R v Stavely

[2019] NSWDC 630

District Court

New South Wales

Medium Neutral Citation:	R v Stavely [2019] NSWDC 630
Hearing dates:	13 June 2019; 21 June 2019
Decision date:	21 June 2019
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Sentenced to a total term of imprisonment of 6 years; non parole period 4 years. Prisoner to be admitted to intensive drug and alcohol treatment program during course of sentence
Catchwords:	CRIME – in company rob while armed with dangerous weapon – black replica pistol – machete – joint criminal enterprise – breach of conditional liberty – vulnerable victims – lack of sophisticated planning – drug dependency as motivating factor – homelessness – ADHD – history of violence – guilty plea – remorse – ‘special circumstances’
Legislation Cited:	s 97(2) Crimes Act 1900; s97(2) Crimes (Sentencing Procedure) Act, 1999; s21A; s44; s3A
Cases Cited:	R v Thomson and Houlton [2000] NSWCCA 309 R v Henry [1999] NSWCCA 111 R v Way [2004] NSWCCA 131
Category:	Sentence
Parties:	Regina (Crown) Jason Mark Stavely (Offender)
Representation:	Counsel: Mr A Robertson (Crown) Mr R Rajalingam (Offender)
File Number(s):	2018/00256221
Publication restriction:	No

Judgment

1. Jason Stavely appears today for sentence in relation to an offence for which he was committed for sentence to this Court. The crime that he pleaded guilty to at the Local Court and continues to plead guilty in this Court was one of armed robbery with a dangerous weapon contrary to s 97(2) Crimes Act 1900. That carries a maximum penalty of 25 years imprisonment. The particulars of the charge are that he did rob William Taylor at Hunters Hill in the State of New South Wales of certain property, to wit $30,000 in Australian cash, the property of Hunters Hill Operations Pty Limited, whilst being then armed with a dangerous weapon, to wit a black pistol firearm. I pause for a moment to point out that in fact the facts allege that he robbed the people at the hotel of $32,000 in cash, however the charge is particularised as it is and no issue was taken to the particulars when I raised them with the parties on the last occasion when the matter was before me.

2. The prisoner is guilty of the crime charged because of his participation in a joint criminal enterprise to commit the crime charged. The reality of the situation is, as I will explain in a moment, the prisoner himself was armed not with a pistol, or a replica pistol, as it is to be accurately described but with a machete that had a blade about 40 centimetres long and a handle about 12 centimetres long but particulars in the charge arise out of his co-accused’s possession of the relevant dangerous weapon, as it is relevantly defined, in the course of this joint criminal enterprise.

3. The prisoner is now 38 years of age, being born in 1980 he would turn 39 in December this year. At the time of the commission of the offence with which I am concerned he was on parole. I will come back to that aspect of the matter shortly. There is, however, before I get to the agreed statement of facts a wider factual context for the sentencing of this prisoner and the wider factual context concerns the activities of Scott Barrie, the person that I have referred to as the “co-accused” who I accept on the available evidence was the person who organised this armed robbery and who provided the relevant weapon that was wielded by this prisoner and was carrying the replica firearm.

4. There are a number of reasons to accept the prisoner’s evidence in that regard. Firstly, it is consistent with the Agreed Statement of Facts. Secondly, to be brutally frank about it, I was impressed to the extent that one can be impressed in the circumstances with the evidence of the prisoner; I thought he was entirely frank. He made a number of concessions in cross-examination by the Crown Prosecutor about aspects of the circumstances of his supervision on parole and was direct in his answering of questions. But there are more substantial reasons to accept his evidence because it seems to me to be corroborated or supported, to use the proper expression, by some aspects of the circumstances of Mr Barrie.

5. Mr Barrie’s criminal history reveals that previously, that is before this armed robbery, he had been convicted and sentenced to terms of imprisonment for robbery in company whilst armed with a dangerous weapon and was sentenced in relation to those matters in 2012. As I calculated he was on parole for those offences when this offence was concerned. But I have an Agreed Statement of Facts as it is described and it will be produced as I understand it at Mr Barrie’s sentencing proceedings later next month. In fact the copy that I was given was signed at least by the Crown Prosecutor and the lawyer for Mr Barrie and is dated 6 March 2019.

6. Those agreed facts of course include the facts in relation to the robbery, if I could call it that, of the Hunters Hill Hotel. But what they reveal is that Mr Barrie was involved in a number of robberies and other crimes over the period of time either side of the robbery at Hunters Hill. For example on 10 October the prisoner stole a Mazda sedan from a residence at Marrickville which subsequently he destroyed by fire on 29 October 2017. He has admitted to, whilst driving that Mazda sedan, committing a robbery of the Cockatoo Hotel at Petersham and that occurred, it seems, in the morning and he received $1,200 from that robbery. He was, by the way, I should point out handling and threatening people with a “pistol”.

7. Furthermore on 22 October 2017 he conducted a robbery of the Kauri Hotel at Glebe, this is a matter to be taken into account on a Form 1 sometime around about 9.30. He, in this robbery, threatened the occupants of the hotel with a “pistol” and stole $10,781. He then on 29 October 2017, driving the Mazda that was to be torched later that day, robbed the Lansdowne Hotel at Chippendale. On that particular occasion he struck a woman with the butt of the firearm in his hand causing two cuts to her head and stole approximately $10,000 in cash whilst armed with what was described as a pistol, he then was involved in the armed robbery at the Hunters Hill Hotel, that concerns this prisoner on 9 December 2017 and then for good measure, having robbed the Hunters Hill Hotel of between 30 and 32,000 dollars in company with Mr Stavely on 18 March 2018, he endeavoured to rob the Golden Barley Hotel but was unsuccessful, this time using a motor cycle which I would understand was the means of transport for himself and this prisoner in the Hunters Hill robbery.

8. The same morning, as he endeavoured to rob the Golden Barley Hotel, in fact some 20 minutes later, he robbed the Lady Hampshire Hotel in Camperdown armed with a black pistol and a machete and stole $10,000. Then he came back to the Golden Barley Hotel on 6 May 2018, armed with a machete and black pistol identical in description to the pistol used for the Hunters Hill Hotel, and stole the sum of $12,000. He was arrested subsequently on 10 May 2018. Various items were found including the “black pistol”. The black pistol in question was a firearm for which he did not have a licence or permit to use. I have cited the facts in relation to that prisoner to put the offending of this prisoner in some perspective and also the evidence that he gave.

9. To come back to the facts of this matter, this prisoner and Mr Barrie, riding on a motor cycle arrived at the Hunters Hill Hotel as I would understand it, either as it was closing or close to its closing time in the very early hours of the morning of 9 December shortly after midnight, they came on the motor cycle, the glass panel of the door was kicked in. The prisoner told me that he was wearing socks as a type of glove as he handled the machete that he had been provided by Mr Barrie and he cut himself in the course of entering the premises. The prisoner and Mr Barrie wore motor cycle helmets and sought to disguise their faces and as I said Mr Barrie was armed with an imitation black pistol. The machete I have already described.

10. The security guard was threatened as was another member of the staff, Mr Barrie took the lead consistent with his experience in conducting robberies as the prisoner held the machete over his head in a threatening manner, Barrie went through the gaming area, obtained a bag, took cash from the register and from the floor, where some of it had been dropped, and also collected a number of poker machine “stackers” and hotel accounts disclosed the sum of money between 30 and 32,000 dollars as missing and the prisoner and Mr Barrie then walked back through the hole in the glass door. I should point out that it was Mr Barrie who rushed toward the security guard, holding the firearm pointed at his head, saying the words, “get on the floor ... get on the floor now”. Then the two men decamped.

11. Police undertook a professional investigation. The prisoner apparently dropped the machete that he had been armed with and DNA testing of the machete handle developed a profile matching that of the prisoner. There were certain investigations that were really centred on Mr Barrie rather than this prisoner leading ultimately to his arrest on 10 May 2018 and this prisoner was arrested on 20 August 2018. He was stopped by police for not wearing a helmet and after checks were found the warrant was found in existence for his arrest and thus he came into custody. He has been in custody continuously since 20 August 2018 and I will date any sentences I foreshadowed from that date.

12. One of the matters that I take into account, although it does not ultimately effect what is the appropriate sentence is, that, as I said, the prisoner committed this offence whilst he was subject to parole arising out of an order made in the District Court on 13 February 2017. On that date he was convicted and sentenced in relation to the ongoing supply of prohibited drugs and sentenced to a term of imprisonment of two years commencing on 6 April 2016, concluding on 5 April 2018 with a non-parole period of 12 months, that meant from some date after 5 April 2017 he was on parole and relevantly he was on parole at the time of the commission of the offence with which I concerned although that is a serious matter and cannot be spoken about in any other terms. I note the offending for which he was on parole was not as it was with Mr Barrie identical or similar offending with which I am now concerned.

13. In relation to the issue of his parole, I have breach reports from the Parole Officer who was supervising him and they reveal that at the time of the commission of the offence with which I am concerned it was recommended that the prisoner’s parole be revoked for a failure to respond to supervision or co-operate with the Parole Authority and its officers. He had missed reporting dates and he had admitted to me in his evidence, particularly in the cross‑examination of the Crown that he had not been frank with the Parole Officers as to matters that contributed to his offending on 9 December 2017. The matters he was not frank about which were matters that directly contributed to his offending, not that they are excuses I hasten to say, were primarily that he lost his employment in September and he was at the time of the offending in December homeless. He had in the months before the offending returned to the use of prohibited drugs, particularly amphetamines. He had admitted, he said to me, to the Parole Officer that he was using cannabis but he had not fully disclosed the use of the amphetamines.

14. The prisoner’s criminal history does not entitle him to any particular leniency. I note he has a finding of guilt for robbery in 1995 but to my mind, given his age at that time, he would have only been 14 years of age, and given the number of years that have elapsed between that offence and the matter with which I am concerned, in reality is not a matter of great significance. He was placed on probation and having regard to some history that he has provided it seems to be an offence committed in the context of the peers that he associated with. The prisoner, as he reported to the psychologist, had a long history of disrupted education. Disrupted in a couple of respects. Firstly his father had separated from his mother shortly after his birth and the prisoner, on two occasions, when he was 10 and when he was 14, had gone to live with his father who showed little interest in him, his father living away from Sydney. It seems the prisoner’s mother had been a strong support throughout his life but such was that the situation at the time she obviously thought it was a good thing for him to be in contact with his father but it did not work out well. Furthermore, the prisoner was diagnosed, in his teenage years, with attention deficit hyper-activity disorder or ADHD for which he was provided with medication as I understand it and some treatment which helped him in the latter years at high school to complete year 10. That ADHD would appear to have been either undiagnosed or untreated however for some years.

15. After that appearance in the Children’s Court consistent with the analysis I have made of lack of significance in this sentencing exercise and after the prisoner had received a 12 months’ probation for that offence, the prisoner did not appear in any court for a period of 12 years. That period of 12 years was consistent again with what is apparent from the personal history he has given of some stability in his domestic life, he entered into a partnership at about the age of 18, and the prisoner obtained some qualifications which enabled him to find full time employment and he was able to manage full time employment through those years.

16. Unfortunately in 2007 in February he committed offences which appear in their terms to be related to domestic violence matters, or domestic discord matters, he was found guilty of damaging property, intimidation, common assault and contravening an apprehended domestic violence order and received various orders of imprisonment which were suspended under then s 12 and a s 9 bond for a period of time. He was in breach of those orders in 2009 and was called up and for the first time in 2009 was sentenced to terms of imprisonment in two instances of six months. He then had a break in his criminality until 2011 when he was sentenced in relation to another breach of an apprehended domestic violence order. He was called up in relation to that matter and he was, although the order is a little incomplete, apparently sentenced to nine months imprisonment suspended on 20 August 2012.

17. His criminal history also reflects his use of prohibited drugs which may have contributed to the domestic discord. He was convicted of possession of prohibited drugs on 19 December 2011 and fined $200. He was convicted of common assault and wilful and obscene exposure at the Newtown Local Court on 28 February 2012, he was placed on a good behaviour bond for 18 months in respect to the common assault matter and fined modestly and placed on a 12 months good behaviour bond for the exposure matter and that brings us to his conviction, after arrest in April 2016, at the District Court on 13 February 2017 as I earlier outlined for the supply on an ongoing basis prohibited drugs. There were matters on a Form 1 including knowingly take part in the supply of a prohibited drug and he served that term of imprisonment. There are some other findings of guilt of damaging property and the like and contravening apprehended domestic violence orders for which he received various non-custodial orders served by way of suspension of terms of imprisonment or s 9 bonds.

18. He has a conviction in 2015 for possessing a prohibited drug and another conviction in 2016 for possessing a prohibited drug, consistent with what I said earlier about his descent into drug use which he resumed after he had been released on parole.

19. I have a Sentencing Assessment report which confirms a number of matters that are set out in the psychological report to which I have referred. I noted that whilst the prisoner does not have any arrangements for accommodation on release from the current sentence his brother is willing to support him in finding private accommodation in the Erskineville area. I should point out the prisoner’s mother and as I understand it the prisoner’s brother live in the Erskineville area where the prisoner grew up. He is more familiar with the area and as I would understand that his family are well respected people within that community and he continues to have the support of his mother and his grandmother who are in court and his brother. He has children from prior relationships but has had little contact with his children in recent years certainly since he has been in custody. As the Assessment report points out, that prior to the current offending in late 2017 he had been unemployed. But as I have already pointed out there was an extensive period of his life where he was in employment and avoiding offending. His main issues are the use of drugs which is not an uncommon feature of our courts and it is correct to point out by reference to the guideline judgment of Henry from 1999 to which I will come to in a moment, the use of drugs to commit a crime such as armed robbery is not a mitigating factor. It may be relevant in other ways as Wood, J pointed out at [273] of that judgment.

20. He claimed to the Community Service officer that he had been using a gram of Ice on a daily basis prior to the offence. It would appear that Mr Barrie was a person that the prisoner knew from the Erskineville area. I would appear as though Mr Barrie was well familiar with the inner western suburbs and been keen to rob a number of hotels in and around Erskineville and Glebe and the like. The prisoner gave evidence of his use of drugs before me as I said I accept the evidence he gave, I thought it was frank and he revealed matters that he might not necessarily have revealed if he was an untruthful person.

21. Whilst he disavowed any violence or aggression on his part, despite the current offence, it was noted in the Community Corrections Service that he has a history of violence that I had pointed out. He did express insight in relation to the effect of his conduct on the victims and expressed his regret to me for his conduct and I accept by reason of his early plea of guilty, his evidence before me and the statements that he has made of regret and contrition to the Community Corrections Officer and the psychologist that he is contrite. He has a need it is quite clear for intervention in relation to his use of alcohol and drugs, particularly drugs. He said in the more detailed history that he gave to the psychologist that in fact whilst he had a problem with alcohol for many years during his working years and the like he had been basically avoiding alcohol for a few years before he recently came into custody and prohibited drugs were his main problem.

22. He is assessed by Community Corrections as being at a medium to high risk of re-offending and he requires thus medium to high supervision level, he would be required to report to Community Corrections regularly, he would be required, when released on parole, to receive regular home visits and Community Corrections have a supervision program that will involve him being referred to local hospitals and services which would be recommended. He is not suitable for Community Service work as there is no work available for him, given his past convictions. I must say I was surprised when I read in the report that he had no work available due to a “historical sex offence”. My reading of his criminal history suggests that must be the wilful and obscene exposure matter, which, in the scheme of “sexual offences”, is a relatively minor matter. I do not understand there to be any psycho-sexual pathology in this prisoner’s make-up from what I understand of his criminal history and his psychological report.

1. I have dealt with many of the matters that are relevant to his subjective circumstances in passing in commentary of the material available to me in the Crown bundle. I have also referred either directly or indirectly to matters that arise in his psychological report. I do not propose to go into greater detail about those matters. He had a disrupted upbringing and I should point out in addition to the ADHD diagnosis which is confirmed as real he also has dyslexia, a reading disorder, which would have impacted upon his capacity to undertake education. But to his credit it is said that he stabilised that near the end of his schooling and after he had been able to deal with problems at school with behaviour and the like he was much more settled by the time he finished school. He suffered from asthma as a child. He has been prescribed a stimulant medication for the treatment of ADHD.

2. As I said he has been in a number of relationships. The first relationship ended when he was around 24 years old, he had another relationship afterwards which was described as “problematic” between the ages of 26 and 32, he had a seven year old son to this partner but he has not seen that child in three years. Apparently the mother has moved and cannot be located even by the Family Court. The last relationship he had was generally positive and lasted for about three years, he has a three year old daughter from this partner but the contact with the partner and the child has been interrupted by his time in custody.

3. He has a history, of drug abuse. It is described as a poly‑substance issue. He has engaged in the past in drug and alcohol counselling as an adult but that has not been successful. He will require more intense assistance, I would expect, on being released to parole on this occasion. He gave accounts of his circumstances involving the offence, the way in which he had become homeless and his use of drugs, describing to the psychologist in the period of time between September 2017 and the commission of the offence feeling “depressed” and “hopeless”. He did concede that he understood that he should have known better than to be involved in a crime of this type which is a serious escalation of his level of offending.

4. I pause for a moment to say that his criminal history is not an aggravating factor. He has breaks in his criminality which is to his credit and certainly in my view nothing of any significance in informing the circumstances of the crime that I am sentencing him for. But his criminal history of course does not entitle him to any particular leniency. He has no mental illness issues, there is no history of mania or psychosis. He has emotional difficulties but is capable of a stable lifestyle, particularly when in employment. The psychologist opines that

“the offence with which I am concerned occurred within what are described as adverse psychological circumstances in that he was homeless, recently released from custody, recently unemployed, depressed in mood and engaging in substance misuse. Without meaningful activity it is said he gravitated towards a negative peer group through whom he committed the offence in order to fund his drug use”.

27. I have not of course ignored the fact that Mr Barrie is a younger man than the prisoner. But that having been said, as I pointed out by reference to his criminal history and the character of his offending through 2017 and 2018, it might fairly be said that Mr Barrie, although some eight or nine years younger than this prisoner, was a much more experienced criminal in this type of offending. It follows that the prisoner can be seen in relation to this offending has not been organiser or the planner. The follower, obviously, as a participant in a joint criminal enterprise on a voluntary and dare I say enthusiastic basis, but certainly not taking the lead in the commission of the offences, the facts reveal the activities of Mr Barrie.

28. He is in need of a comprehensive drug rehabilitation program to address his needs on his release from custody and I accept the recommendation of the psychologist that he should be recommended to enter the intensive drug and alcohol treatment program, he is not eligible for the Compulsory Drug Treatment Program because of the period of time that he will spend in custody, which is a necessity in light of the maximum penalty for the offence with which I am concerned and its seriousness.

29. In regard to that aspect of the matter, the parties provided written submissions to the Court which were very helpful and those written submissions were supplemented by oral submissions of the parties.

30. If I be so bold to say I was greatly assisted by both counsel. So far as the prisoner’s history was concerned I believe I have made the necessary comments in relation to it. I note he is currently working in the laundry at Parklea Gaol and has been so for two months. He said that he had not used drugs in his time in custody since August and as I pointed out earlier the Crown Prosecutor very skilfully cross-examined him about his use of drugs on his previous release from custody and obtained concessions from the prisoner about his failure to inform parole officers of the true picture.

31. It was pointed out to him by the learned Crown Prosecutor of course that the Parole Authority was there to provide him with assistance. On the other hand, it would appear to me that the prisoner probably well knew that his failure to comply with his parole conditions. Although perhaps not wilful, but arising out of his loss of employment and accommodation it may have led to his return to custody and he might have thus been reluctant to willingly disclose the true position.

32. I appreciate his claims to do better on the next occasion must be approached with some circumspection. But in the circumstances in the context of his frankness and the impression he made upon me as a witness I have taken those claims of attempts to do better in the future as a true statement of his intentions at this particular time.

33. His counsel in his written submissions reflected upon the early plea of guilty for which the prisoner receives a discount of 25% to reflect the utilitarian benefit of the plea of guilty in accordance with the guideline judgment of Thomsonand Houlton and consistent with the new provisions relating to early pleas of guilty.

34. His counsel in the written submissions reflected upon his expressions of remorse, which I have already noted, and I am prepared to reflect that under s 21A(3) Crimes (Sentencing Procedure) Act, 1999 as a mitigating factor.

35. There is no standard non-parole period I note in relation to this offence. Learned counsel for the prisoner reflected upon those matters that were discussed as we well know, in the decision of Henry [1999] NSWCCA 111, particularly in the judgment of the Chief Justice in which he set the guideline as it was described for the crime of armed robbery, having regard to particular criteria. Quite frankly his counsel noted there were a number of features of this matter that place the offending, if it could be put in a particular way, outside the criteria. In other words, suggesting aggravating factors or more serious circumstances that are identified in the criteria discussed by the Chief Justice. First of all there is a greater maximum penalty. This is robbery with a dangerous weapon not an offensive weapon. But there is, apart from that matter nothing about the character of the weaponry, the use of a machete or imitation that separates the true facts of the matter from an armed robbery with an offensive weapon under s 97(1) attracting a lesser maximum penalty of 20 years. Still, the current maximum penalty for the crime to which the prisoner has pleaded guilty is the proper yardstick for fixing penalty.

36. He noted in his submissions the limited planning. He also noted however, the threat of violence towards two staff members, that the victims were vulnerable as the hotel was closed it was late at night. The vulnerability of the victims was not as great of course as a shopkeeper at night or a person working in a service station alone. The amount that was stolen was very substantial, much greater than identified in the criteria discussed by the learned Chief Justice. In Henry the Court discussed a plea of guilty with “little utilitarian value”. This has strong utilitarian benefit. The DNA evidence could have connected the prisoner to the crime. It may have worked to identify him in a circumstantial evidence way, but his plea of guilty still had strong utilitarian benefit notwithstanding the matters that implicated him.

37. Of course in this matter there is the additional aggravating factor to the objective facts arising under s 21A(2), that the prisoner committed the offence while subject to conditional liberty. That is an additional aggravation by reference to the Henry guideline and the criteria that were discussed by the Chief Justice. It could be fairly said that the present offending falls beyond the “common characteristics of such an offence contemplated by Henry” to cite the words of his learned counsel.

38. His counsel took me to those observations of Justice Wood that I have earlier referred to at [273]. There his Honour in observations that were adopted by all of the Court, with perhaps the exception of Justice RS Hulme, said that whilst drug dependency was not a mitigating factor it may shed light on matters such as the motivation of the offending, the impulsivity of the offence, the existence of any alternative reasons that may have operated in aggravation of the offence which do not arise here, the state of mind or capacity of the offender to exercise judgment amongst other matters.

39. Of course this is not an impulsive offence. The prisoner had been invited to commit the crime at least the day before as I understood it. He had agreed to commit the crime. He came prepared to disguise himself, albeit that he disguised his hands rather inexpertly with socks to not prevent his DNA profile being left on the weapon. Although he told me that he did cut himself when entering the premises, how his DNA came to be on the weapon left behind is not exactly known. But the fact that he left the weapon behind reflects a degree of lack of professionalism on his part.

40. I notice there is no evidence of any trappings of wealth or obvious signs of profit from the offence for this prisoner it would seem consistent with his account that such benefit as he received from the robbery was spent in pursuit of his drug dependency.

41. The written submissions of learned counsel for the prisoner summarised the history given by the prisoner, some matters are adverted to that I have not specifically identified that I have taken into account both the contents of the report, the history given by the prisoner and the matters relied upon by his counsel. I note that the matters identified by his counsel as contributed to his offending appear to me to be capable of acceptance.

42. It was submitted by his counsel that he had good prospects of rehabilitation in the sense that he had no prior convictions for this type of offending. He had previously demonstrated the ability to live crime free, had enjoyed periods of employment and had industry qualifications, was remorseful and had insight, he was currently of stable mood and had avoided the use of drugs whilst in custody as well as having family support which did not exist at the time of the offending. I should point out that part of the history was that notwithstanding the great support his mother and his brother have given him throughout his life he was to some extent at odds or at arm’s length from them in the period of time leading up to the commission of this offence.

43. I have taken those matters into account. Whilst one needs to be guarded about predicting the future, it is fair to say that the matters identified by his counsel reflect on balance of the prospects of rehabilitation of the prisoner may be seen as positive. Then again one needs to approach the matter with some circumspection.

44. One matter that the prisoner raised with me without dwelling on it, because I think it was sufficiently discussed on the last occasion, was the wish of the prisoner to go onto methadone when he is released from custody. I am not here to give the prisoner personal advice nor any medical advice. I am not qualified. But I would have thought if he is able to remain drug free whilst in custody, going onto methadone, even if it is a prescribed drug, would be leading from one form of drug addiction to another, but he will need to get advice in relation to this matter. If he is on prescribed methadone of course it may mean that he will not be tempted into using prohibited drugs, but he would be far better to be completely drug free.

45. His counsel reflected upon the lack of sophistication of the planning. He noted there was obviously an element of pre-meditation on the prisoner’s own account which to my mind was a level of his frankness.

46. The Crown’s written submissions reflected upon the objective seriousness of the offending, the use of weapons, the damage caused to the hotel gaining entry, the significant amount of money stolen. All these matters of course are relevant to the assessment of the objective seriousness of the offending.

47. The Crown pointed to some potential aggravating factors but freely conceded both in writing and/or in oral submission some of the matters, the issue of financial gain for example were inherent characteristics of this type of offending. He was an active participant that I accept. It was submitted that there was no reason to “discriminate” between this offender and the co‑accused in terms of the actual execution of the robbery. While they are jointly liable for the crime and one might have thought on one view of it objectively they were at least equally culpable. On the other hand, it has to be fairly pointed out that Barrie had planned this matter. That seems to be self‑evident even without necessarily relying upon the prisoner’s evidence which fills in some gaps which are not available in the agreed statement of facts. But more importantly, whilst the prisoner threatened people holding the machete up, it was Barrie who took the lead in obtaining the money; he knew what to do, he knew where to go to. This prisoner was clearly a follower.

48. The particular aggravating factor identified by the Crown of significance, and I have accepted that to be so, was the breach of conditional liberty and I have dealt with the issue of the relevance of his criminal history.

49. There is another aggravating factor identified by the Crown. It is part of the facts of the case which I have taken into account. The offence was committed in company. But it also was a matter intimately bound up with the facts of the case as I have pointed out.

50. The Crown conceded the appropriate discount for the utilitarian benefit of the plea of guilty. The Crown submitted that the prospects of rehabilitation were poor. I have noted that submission. But I have also referred to the matters properly identified by counsel for the prisoner. Again, in fairness of the Crown submissions, I understand where the Crown is coming from and I appreciate the circumspection one must have in relation to that matter. Predicting the future is something that judges are no better at than any other member of the community.

51. The Crown submitted I should date the sentence from 20 August 2018. The serving by the prisoner of the balance of parole which occurred after the revocation of parole has nothing to do with the time that he has spent in custody in relation to this matter. He served the balance of parole and was released to the community and came back into custody only on his arrest in relation to the current matter. It seems to me ultimately, to be a separate matter. If the prisoner was already in custody when charged in relation to this matter for the balance of parole it would be a different exercise and I would need to take into account that period of continuous custody in fixing the non‑parole period.

52. In that regard I have determined that there are ‘special circumstances’ pursuant to s 44 of the Act. I note from the Community Corrections report, just putting aside the psychology report for the moment, the very real need for intensive supervision as is suggested in the report and it seems to me that in the context of the way in which the prisoner fell into offending on this occasion, there is a real need to ensure that the prisoner undertakes the programs that are required of him and it seems to me that a period of two years for that to be done is a reasonable period.

53. He needs also an extended period of time to adjust to community living in light of the fact that this term of imprisonment I impose will be the longest that has been imposed on him thus far.

54. I appreciate the offending is serious offending and I appreciate it might be seen if one was to use the terminology in relation to offences of a kind that attract a standard non-parole period that a categorisation of the offending may place it within the mid-range or middle-range of objective seriousness. It is quite clear from reading judgments that the Court of Criminal Appeal over the years the sensitivity and the subtly of arriving at a correct decision in that regard. I appreciate Spigelman CJ in the now, for want of a better word, ‘discredited’ judgment of Way did make the observation which nobody seems to have disabused since, not even the High Court, that the middle range of objective seriousness may not necessarily be a “narrow band”. In this particular matter in light of the role of the prisoner, in light of the planning being undertaken primarily it would seem by Barrie, whilst there was some planning in the offending, this prisoner’s role in that regard would appear to be very small indeed.

55. Having regard to the activities of Barrie either side of the commission of this offence, in assessing the objective seriousness of the offending, if I was to use terminology such as “middle range of objective seriousness”, I ultimately would conclude that it is offending that, notwithstanding the sum of money that was stolen, that may be seen to be on the cusp of the lower end of the middle range of objective seriousness. Perhaps just below the cusp remembering that there is a wide range of activity anticipated to be involved in the commission of an offence of this type.

56. I have had regard for example to the character of the dangerous weapon. Whilst the prisoner wielded the machete and threatened people he did not use it on anybody and the dangerous weapon was in fact a firearm that was incapable of firing a projectile. One might have thought the objective seriousness of an identical robbery with a gun capable of firing a projectile, such as a Colt 45 or a 9 millimetre handgun, would be objectively considerably serious given the potential threat to the lives of those being robbed.

57. In any event I have had regard to all the submissions of the parties and all the evidence that is available to me. I have had regard to s 3A of the Act and the “purposes of sentencing”. They all have salience in this matter ensuring the prisoner is adequately punished, preventing and deterring crime from the offender and other persons, protecting the community from the offender, making him accountable for his actions, denouncing his conduct, recognising harm done to victims but also seeking to promote his rehabilitation.

58. I have noted the relevant aggravating factors. The mitigating factors I have identified. One matter I should point out, this is not organised criminal activity. I could not conclude of course the prisoner was a person of good character and I could not conclude ultimately that the prisoner did not have a significant record of previous convictions but I have concluded in his favour that he has good prospects of rehabilitation and has relevantly shown remorse as I have earlier identified.

27. His plea of guilty is a mitigating factor of course. For that he receives a discrete discount.

28. Thus, Mr Stavely I had to go through a number of matters as the law requires me to do which I am obliged to put on the record. I have told you in advance what the sentence is. I am not going to ask you to stand, that would be ridiculous to ask you to stand in that room but in relation to the offence to which you have pleaded guilty you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of four years that will commence on 20 August 2018 and expire on 19 August 2022.

29. In fixing that sentence and the balance of sentence I hasten to say I have had regard to the guideline judgment from now 20 years ago. Certainly so far as the guideline provides some assistance or a guidepost it is not necessarily a tram line. The appropriate penalty for you must be outside the parameters of the guideline fixed by the Chief Justice.

30. I fix a balance of sentence of two years to expire on 19 August 2024. I recommend during the course of your sentence you be admitted to the intensive drug and alcohol treatment program.

31. Do you understand the sentence I have imposed?

32. OFFENDER: Yes your Honour.

33. HIS HONOUR: And you understand it is a non-parole period of four years which will expire on 19 August 2022.

34. OFFENDER: Yes your Honour.

35. HIS HONOUR: That is coming up to about three years’ time. Whether you are released to parole will be a matter for the parole authority and your progress whilst in custody. I can’t guarantee that you will be released on that date, but if you work towards providing a positive picture to the parole authority it may well be date that you’re released, do you understand that?

36. OFFENDER: Yes your Honour.

37. HIS HONOUR: Yes Mr Crown anything?

38. GEORGE: Would your Honour be minded to order an urgent transcript of your Honour’s remarks only because Scott Barrie is being sentenced in a month’s time.

39. HIS HONOUR: I will ask my associate to request the transcript of the remarks. It’s possible they will send them to me Mr Crown.

40. AUDIO VISUAL LINK DEACTIVATED

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Decision last updated: 06 November 2019