R v Smith, Hookey and Dates

[2009] NSWDC 215

CITATION:	R v Smith, Hookey and Dates [2009] NSWDC 215
HEARING DATE(S):	08/04/2009
JUDGMENT DATE:	23 June 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Leigh Smith: Escape Lawful Custody - sentenced to imprisonment 12 months Non parole period 3 months Darren Hookey: Escape lawful custody - sentenced to 11 months 1 week imprisonment - non parole period 3 months Steven Dates: Escape lawful custody - sentenced to 12 months imprisonment - non parole period 3 months. His Honour recommends to the Department of Corrective Services that each offender be housed at prison closer to family
CATCHWORDS:	Criminal Law - Sentence - Escape Lawful Custody - Minimum security prison - short period at large - lower level of criminality - clouded rehabilitation prospects for each offender - drug abusers - housed in prison remote from families.
LEGISLATION CITED:
CASES CITED:	R v Cuthbert (1967) 2 NSWR 329 R v Rushby (1977) NSWLR 597 R v Hayes [1984] 1 NSWLR 740
PARTIES:	Regina Leigh Wallace Smith Darren Hookey Steven Dates
FILE NUMBER(S):	2009/00003680; 2009/00003670
SOLICITORS:	Crown: Mr J May ODPP - Dubbo Defence: M/s S Carr - Aboriginal Legal Service.

Crown Appeal Dismissed:

JUDGMENT

1. Yetta Dhinnakkal is a correctional facility located 65 kilometres from a small north-western township of Brewarrina. Set on about 10,000 hectares it has no security fence. Young prisoners, frequently first time prisoners, usually Aborigines, are the main source of inmates. Prison routine is generally abandoned for a more therapeutic type of custody geared towards learning skills ranging from literacy, driving knowledge tests to driving farm equipment, fencing and the like.

2. Leigh Smith, Steven Dates and Darren Hookey were selected to be inmates at Yetta Dhinnakkal. It would seem none of them applied and none of them were asked whether they would like to go.

3. On 2 November 2008 each escaped together, driving in a white utility belonging to the Department of Corrective Services from the grounds of the facility. It goes without saying that none had permission to drive or be driven in the vehicle.

4. Today each is to be held accountable for his escape from Yetta Dhinnakkal and offences that occurred as a consequence thereof. As the sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence, before this court, committed by these offenders, in this community. That task requires an assessment of the objective criminality of the offence before the court. I will need to have regard to matters personal to each of the offenders. The starting point for such assessments requires me to make findings of fact from evidence before the court relating to both the offence and offender. Each of the offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly.

5. Before any sentence can be made there are technical questions relating to deterrence, discount, whether special circumstances are to be found, parity, s 166 matters and finally of course the ultimate term of imprisonment or other penalty to be imposed. None of that can be embarked upon until the primary facts are determined. What weight needs to be given to all of these matters against the imperative that all sentencing should have as it primary focus the protection of the community will also need to be determined, see R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

Facts

6. Two of the staff had seen the utility vehicle as it drove from the detention centre, down its driveway into the distance with its lights off. Those staff entered the office and noticed a cabinet containing the keys to the vehicle had been broken into. Police were immediately contacted. They spotted the vehicle at about 10.45pm near Brewarrina. By this time the escapees had been out for less than half an hour. By the time police turned around they had lost the vehicle.

7. It was next spotted by Walgett Police about an hour later. They followed at a distance. A second police vehicle arrived, activated sirens and pursued the vehicle through the streets of Walgett until it stopped in Wee Waa Street. Dates and Smith exited the vehicle. Hookey remained in the vehicle hiding. Once confronted by police Hookey immediately surrendered. On the other hand, Dates and Smith made good their escape from the Walgett police.

8. Early on 4 November the owner of Birdwood, situated on the Kamilaroi Highway, Walgett, heard his car started and saw it driving off past the house, down the two kilometre driveway to the Kamilaroi Highway. That vehicle was intercepted ultimately near Burren Junction and pursued until it ran out of petrol. Dates was the driver of the vehicle. Whilst driving that vehicle it had travelled at excessive speeds, sometimes on the incorrect side of the road and through two small townships without reducing speed.

9. Both Dates and Smith were arrested and returned to Corrective Services custody. On my calculation both had been absent from Yetta Dhinnakkal for no more than 36 hours. Dates was in possession of small quantity of cannabis when arrested. More importantly though he had never held a New South Wales drivers license and is currently disqualified from driving until 2016.

10. Steven Dates was serving a total sentence of eighteen months with a twelve month non parole period due to expire on 22 February 2010. Thus at the time of his offending he had fifteen months to serve before his earliest release date. Significantly he was serving imprisonment for driving whilst disqualified.

11. Leigh Smith was serving a total of one year and four month with a twelve month non parole period. His non parole period was due to expire on 11 July 2009. At the time of his escape he had about eight months to serve. His sentences were for assault.

12. Darren Hookey was serving a total sentence of three years, six months with a non parole period of two years, four months. His earliest date of release was 10 October 2009. At the time of his escape he had almost two years of custody left. He has a ride in stolen conveyance taken into account on a Form One as impacting upon the sentence he too is currently serving.

Objective Criminality

13. From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of each offender. So that is done by comparing objectively the criminality exhibited in this offence with criminality of offences of a similar kind, that is, other escapes. It is in this way that the objective seriousness of the criminality of this offence can be evaluated. The objective criminality has an important impact upon the overall sentencing outcome.

14. Escaping from Correctional Services custody is in essence an offence against the proper administration of criminal justice. To effect this escape damage, albeit minor damage, was done to government property. The mechanism used to achieve the escape namely, driving off in a motor vehicle, involved the commission of a further offence namely, riding in a stolen conveyance.

15. None of the prisoners was at large for any length of time, although both Smith and Dates committed further offences whilst at liberty, including driving riding in a stolen conveyance, a theft of another motor vehicle and entering inclosed lands.

16. Escaping from minimum security is a selfish self-centred offence. It puts pressure on prison authorities to toughen up the admission criteria to minimum security centres and rehabilitation programs available at those minimum security centres. Escapes have created a new classification, E, for prisoners who have escaped which denies them access to therapeutic rehabilitation programs. Each of these offenders will now have his classification marked accordingly.

17. While the offenders took car keys and vehicles, I do not from that fact alone, regard that as establishing that the offence was a planned one. The offender Hookey says he was uncomfortable being housed in such a remote location. His family is closer to the large population hub. He had not applied for classification to Yetta Dhinnakkal. He has an escape from juvenile custody on his record.

18. Dates had lived in Newcastle and Brisbane. He had not applied to go to Yetta Dhinnakkal. He too found it remote. His father had passed away in Brisbane as a result of a motor vehicle accident. His application to attend his father’s funeral was rejected. The Department asserts that the death of the father was unable to be confirmed by it, despite what it claims was extensive inquiries. At the time the offender was acting on a report from TV and information supplied by his mother.

19. I dwell on the issue because Dates still apparently holds some resentment towards the Department. Loss of liberty brings with it many problems such as Dates experienced, even though, had the inability of the Department to confirm the death of his father not been the problem, others would have been. Jurisdictional issues by taking him interstate, or possibly issues arising from an early escape on his juvenile record may well have prevented him from going in any event.

20. On 19 October 2008, three days after arriving at Yetta Dhinnakkal, Dates had failed a prescribed urine test.

21. The details of the event had not been disclosed in evidence, but I note the disciplinary hearing relating to the matter had not been finalised when he departed Yetta Dhinnakkal. I do not rule out that Dates appreciated that a potential consequence of this breach of prison discipline was a return to a more secure form of custody.

22. Smith’s family are from Victoria. He also felt remoteness from his family at Yetta Dhinnakkal. He says he would sooner be housed in Sydney. Again loss of liberty creates a lot of problems, including where a prisoner is likely to live.

23. In theory the punishment component of sentencing to imprisonment is meant to be restricted to a loss of liberty. In reality there are other components to punishment, including loss of choice as to locality of prison accommodation. There is no evidence before the court, other than coming from the offenders, as to the circumstances of their movement to Yetta Dhinnakkal. I have put to one side such knowledge as I think I have about prison classification and access to minority security prisons, on the basis that it may be outdated and is not of general knowledge, such as, for example, any undertaking made not to escape.

24. No prison officer was personally confronted by any of the offenders to effect the escapes, nor was any other prisoner recruited for any purpose associated with the escape. The offence was committed whilst in company, that adds to the criminality in that potentially more resources would have been needed to find and capture the offenders, and police may well have regarded themselves as being at greater risk from three escapees than from one.

25. These escapes fall though towards the lower end of the range. Some upper adjustment of criminality will need to be made to the sentences of Smith and Hookey for the extra time they were out of custody. There was further offending whilst they were out, but that has been separately charged. While there are s 166 certificates the sentence imposed in respect of the further offending will be concurrent, but the sentence for the escape must be cumulative to them.

Subjective Matters
Darren Hookey, Family Background and Relationships

26. Darren Hookey is a 22 year old Aboriginal raised in Parramatta. He is one of five children. His parents separated when he was eight. The father was a drug abuser and violent towards his partner. This offender had no contact with his father for the past six years. Upon separation the mother raised the five children. He is well supported by his mother and siblings.

Education, Skills and Employment History

27. He left secondary school at the age of fourteen while still in year nine. He truanted and was expelled. It would appear he has no trade, or other vocational training. His income stream, when released, is a government pension.

Drugs and Alcohol

28. Darren Hookey is a second generation drug abuser. His drug of choice is heroin, using daily since fourteen. Given his absence of vocational skills or experience, his primary method of funding drug use comes from criminal activity. Today he claims to have limited his consumption to heroin by smoking only. Interestingly he claims neither to smoke cigarettes, nor consume alcohol. Given that level of self-discipline, particularly within a prison environment, his prospects for rehabilitation from heroin would appear to be reasonable provided he was properly motivated. There are two prior attempts at drug rehabilitation, and his persistence in seeking rehabilitation must be a positive rehabilitation indicator.

General Health

29. So far as one can tell he presents as a relatively fit young man without any serious physical ailments that would impeded his rehabilitation progress.

Mental Health

30. There is nothing before the court giving any insight into Darren Hookey’s mental health situation. There is a mention though in the criminal history of the possibility of ADHD. I raise that only for those who may be interested in exploring it. I cannot take it into account on the material before me.

Character

31. For a twenty-two year old Darren Hookey cannot point to much he has accomplished. He presents as a young man who is a risk taker. He exhibits poor judgment skills, and is distracted from enjoying a full or rewarding life by serious drug abuse issues.

32. His first court appearance appears in 2002 at the Campbelltown Youth Drug Court. Thereafter he is before courts of summary jurisdiction frequently, including for serious criminal offences such as armed robbery with a dangerous weapon. The sentences he was serving at the time of his escape were for steal from the person and aggravated break and enter in company. They were the first instances of first instance penalties being imposed by the District Court.

Rehabilitation Prospects

33. There are two positive ones, the support of his family, and as I say his past interest in rehabilitation, although that may have been at the behest of the Drug Court. Whilst ever he is serving sentences in custody his rehabilitation prospects are poor. His antecedent record, to the extent that it can be regarded as a predictor of future behaviour, points towards recidivism.

34. His best prospects for rehabilitation are to be found in highly supervised structured programmes in the community, and his willingness to comply, or co-operate with administrators of those programmes. At the moment both appear to be remote possibilities. The first because of a lack of government funding, and government’s willingness so to do, and the second because of his risk taking personality, and his own personal unwillingness to do so. Frankly, his prospects of rehabilitation if not bleak are certainly clouded. It would appear his mother and family members are his strongest source of comfort in terms of rehabilitation.

Attitude to Offence

35. The offender has expressed contrition. It is clear, as with most risk takers, he did not think the escape through. His re-capture was inevitable, although not guaranteed to be as speedy as it was. He was always going to pay a substantial price for it. It is likely he now understand this, and that that is the basis of his regret. He classifies his acts as disrespectful. As I said, they are better classified as an offence against the administration of criminal justice.

Leigh Smith, Family Background and Relationships

36. Leigh is a single twenty-three year old Aborigine. His mother and younger brothers live in an inner city suburb of Sydney. He was born in Shepparton, one of five children. His parents separated when he was seven. He grew up in Redfern. He is close to his mother and siblings, although regularly they have disagreements. He too has not seen his father for seven years.

Education and Employment Skills

37. He left school aged fourteen. He appears to have no employment history. It would appear he has done no vocational training to enhance his skills in any area. His principal source of regular income is a government pension of some kind.

Drugs and Alcohol

38. He was drinking at the age of thirteen. He was binge drinking weekly. He was also using drugs at this age. His primary drug of choice is heroin, which he used daily until twenty-one. He has experimented with methyl-amphetamines. He claims his alcohol consumption is now monthly. He has experienced blackouts. Prior to his incarceration he was admitted to a detoxification unit in Surry Hills for seven days. This is another case of a young man distracted from leading a full and rewarding life by habitual drug abuse.

General Health

39. Leigh Smith presents as a young twenty-three year old male. Again so far as I can tell he enjoys reasonable physical health.

Mental Health

40. There is no material before me which permits of any mental health assessment.

Character

41. He is a young Aboriginal man who should have the world at his feet. Instead he presents with little education, no work skills, no work experience, well ingrained drug and alcohol problems, not yet motivated to deal with them.

42. He was first before the courts in 2000, when a fourteen year old, with steal from the person, and later the same year for possessing house breaking implements and goods in custody. The following year he was in trouble for car theft, as he was in 2002 and 2003. In 2004 he added break, enter and steal to his criminal repertoire. He continued his driving and car theft offences before the Local Court at Waverley, and in 2004 he was imprisoned for twelve months for resisting an officer in the execution of his duty, stealing motor vehicle, and receiving stolen property. He received nine months non parole from the Newtown Local Court for driving a stolen vehicle, and driving in a manner dangerous in 2006. That is in the past 60 months, or five years since he has been an adult, Mr Smith has spent, on my calculation, 35 months of those 60 in adult custody. That equates to fifty-eight percent of his adult life. By this time next year, assuming he is released when he is eligible, he will have spent sixty-one percent of his adult life thus far in custody. It seems to me this is an appalling and devastatingly empty way for a young man to spend his adult years. From where I sit it seems to me there must come a point where Leigh Smith will be prepared to take responsibility for the lifestyle he is leading and do something about it. Just in case he does not know, the lifestyle he is living is in gaol.

Rehabilitation Prospects

43. If this offender’s prior record is any indication of future behaviour his rehabilitation prospects will not be good. Added to that his long term drug and alcohol use habits, his lack of general education, vocation training and employment history, He does not seem at this point motivated to change. He has a poor history of co-operation with the only public funded rehabilitation resource, namely Probation and Parole, that he has used to date. There is nothing before me that suggests any commitment to change whilst in custody. Without any change in attitude by him his future prospects seem bleak. He needs intensive work by those skilled in rehabilitation programmes preferably within a community based setting. The only factor I can find in his favour is his strong support from mother and siblings.

Attitude to the Offence

44. Probation and Parole suggest he has no insight into the seriousness of his offending. That may be a difficult concept for him, as I earlier remarked, it is an offence against the administration of criminal justice. It is easier for someone in his position to understand the wrong of murder, rape and armed robbery, than it is of offences of this kind. He has pleaded guilty. He gave evidence of accepting responsibility for his offending behaviour. He understands that he will pay for his risk taking behaviour. He is not defiant, he is not recalcitrant about the offence.

Steven Dates, Family Background and Relationships

45. Steven Dates is the youngest of the three offenders, he will be twenty in just a couple of weeks. He has three siblings. His parents separated when he was four. His mother remarried and there are a further six children. Steven Dates complains that his step-father was physically and emotionally abusive towards him, another brother, and his mother.

46. He left home aged sixteen and resided with friends. He claims an influence upon his attitudes was witnessing his grand-father being assaulted by police. His own father is now deceased, an event that occurred at Bathurst in September or October 2008. I earlier noted he was denied access to the funeral.

Education and Employment Skills

47. In his evidence Dates said he had completed his Year 10 certificate, had obtained certificates in bricklaying, hospitality, and land management. There is no evidence of any work history, but he does want to go to Windsor where programmes are available.

Drugs and Alcohol

48. Dates reports drinking when aged fifteen to the extent of binge drinking several times a month. With the drinking he was consuming cannabis, which soon escalated to daily use. He does not report amphetamine, heroin, or cocaine abuse. Positively he expresses an interest in addressing his alcohol or drug issues.

General Health

49. He appears to be a fit young man of twenty. There do not appear to be any health issues that could complicate his rehabilitation.

Mental Health

50. There is no mental health profile, or personality profile before the court.

Character

51. He is a young, strictly speaking nineteen, but let us say a twenty year old man, spending his youth in single sex custodial accommodation. Within three months of his eighteenth birthday he was serving a non parole period of twelve months. He has finished his minority years serving time in juvenile detention. While he is still young, and still has some of his youth, he needs to wake up to what he is losing. He appears to have no employment history, limited social life, limited social skills, limited education and few, if any, acquired skills.

52. His criminal history began in 2004 with break and enter offences. There are many of his offences related to driving and car thefts. I understand he never held a driver’s licence yet he is disqualified from holding one till June of 2016. That date may well fade further into the future if there are habitual offender declarations still outstanding. Even though there is an extensive record most of his offending appears to have been dealt with by courts of summary jurisdiction. In March 2007 however he was before the District Court for an assault with intent to rob. For some reason not clear to me he appears to have been dealt with at law for this offence even though he was then fifteen going on sixteen when charged with the offence. He appears he was transferred to Kariong Juvenile Detention.

Rehabilitation Prospects

53. Again there is a history of re-offending, particularly by way of driving offences. The offender admits he is still resentful of the treatment of his grand-father received at the hands of police. He attributes his behaviour to this, and there does not appear to be any addressing of that issue by anyone through counselling of him, or him with them. He told Probation and Parole he was not sorry for his acts in escaping, again consistent with a lack of insight. He lacks work experience.

54. He has done the bricklaying certificate, the hospitality and land management courses and Year 10. In that sense he is better equipped than the other two, at least as a starting point.

55. He has real drug and alcohol issues. On the other hand he does have family ties to his mother and siblings. The absence of a driver’s licence will impede his employment prospects. His rehabilitation prospects are clouded, but given, at the least the course and eduction base, there is in my view some hope.

Attitude to Offence

56. He pleaded guilty to it. He gave evidence giving the reason for his unauthorised leaving of Yetta Dhinnakkal. While it would have been useful to explore the other potential reason, his departure is capable of explanation. At the time of the offence his emotions were raw about his absence from his father's funeral. That matter also does not appear to have been worked through by departmental officials, who, it would appear, may not have explored with him the work that they had done to try and confirm the father’s death, and explore with him the other issues which may have impeded him attending the funeral.

57. He did not present in the witness box as truculent or disrespectful. There appears to be a deal of honesty in his approach with the author of the pre-sentence report, and with that honesty it would appear a tinge of courage in expressing his view.

Plea Status

58. Each of the offenders pleaded before the Local Court, each is entitled to a full twenty-five percent discount for the utilitarian value of that plea.

Setting the Sentence

59. These are offences calling for deterrence. The incarcerated community takes a keen interest in sentences given for escape. It is important prisoners clearly understand any sentence given will be cumulative, not only upon existing non parole periods, but also upon any sentence given for offences committed whilst at large in the community. Parliament has prescribed this as a strong deterrent to would be escapees.

Maximum Penalty

60. The maximum penalty for escaping is ten years cumulative upon any existing non parole period and new offences being dealt with in any sentence hearing.

Section 166 Matters

61. I have determined to finalise the s.166 matters first. It appears to me from my reading of Division 7 of the Criminal Procedure Act that I may deal with s 166 matters at any time once the plea of guilty has been indicated to the charge before the court. In this case it is appropriate to do so because the indicted escape charge sentence must be cumulative to them.

Special Circumstances

62. In respect of Dates and Hookey the sentences they were serving appeared to be constructed so as to reflect a finding by the then sentencing judicial officer of special circumstances. That finding should be kept in place with subsequent cumulative sentences. In respect of all offenders the sentences are cumulative upon their existing sentences. To those existing sentences are added sentences for the s.166 matters. It is important the overall sentences therefore be adjusted by use of special circumstances so at very least a “normal” ratio between the minimum term and the balance of term are preserved. Further, all offenders are young men who will have served extended periods in custody.

63. Courts are required for young offenders to give weighting to rehabilitation where appropriate. Each of these is desperate for rehabilitation. Each of these offender’s prospects at rehabilitation are at best clouded. Full time custody while it may well serve other functions in sentencing is contra-indicated so far as rehabilitation is concerned. Rehabilitation is best achieved in a community setting, that can best be achieved by a finding of special circumstances.

Parity

64. Proper regard needs to be paid to parity making due allowance for the fact that Dates and Smith were out longer than Hookey. Since each offender is to be sentenced for offences committed whilst out that will be cumulative to the escape sentence, weighting of the sentence for escape on account of offences being committed will be more muted than it would be before such a requirement was imposed.

65. Steven Dates you are convicted of each of these matters that I am dealing with pursuant to s.166, that is being carried in a conveyance - that is the ute from the gaol - without consent, entering inclosed land - that is Birdwood - taking and driving the conveyance at Birdwood, possessing the prohibited drug cannabis, driving in manner dangerous, and driving whilst disqualified.

66. For the carried in conveyance these sentences have been reduced by twenty-five percent. I am not going to tell you what the original ones were, but these are they: carried in a conveyance, six months; enter inclosed lands, six months; take and drive conveyance, six month minimum term with a one month additional term; possess prohibited drug - that is the cannabis - one month; drive in a manger dangerous, six months minimum term with a three month additional term; and drive whilst disqualified, six months minimum term with a three month additional term.

67. All of those sentences are to date from 22 November 2009 and expire on 21 May 2010. The effect of that is that three months of it is concurrent, and three months is cumulative to your release date.

MAY: Excuse me, your Honour, I apologise for interrupting. In relation to the enter inclosed lands that maximum penalty is a $550 fine, and your Honour has imposed imprisonment.

HIS HONOUR: I thought that was fourteen years the maximum penalty.

68. All right. Enter inclosed lands conviction pursuant to section 10A - I am not going to fine him, he has got no wherewithal to pay a fine.

MAY: No, your Honour, just in relation to the conviction. My understanding of 10A was that your Honour found the offence proved but did not proceed to a conviction.

HIS HONOUR: No, well it is a conviction, but only a conviction. All right, all I am recording is a conviction.

69. In respect of the escape lawful custody I convict you that you on 2 November 2008 at Brewarrina being an inmate of Yetta Dhinnakkal did escape from lawful custody there. In respect of that offence I would have set an overall sentence of sixteen months, that has become one of twelve months because I have discounted it. I set a minimum term of three months, and a balance of term of nine months, and it must date from 22 May 2010 and expiring on 21 August 2010, and the balance of term expiring on 21 May 2011. I order your release on 21 August 2010. Effectively what I have done is set six months further on your non parole period.

70. Leigh Smith for the 166 matters, which is being carried in the utility, entering the closed lands at Birdwood, and being carried in that conveyance, in respect of each of those offences you are convicted. In respect of each of the first and last you are sentenced to six months imprisonment fixed term.

71. In respect of the enter inclosed lands I am doing no more than convicting you because again you are in no position to pay a fine and it seems to me cruel to ask it of you.

72. Those sentences are to date from 12 April 2009 and expire on 11 October 2009. Again the effect of that should be to add three months onto your existing release date.

73. In respect of the escape lawful custody, again I would have dealt with you exactly the same as Mr Dates, that is to say I would have given you a sixteen month overall sentence which I have reduced to twelve. I sentence you to a minimum term of three months and a nine month balance of term. Your three months is to date from 12 October 2009 and will expire on 11 January 2010. Your balance of term will expire on 11 October 2010, that is nine months on parole.

74. I order your release on 11 January next year. So again I have added six months to your sentence, your non parole period.

75. Darren Hookey, your being carried in a conveyance without consent is the 166 matter, in respect of that I convict you, and I would have sentenced you to eight months, it is six months because I have taken the discount in. That fixed term will date from 11 June 2009 and expire on 10 December 2009.

76. I think that what I have done there is what I have intended to do is accumulate by two months, right, to reflect the lesser criminality involved in your case. That is certainly my intention, if I got the dates wrong that is what I intended to do.

77. In respect of the escape from lawful custody I also convict you of that. I am not going to read it out, you know what I mean. And in respect of that again I have come to a - I cannot quite remember how I got it, I think it was fifteen months I must have started with, and I have come to a total term of eleven months and one week because I have discounted it by twenty-five percent, I think I started with fifteen months as distinct from the other. I put a three month minimum term to date from 11 December 2009 and expire on 10 March 2010, and a balance of term of eight months one week to expire on 16 November 2010.

78. I order your release, at least in respect of these sentences, on 10 March 2010. Your current release date is 10 October 09, and your present release date is 10/03/09, so I have added five months onto your non parole period.

HIS HONOUR: They may be returned to custody.

Can I just have the papers endorsed please? Mr Dates’ paper:

“The judge recommends that consideration be given by Corrective Services to placing him at Windsor Detention Centre.

In respect to of the other two they seek placement at Silverwater. The judge recommends that they be placed in Sydney closer to their family.”

LUNCHEON ADJOURNMENT

HIS HONOUR:

80. Mr Dates, it would appear that I have made some mistake. One, I did not disqualify you, and I have to do that. Now have I made some error with his dates?

MAY: Your Honour, there should be an extension of the sentences for Mr Dates and Mr Cooper in relation to the time that they were at large, that is two further days, when they should have been serving a non parole period but were not because they were at large in relation to the offence.

HIS HONOUR: So I have to add two days. I will have to do it pursuant to - is it 43 of the Crimes (Sentencing Procedure) Act, the slip rule?

HIS HONOUR: I will add two days on to each non parole period.

MAY: Not for my Mr Hookey, your Honour.

HIS HONOUR: But not for Mr Hookey.

MAY: No.

HIS HONOUR: How come - I got it right with him, did I?

MAY: He was out for less than twelve hours, your Honour. He was actually recaptured within the day.