit of the offender must be proved on the balance of probabilities. Having regard to the submissions of the Crown in respect to the psychologist’s history and opinions generally I am mindful of the need to exercise caution, but also to exercise the necessary care such as not to effectively exclude admissible evidence by a process of going beyond an assessment as to the weight to be given to the evidence. I am satisfied having proper regard to the content of the material provided in the sentence hearings on behalf of the offender, and the caution I should exercise in assessing it, as urged by the Crown, it is a matter as to the weight to be given to the material, particularly in respect to its impact, if any, upon my assessment of the offender’s moral culpability.

62. As previously noted, the offender is now 29 years of age. He was 25 and 26 years old at the time he committed the offences for which he is to be sentenced. He has a long criminal history that dates well into his early adolescence. In August 2013 was sentenced to 4 years imprisonment with a NPP of 2 years for an offence of “discharging a firearm in a manner likely to injure persons/property”. At the time he was 16 years old. It is uncontroversial on the material before me that he has been in conflict with law enforcement since his childhood and on his own account has spent 10 of the last 15 years (that is since he was 14 years old) in custody.

63. In his report, dated 19 March 2024, Sam Albassit psychologist reported the offender does not have any relationship with his parents. He has three siblings. The offender described a traumatic, abandoned, and violent upbringing. He disclosed that his father was an alcoholic and his mother a drug addict. He reported his father was always intoxicated and his mother drug affected, often passed out on the couch. He witnessed his father physically assaulting his mother, and he would often intervene in an effort to protect his mother from the physical assaults perpetrated by his father. He and his siblings would often run into the room to avoid their father and hide. He witnessed his mother regularly using drugs, and his father’s fits of rage and physical assault.

64. The offender attended primary school from kindergarten until year 6. Thereafter he went on to attend high school from year 7 until year 10. He did not complete his school certificate. The offender disclosed that he struggled throughout his childhood. He found it hard to concentrate at school, describing himself as “always mucking up”, and constantly getting into fights at school. He found it difficult to fit in with the other students. He described being left to his own devices much of the time.

65. The offender reported to the psychologist that at about the age of 10 he had run away from home and was effectively living on the streets “running amok”, engaging in antisocial behaviour and petty crime. By the time he was 13 he was associating and anti-social crowd and using illicit substances. He commenced consuming cannabis and within a few months was consuming that drug on a daily basis, before moving on to using pills and speed. He described his behaviour as reckless and uncontrollable, he was stealing cars, breaking, and entering property, and stealing clothing and food. He described needing to commit crime to survive and it became a way of life for him. By this time, he was constantly in trouble with police which led him to being incarcerated at Reiby juvenile justice centre on about 8 to 10 overnight detentions, then spending three weeks on remand. Upon his release he returned to live on the streets and use of illicit drugs. By the time he was aged 14 he was using speed and disclosed that he would rob people so he could buy drugs. At this time the offender was incarcerated and disclosed that he spent approximately three years between the ages of 14 and 18 at various juvenile detention centres, eventually ending up at Emu Plains. The offender reported that during his juvenile incarceration he was sexually assaulted by a worker at Reiby on two occasions where he was sexually touched and penetrated. He disclosed a deterioration in his mental health following sexual assaults and reported using crystal methamphetamine (ice) by the time he was 16. At the age of 19 began using heroin and commenced gambling. He used drugs daily and gamble when he was under the influence of drugs. The offender reported he has been incarcerated for about 10 of the last 15 years of his life. During his time in custody as well as being sexually assaulted he has been the victim of physical assaults and witness a number of stabbings and other violent assaults.

66. The offender reported that he had consumed illicit substances for most of his life. He began using drugs frequently by the age of 13. His drug use escalated from that point on and he has spent 10 years of his life since then in custody. He told the psychologist he engaged in erratic and reckless behaviours in order to stay alive and to feed his drug. He described committing crime to survive. He felt abandoned, physically, sexually, and emotionally neglected throughout his life. The offender experienced deprivation and neglect during his childhood and adolescence.

67. The psychologist administered a number of psychological assessments during his interview of the offender. The results of the tests administered disclosed that the offender suffered severe depression, anxiety, or stress. In addition, he returned a score in the “severe” range for PTSD. The psychologist also diagnosed offender as presenting with symptoms consistent with complex PTSD, ADHD and substance dependence disorder (in remission). He opined that these psychological disorders were active at the time of the index offences. Further, the psychologist was of the opinion that the offender’s severe psychological disturbance and drug addiction had its genesis in his childhood neglect and abandonment which was exacerbated by his sexual abuse whilst in custody as an adolescent.

68. In respect to the offender’s prognosis, the psychologist noted the offender acknowledged and accepted responsibility for his wrongdoing. He expressed regret and remorse, and disclosed that he wished he had never been involved in the offending. The psychologist was of the opinion that the offender has taken responsibility for his actions and endeavoured to make significant changes. The offender himself acknowledged the need to work on his ability to manage his emotions, reduce his impulsivity, and continue to remain abstinent from illicit drug use. He reported insight into the correlation between his poor mental health and addiction to drugs, and his offending behaviour. The offender disclosed that he had been abstinent from the use of illicit substances for more than two years at the time he spoke with the psychologist.

69. The psychologist recommended a treatment plan including psychiatric assessment and treatment, including pharmacological treatments to address depression and anxiety, as well as one-on-one psychological therapy to address PTSD symptomatology and cognitive behavioural therapy to address his anxiety and impulsivity. The psychologist was of the view that such treatment and intensive psychiatric and psychological therapy should continue for about two years.

70. Whilst I accept the submissions made by the Crown that I should exercise significant caution in consideration of the offender’s particular subjective circumstances as disclosed by him to the psychologist as reported in the report dated 19 March 2024; I note no effort or application was made by or on behalf of the Crown to cross examine the psychologist or object to the tender of the report. As noted previously ultimately the issue is the weight I give to the offender’s assertions to the psychologist as reported by him in the report. I am of the view that the description of the offender’s childhood by him, his leaving home at the age of about 10 and thereafter being effectively homeless, in conflict with law enforcement and addicted to illicit drugs by the age of about 13 as well as his consequential complex mental health issues do act in a way to reduce, to some extent, the offender’s moral culpability.

71. Counsel for the offender submitted the court would find that the offender’s moral culpability is reduced following the principles of Bugmy.

72. Whilst it was conceded by the offender in normal circumstances self-induced intoxication or addiction to illicit drugs is not a mitigating factor on sentence except in unusual circumstances, I believe caution needs to be exercised so as not to permit that legislative prohibition to deny sufficient consideration, in this case, of the offenders complex mental health issues which I am satisfied arise from his traumatic childhood experiences as he disclosed, when they are so closely related to his abuse of prohibited drugs over many years, commencing when he was a child.

73. Whilst I am not persuaded that the offender’s complex mental health issues, themselves a consequence of his childhood experiences of violence, domestic violence, abandonment and sexual abuse as an adolescent can be said to be causative (in its narrow sense) of the offending, that is not to say these factors could not play some contextual role in how it was the offender came to be involved in the commission of the offences; and therefore should be given consideration in that sense.

74. As I understand the Bugmy Factors as they are referred to, consideration is extended to an offender by reducing the moral culpability of an offender to whom the factors apply because the criminal law accepts that because of the deprivations and other experiences suffered or witnessed in formative years, a person has a distorted or unrealistic and/or an incomplete or limited or very little, if any, real understanding of what is morally wrong or unacceptable. Once it is established on the evidence that the “Bugmy factors” are enlivened it becomes a question of what weight attaches to those factors in reducing the moral culpability of the offender.

75. I am satisfied having regard to the presence of those factors, and the impact they have had upon the offender’s emotional and psychological development, his resultant mental health and drug addiction issues, that the otherwise central consideration in sentencing for offences of this kind, namely, general and specific deterrence, denunciation of the conduct, and protection of the community need to be moderated in the circumstances of this case. In other words, I am satisfied that the moral culpability of the offender having regard to his childhood history of deprivation, violence, abandonment and sexual abuse warrants a moderate reduction.

Section 21A Factors

76. Both counsel for the offender and the crown identified a number of relevant s 21A factors. The offender has a record of previous convictions for serious matters, including offences of discharging a firearm. The Crown does not submit the offenders record of previous convictions amounts to a matter of aggravation in accordance with s 21A(2)(d) CSPA, but rather, disentitles him to the leniency that may be afforded to an offender absent such a criminal record. This submission was conceded by counsel for the offender. Notwithstanding has prior offence of firing a firearm in a manner likely to injure, this offence was committed in 2013 when the offender was a juvenile. His history of convictions since that time reflects less serious offending, notwithstanding some convictions have resulted in the offender being sentenced to full-time incarceration.

77. It was submitted by both the Crown and on behalf of the offender that he has entered pleas of guilty as earlier observed in these reasons. Both the Crown and counsel for the offender referred to s 21A(3)(k) CSPA. Those pleas of guilty will attract the discount on what would otherwise be an appropriate sentence for the individual offences, in accord with s 25D CSPA.

Remorse

78. The offender has expressed remorse in his letter to the court dated 20/03/2024. He is reported by the psychologist Sam Albassit as expressing remorse, acknowledging his wrongdoing, regret, and shame at his offending at [43] in the report. These expressions of remorse and acknowledgment of his responsibility and guilt are consistent with the statements made by the offender’s partner, April Ketley in her affidavit, dated 20/03/2024 tendered in the sentence proceedings without objection. I note that the offender states that he has been abstinent from illicit drugs for the time he has been in custody. He has consistently stated his desire to remain abstinent and engage counselling and rehabilitation. I am satisfied his expressions of remorse and desire to undertake change are genuine.

Prospects for rehabilitation

79. The offender has been addicted to illicit drugs since his early teenage years. The complexity and pervasiveness of his drug addiction is inextricably entwinned in his poor mental health, notably his depression and anxiety, PTSD and complex PTSD all opined to have their genesis in his abusive and abandoned childhood. The offender himself concedes his need for longer term and ongoing mental health and illicit drug treatment and rehabilitation. He states he has been abstinent of illicit drugs since being in custody, now more than 3 years. I am satisfied accepting the caution urged by the crown, that the offender has some prospects for a positive reintegration into the community in the future. The evidence discloses that he is able to return to live with his partner Ms Ketley upon his release, he is amenable to ongoing counselling and treatment, and he has now been abstinent from illicit drugs for an extended period. On this basis I am guardedly optimistic as to the offender’s future.

Section 3A factors – Purposes of Sentencing

80. In submissions at each sentence hearing, the Crown asserted that the facts and circumstances of the offences calls for significant punishment to be imposed, to denounce the offender’s conduct and to deter other like-minded offenders and to extract retribution for the harm occasioned to the victims. The Crown submitted in sentencing for offences such as these, general deterrence and denunciation have a significant role to play having regard to the offender’s lengthy criminal history, including a prior offence of gun violence which also gives to the need for a sentence giving proper voice to specific deterrence of the offender.

81. Both Mr Lang and Mr Smith on behalf of the offender conceded offences of this nature ordinarily attract a substantial punishment, and a significant degree of deterrence and denunciation are required. However, both submitted an array of factors were present (as identified) that in combination act to reduce the offender’s moral culpability. Both submitted the presence of those subjective features reduce the need to emphasise factors of denunciation and deterrence and punishment in sentencing the offender. Further it was submitted that upon proper reflection of the offender’s conduct, his role within the offending in respect to both the accessory after the fact to the robbery in company armed with a dangerous weapon offence as well as the accessory after the fact discharge firearm with intent, the role of the offender was limited to that of an accessory after the fact, which offences attract a substantially lower maximum penalty than the principal offence. The offender has gained some insight into the causes of his offending and the impact of his offences on the victims, as well as genuine remorse. It was submitted these features of the offending, and the offender reduced the need for a sentence emphasising denunciation, deterrence, and protection of the community.

82. I am satisfied that the offenders childhood experiences of significant neglect, physical and sexual abuse and parental abandonment as reported, contributed to his early use of and addiction to illicit drugs including methamphetamine (ice), and heroin. His ongoing itinerant lifestyle which regularly involved being homeless, social isolation, and complex mental health issues, including severe depression and anxiety, PTSD, and complex PTSD, contributed in some way to his offending, and more to extricate himself from it. The “Bugmy factors” identified, I am persuaded place his offending into the context of the interrelationship between his childhood and adolescent experiences, ongoing mental health issues, and the offending such that the need for a sentence that emphasises denunciation, deterrence and protection of the community is reduced, albeit moderately. Whilst I am satisfied that an offender’s drug addiction per se should not be seen as a mitigating feature on sentence, the particular circumstances of this offender, his neglected, abusive, and abandoned childhood; I am satisfied led to his itinerant lifestyle, and effective homelessness at age 13 and illicit drug use and addiction in those circumstances in his early adolescence.

83. I am satisfied having regard to the presence of the offender’s addiction to drugs, but more importantly his young age at the time his addiction arose, and the impact this had upon the offender’s emotional and psychological development, culminating in serious and entrenched drug addiction in his adolescence, coupled with his complex mental health issues which also had their genesis in his neglected childhood, both now and at the time of the offence, that the otherwise central considerations in sentencing for offences of this kind, namely, general and specific deterrence, denunciation of the conduct, and protection of the community need to be moderated in the circumstances of this case. In other words, I am satisfied that the moral culpability of the offender having regard to his childhood history and his poor mental health as identified, and drug abuse commencing when he was only 13 years old warrants some reduction in the offender’s moral culpability, and some amelioration in the otherwise appropriate sentence. That is not to say that deterrence both general and specific, denunciation, and protection of the community do not remain relevant considerations in sentencing the offender as has been urged by the Crown.

84. Any assessment of an offender’s moral culpability includes both consideration of the objective seriousness of the offence but also extends to a consideration of some of the personal circumstances, including circumstances which may affect the offender’s capacity to reason, or which may have impacted upon his capacity to mature and develop socially, or to control their conduct through lack of effective impulse control or by reason of other psychological fragility or addiction to drugs. Commonly this may include poor mental health as well as a background of social and familial deprivation. It is apparent in the circumstances of this offender and the offending that upon leaving home as a child he soon became addicted to illicit drugs, including ice and heroin, which commenced when he was about 13, and I accept was a material factor in the offender being involved in those circumstances that gave rise to the offences, and his documented criminal history generally.

85. I am also satisfied that the offender has gained some insight reflected in his letter to the court, and disclosures to the psychologist as reported in the psychological report tendered on behalf of the offender; setting out his remorse and accepting responsibility and the offender’s motivation to undertake treatment and counselling. That is not to say factors of deterrence, punishment and denunciation of the offender’s conduct will not play some role in the process of instinctive synthesis I engage in arriving at an appropriate sentence herein. The impact of the principal offending on the victims is serious, the offending of the offender, particularly his being an accessory after the fact to the discharge firearm offence is objectively serious and requires that a significant sentence of imprisonment is to be imposed, albeit those purposes of sentencing contained in s 3A of the CSPA, notably deterrence, denunciation and protection of the community as identified may be of moderately lesser significance.

86. It should be noted that a strong subjective case, even one as compelling and frankly deplorable as this offender’s is, must not result in a sentence which is not properly reflective of, or which is disproportionate to the objective seriousness of the offending: Clark-Jeffries v R [2019] NSWCCA 56 per Bellew J at [45]. As the Crown has appropriately submitted, there is an issue of general and specific deterrence, denunciation, and protection of the community to be addressed in the sentence. Ultimately the Crown submitted that the only appropriate sentence was one of full-time incarceration. This submission was appropriately conceded by Mr Lang and Mr Smith on behalf the offender. When one has proper regard to the purposes of sentencing no penalty other than a substantial sentence of full-time imprisonment is appropriate in the circumstances of these offences and this offender.

Totality/commencement of sentence

87. As noted the offender has a relatively lengthy history of criminal convictions. He was arrested and bail refused in respect to the offences of 26 September 2021 and 7 October 2021 on 7 October 2021, and he has been in custody bail refused on those offences since that date. He was subsequently charged, and bail refused for the offence of 5 April 2021, the accessory after the fact to the armed robbery offence on 4 July 2022. He has been in custody referrable to the offences for which he is to be sentenced since 7 October 2021. The Crown submitted that the totality principle applies, insofar as the offender is to be sentenced for numerous offences. That principle requires that the effective sentence imposed on the offender represents a proper period of incarceration to represent the total criminality: R v AEM [2002] NSWCCA 58 at [69]. The ultimate sentence imposed should therefore bear reasonable proportionality to the objective gravity of the offences: ZA v R [2017] NSWCCA 132.

88. The Crown submitted there should be some degree of accumulation as between the offences, as they represent offending against separate victims, and involve discrete acts of criminality. The Crown submits, some accumulation of the sentences to be imposed for each offence is required. In Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27], Howie J addressed the relevant principles when determining the issue of concurrency as follows:

“The issue is determined by the application of the principal of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, then sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partially cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality”.

89. It was submitted on behalf of the offender while there were separate victims, and the offending represented discrete acts of criminality, there should be some degree of concurrency between the sentences to be imposed for the individual offences to give proper effect to the principle of totality. The offender has been bail refused referable to the current offences since 7 October 2021. Whilst it is accepted the offender was charged and bail refused on the two separate dates earlier identified, the commencement date of any sentence to be imposed should commence on 7 October 2021 and the total sentence to be imposed may incorporate a large degree of concurrency between the individual sentences for each offence.

90. Relevantly s 24 of the C (SP) Act 1999 states that in sentencing an offender, the court must take into account:

“(a) any time for which the offender has been held in custody in relation to the offence…”

Section 47 (2) of the C (SP) Act states:

“(2) A court may direct that a sentence of imprisonment-

(a) is taken to have commenced on day occurring before the day on which the sentence is imposed….”

s 47(3) states:

“(3) In deciding whether or not to make a direction under subsection (2)(a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates.”

91. I am satisfied with proper regard to the principle of totality and with proper regard to the obligation imposed on the sentencing court by s 47(3) CSPA it is appropriate to backdate the sentence to be imposed herein to 7 October 2021.

92. Given that there are 5 offences for which the offender is to be sentenced, it is my view that this case lends itself well to the imposition of an aggregate sentence. I have come to this conclusion having regard to the principles of totality. In Osman v R [2020] NSWCCA 78 the Court of Criminal Appeal, per Lonergan J at [53] and following (with whom Johnson and Price JJ agreed), set out the following relevant principles in respect of totality. In summary they are:

i. Whenever a court sentences an offender for multiple offences it is necessary for the judge to ensure that the aggregation of all the sentences is a “just and appropriate measure of the total criminality involved”.

ii. the need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences arises for at least two reasons. First is that the severity of a sentence is not simply the product of a linear relationship. Severity may increase at a greater rate than an increase in the length of a sentence. The second is the proposition that an extremely long total sentence may be “crushing” upon an offender in the sense that it will induce a feeling of hopelessness and impact adversely on such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, an offender may not be entitled to the element of mercy entailed in adopting such a constraint.

iii. a sentencing Court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the court to avoid any suggestion that what is in effect being offered is a discount for multiple offending.

93. Given all the circumstances in the present offences, I am satisfied there must be some degree of accumulation in the sentences imposed. The offences involved different victims, occurred at different times and places, and involved separate acts of criminality. The culpability of the offender from one offence I am satisfied cannot fully embrace his culpability for the other.

Pleas of Guilty

94. The offender pleaded guilty to the Count 1 offence of accessory after the fact robbery in company armed with a dangerous weapon offence in the District Court on 2 February 2024. Accordingly, and as previously noted he is entitled to a discount of 25% on what would otherwise be an appropriate sentence having regard to s 25D(3)(a) of the CSPA. This is agreed between the parties having regard to the particular circumstances in which that plea was entered. In respect to Count 2, that is, the offence of accessory after the fact to discharge firearm with intent to cause GBH, this plea was only entered after the commencement of the trial, but on the day that the offence was added to the indictment as an ex-officio count. It was agreed between the parties and I accept that the appropriate discount in those circumstances is a 5% reduction in accord with s 25D(4) which in the particular circumstances of this plea, disentitles the application of s 25D(3) CSPA: see R v Doudar [2020] NSWSC 1262 at [47] – [68]. In respect to the remaining offences dated 07/10/2021, involving the possession of the unauthorised prohibited pistol, it is agreed between the parties, and I accept that a discount of 10% arises from the guilty plea being entered more than 14 days prior to the trial (s 25D(2)(b) CSPA).

Covid 19

95. It was submitted on behalf of the offender that a portion of the period he has spent in custody on remand occurred during the Covid 19 pandemic. Counsel asserted on behalf of the offender that correctional centres imposed a series of preventative measures in response to the serious health implications posed by the pandemic to prisoners. This made the experience of custody more onerous. Measures utilised by corrective services against the spread of the virus included extensive quarantine and isolation periods, including when inmates are transferred between correctional centres, increased “lock-ins”, the suspension of in-person family visits and the suspension of counselling, treatment, and rehabilitative programs. The Crown did not take specific issue with this submission. Notwithstanding the restrictions imposed on prisoners arising from the pandemic have passed and had largely passed in late 2021/early 2022, I will consider the impact of these restrictions for that period of the offender’s pre-sentence custody as part of the instinctive synthesis.

The indicative sentences and the total aggregate sentence

96. Given I intend to impose an aggregate sentence is necessary that I note indicative sentences I would have regarded as appropriate had I not determined to proceed in this way. Section 53A(2)(b) of the CSPA also requires that the indicative sentences are to take into account relevant matters under Part 3 of the Act, in this case the discount for the pleas of guilty, and in respect to Count 3, that is, the offence of possessing an unauthorised prohibited pistol which attracts a SNPP, an indicative NPP; I will do so now.

Count 1 – Accessory after the fact robbery in company armed with a dangerous weapon - a sentence of 12 months imprisonment less 25% to reflect the plea of guilty, making an indicative sentence of 9 months.

Count 2 - Accessory after the fact discharge firearm with intent to cause GBH, taking into account the Form 1 offence (Accessory after the fact discharge firearm with disregard for public safety) a sentence of 3 years and 2 months imprisonment less 5% to reflect the plea of guilty, making an indicative sentence of 3 years (rounded down).

Count 3 – Possess unauthorised/prohibited pistol, taking into account the Form 1 offences attached, a sentence of 2 years 10 months, less 10% for the guilty plea, making an indicative sentence of 2 years 6 months (rounded down). As this is an offence that attracts a SNPP, I impose an indicative NPP of 1 year 8 months.

Count 4 – Possess firearm subject to FPO – a sentence of 1 year 6 months less 10% to reflect the plea of guilty, making an indicative sentence of 1 year 4 months imprisonment (rounded down).

Count 5 – Acquire ammunition subject to a FPO – a sentence of 1 year 6 months less 10% to reflect the plea of guilty, making an indicative sentence of 1 year and 4 months imprisonment (rounded down).

97. I have finally concluded that the appropriate total aggregate sentence of imprisonment is one of 4 years and 6 months.

98. In respect to each of the offences before the court by virtue of s 166 Criminal Procedure Act, 1986; having regard to the applicable maximum penalty in relation to each, being a fine only, and the period of time the offender has spent in custody to date for the related offences, upon conviction for each pursuant to s 10A CSPA I make no other order.

Special circumstances

99. Having accepted that the only appropriate penalty is a sentence of full-time imprisonment, both Mr Lang and Mr Smith, counsel for the offender submitted the court should make a finding of special circumstances. Each based that submission upon the offender’s need for a longer period of supervised parole and intensive support in the community as identified in the treatment plan in the psychological report of Sam Albassit, and the multitude of complex psychological issues, including the offender’s complex mental health issues, drug addiction and his progress towards rehabilitation and abstinence.

100. In submissions the Crown cautioned against “double counting” those factors identified that act to reduce the offender’s moral culpability, as themselves grounds for finding special circumstances to vary the statutory ratio between the non-parole period and the total sentence. This submission of course is recognition that the discretion to vary the statutory ratio is limited such that the non-parole period adequately reflects the criminality involved in the offence: R v Simpson (2001) 53 NSWLR 704. The Crown, however, concedes the offender may benefit from a longer period of supervision, noting the presence of a series of complex and pervasive psychological diagnoses as reported in the psychological report.

99. What constitutes special circumstances vary from case to case and is a discretionary finding of fact. The primary consideration in such a finding should be the length of the minimum period of actual incarceration that is required to encompass the full range of issues relevant on the sentence of the offender, and I must avoid counting again features of the offender’s subjective case I have taken into account in fixing the total aggregate term. Notwithstanding the existence of special circumstances, I am not permitted to reduce the non-parole period below what is necessary to punish the offender and act as a deterrent to her and others.

100. Generally, the reform of the offender will often be the purpose in finding special circumstances, but this need not be the only purpose. Here I am satisfied that there is a combination of factors that in my view warrant a finding of special circumstances. Those factors include the clear need for an extended period of closely supervised treatment and counselling on parole to address the offender’s complex mental health issues, and his addiction to illicit drugs. I am satisfied these factors warrant a finding of special circumstances.

101. I have concluded that the actual period the offender should serve full-time custody is 3 years and 2 months imprisonment.

Orders

104. The orders I make in this matter are as follows:

1. In respect of each charge the offender is convicted.

2. Pursuant to s 53A of the CSPA, you are sentenced to an aggregate term of imprisonment consisting of a total term of 4 years 6 months and a non-parole period of 3 years and 2 months, each of which are to commence on 7 October 2021.

3. The indicative sentences are as noted earlier in this judgement.

4. You will be eligible for release on parole on 6 December 2024 and I recommend such release.

5. Your total sentence will expire on 6 April 2026.

**********

Decision last updated: 07 October 2025