R v Weston

[2015] NSWDC 166

District Court

New South Wales

Medium Neutral Citation:

R v WESTON [2015] NSWDC 166

Hearing dates:

19 March 2015

Decision date:

19 March 2015

Jurisdiction:

Criminal

Before:

Judge S Norrish QC

Decision:

1. Sentenced to a term of imprisonment of 3 years and 9 months with a non-parole period of three years. 

2. Sentenced to a term of imprisonment 3 years and 4 months with a non-parole period of 2 years.

3. Sentenced to a term of imprisonment of 4 years and 6 months with a non-parole period of 2 years. 

Catchwords:

Criminal - sentence, robbery armed with offensive weapon, early plea.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited:

Blackman and Walters from 2001
Bloomfield (1998) 44 NSWLR 734
Henry & Ors v The Queen
Pearce v The Queen (1998) 194 CLR 610
R v Moffitt (1990) 20 NSWLR 114
Yardley v Betts

Category:

Sentence

Parties:

Director of Public Prosecutions
Michael Weston - Offender

Representation:

Solicitors:
Director of Public Prosecutions
Legal Aid - Offender

File Number(s):

2014/208064

SENTENCE

1. HIS HONOUR: Michael Weston today appears for sentence in relation to three offences that were committed by him in early July 2014. One offence was an offence of robbery whilst armed with an offensive weapon committed on 9 July 2014, which involved the robbing of a taxi driver. The other two offences were committed on 11 July 2014 at Waterloo. The first offence in time on that day, as I understand, it was an attempt to rob a taxi driver whilst armed with an offensive weapon, to wit, a knife, and the second offence in time on that date was the offence of armed robbery with an offensive weapon of a taxi driver at Waterloo as were the locations of the other two offences. I am informed by the Crown that all three offences are offences contrary to s 97(1) Crimes Act 1900. Each offence carries a maximum penalty of 20 years imprisonment. There is no standard non-parole period.

2. The prisoner was arrested on 15 July 2014 and has been in custody since that date and all time spent in custody since his arrest will be taken into account. He was not in breach of bail, a good behaviour bond or parole, although he has been previously granted good behaviour bonds and parole.

3. To re-state the agreed facts requires me to refer to some of the details although I do not propose to repeat all the details. As was pointed out by his counsel, in fairness, these three offences, serious offences as they are given the fact that taxi drivers are people who are performing tasks that are conceded by counsel for the accused to be in a vulnerable position, were committed in daylight hours. To some extent the vulnerability of the victims was not as great as it might have been in the early hours of the morning or the late hours at night.

4. But it is the fact, as this Court knows from dealing with many matters that arise from this area, robberies of taxi drivers in the Waterloo area is not an uncommon occurrence. I am very mindful of the good work of Superintendent Luke Freudenstein, the officer in charge of the Redfern Local Area Command, that he has done with the Koori community in Redfern to try and reduce the very high incidence of robberies committed in that area. In fairness, this prisoner is not responsible for other robberies. But the truth of the matter is that there is a long line of cases that have been dealt with in this Court, some by me, involving offences of this type in that particular area.

5. The first victim was employed by Taxis Combined. At about 8.15am he was driving his car on Botany Road and the prisoner was standing near the corner of Botany Road and McEvoy Street, Waterloo. The taxi was flagged down. The prisoner was wearing a beanie and a jumper and a hood pulled over his head. He got into the rear passenger seat, slid across the seat so he was seated directly behind the victim, which would have been a quite unnerving experience, and directed the victim to drive him to a dead-end street being John Street, Waterloo.

6. At one point the prisoner put his hand onto the victim’s right shoulder and put his other hand at the victim’s throat. At that point the victim realised that the prisoner was holding a knife to the victim’s throat with his left hand. The victim is described as being “paralysed with fear” and being pinned back against the seat by the offender. The prisoner demanded money. The victim removed $190 from his left shirt pocket and also removed $50 from his right shirt pocket, handing over to the prisoner $240. The prisoner still held the knife at the victim’s throat and used his right hand in a patting down motion on the top half of the victim. The blade was described as being 20 centimetres long, not including the handle. It had two triangular chunks out of the blade and the victim believed that the knife was broken. The prisoner also took the victim’s Samsung mobile phone from the centre console of the taxi and ran away.

7. The victim used his taxi radio to advise base he had been robbed. Police were notified. The taxi driver drove around Waterloo in an attempt to locate the offender and when he realised police had not been called, he went towards Redfern Police Station but he apparently collected a second fare, which he dropped off, before he attended the police station and reported the matter to police. Internal CCTV camera footage within the cab captured the entire incident.

8. Two days later at about 9.20am the prisoner flagged down a cab that was being driven south along Elizabeth Street, Waterloo, just past the intersection of Wellington Street. The prisoner again was wearing a beanie and a jacket. Again he slid when he got into the taxicab across to the back seat and positioned himself directly behind the victim. The prisoner asked to be taken to George Street, Waterloo, near the intersection of George Street and John Street. As the victim tried to pull over, the prisoner directed the victim to turn left into John Street, the street where he had previously robbed the other driver. The victim was asked to stop.

9. The prisoner reached forward and placed his right hand on the victim’s right shoulder and again with his left hand held a knife to the victim’s throat. He screamed out “give me your money, give me your money.” The victim momentarily froze and then he reached down and pressed the car horn as hard as he could. The prisoner immediately got out of the cab and walked off through 40 John Street, Waterloo, and the victim lost sight of him. The prisoner did not get any money or property. The victim completed his shift before going to Redfern Police Station to report the incident. Again internal CCTV footage within the taxi captured the entire incident.

10. It must be said, in the context of some observation made about the two cab drivers to whom I have referred going on and doing further work, that no inference can be drawn from that that they were not affected by the conduct of the prisoner. It may be that cab drivers or some cab drivers in this area are inured from the risks of driving taxis in an area, but it does not diminish the effect upon them or the seriousness of the offending.

11. The prisoner probably just over an hour after the first offence on 11 July flagged down another cab in the area of Regent Street, Redfern. He got into the rear passenger seat and then initially sat behind the front passenger seat. He directed this cab to George Street in Waterloo. He again slid across the back and he committed the offence with a very similar modus operandi, except on this occasion the right arm of the prisoner was put around the neck of the victim. The victim saw the offender was holding a knife and he felt the knife being held up to his throat. The prisoner made a threat on this occasion, “Just give me your money or I will stab you.” The cab driver tried to calm him down saying, “Take it easy, take it easy.” The prisoner demanded all of his money and the victim held up $200 that he removed from his shirt pocket. The knife was still being held against the victim’s throat. The prisoner asked for all of the coins as well and the gold coins as they are described, that is I assume $1 and $2 coins, were handed to the prisoner, who then removed the knife from the throat of the victim and exited the cab. The victim was in shock, unable to move for a few minutes. Eventually the matter was reported to police.

12. Again internal CCTV footage captured the whole affair. I assume thus that the prisoner was easily identified and on 14 July 2014 the prisoner was arrested at a unit at 232 Pitt Street and charged. He declined an interview and he declined to participate in an identification parade, although if he was filmed, bearing in mind he did not have a disguise, although he was wearing a beanie and other clothing, he would have been readily identified from that.

13. The prisoner I accept threatened his victims, first of all by holding a knife against or near their throat. That is a very, very threatening gesture and it matters nought to my mind that words were not uttered in the first two offences as direct threats, although there were demands for money. In the third offence in time of course, as I said earlier, there was the threat to stab the victim. The prisoner talks about his regret for what he did. But he obviously had no regard for the welfare of his victims, even if it be true that he was not intending to use a knife upon his victims. They would not have known that. He was after what he could get in the form of cash from them or other items that he might be able to sell for his own selfish purposes.

14. The prisoner’s criminal history does not reflect a life of antisocial activity throughout his teenage years, but from the age of approximately 19, perhaps slightly younger, he has been regularly offending in a range of ways consistent with the history of drug use, which is the comment of a psychologist whose report I will come to in a moment.

15. He was born on 23 August 1990. His first conviction was at the Downing Centre Local Court from charges brought in February 2009 when he appeared at that court on 3 September. He was convicted of larceny and possessing implements to enter or drive a conveyance, and given two good behaviour bonds pursuant to s 9 “Sentencing Procedure” Act, one for 12 months, one for 18 months.

16. He was called up in relation to those bonds on 22 April 2010, that is on my calculation a little more than six months after being granted those bonds, for reasons which are not explained in the criminal history. He was convicted also on 3 September 2009 of destroying or damaging property. Another offence committed in February 2009. He was given a good behaviour bond for nine months in respect of that matter and again was as I understand it called up for a breach of that bond.

17. He was convicted on 20 November 2009 of assault occasioning actual bodily harm and given another opportunity by way of s 9 bond. He was presumably by that conviction in breach of the good behaviour bonds to which I refer. On 25 November 2011 he was charged with common assault and contravening an apprehended domestic violence order, and in February 2012 was given two s 10 bonds for a period of six months. He was convicted on 10 September 2012 with destroying or damaging property and contravening an apprehended domestic violence order, and was fined modestly in relation to both offences. He was convicted of larceny on 11 June 2013 and fined $800, and also fined for entering inclosed lands without lawful excuse, these offences committed between Christmas and New Year in 2012. He was fined in relation to those matters.

18. He has another conviction for entering inclosed lands recorded on 31 January 2013. On that day he was convicted of breaking, entering and stealing, and sentenced to 12 months imprisonment with a non-parole period of nine months. He was also convicted of destroying or damaging property and possessing an unregistered firearm, for which offences he was sentenced to three months imprisonment. He would have from what I can read of the dates of those offences, committed those offences whilst on bail in relation to the break, enter and steal matter. All the terms of imprisonment were concurrent with one another.

19. He appealed against the severity of those penalties, as best as I can work out the record appearing in the Sydney District Court on 18 July 2013. In respect of the breaking, entering and stealing matter he was sentenced to 12 months imprisonment with a non-parole period of six months imprisonment. Thus there was a finding of ‘special circumstances’ not found at the Local Court.

20. He has a number of other convictions in his criminal history over the period of time between 2009 and 2013, including custody of a knife, possessing prohibited drugs on a number of occasions, larceny and being an unlicensed driver, which is a relatively minor matter. As was pointed out in the course of submissions, the criminal history reveals a gradual elevation or increase in the severity of the offending that has brought him before the courts. I note in relation to the matters with which I am concerned that it is the first occasion that he has come to the District Court for sentence at first instance. Certainly, as his learned counsel said in her very helpful oral submissions, the offending that I am concerned with is quite a leap upwards in severity from other offending.

21. I have a very detailed psychological report. I know the prisoner did not given evidence. I am mindful of the fact that one must approach matters of history not the subject of test by the prosecution with some circumspection. There are a number of cases that deal with this. The case of Qualtieri comes to mind. There is also the case of Palu where Justice Howie spoke about the proper approach to opinions based upon hearsay material that is not independently established. I am prepared however in general terms to accept the bulk of the material. It seems to be consistent with what the criminal history reveals. The prisoner is a relatively young man. Obviously he is, being born in 1990 he is now 24 years of age to turn 25 this year as I would understand it.

The psychological report ma’am I have just picked up has got his birth date in 1989, the Crown through the criminal history has his birth date 1990. That’s an error by the psychologist I’d expect because he calls him a 24 year old man on 18 March 2015. That can’t be right if he was born in 1989.

MAYNE: My understanding is, your Honour, it is 1989 which is the date on the front sheet of the record.

OFFENDER: When I come into the gaol ..(not transcribable).. 1990 by mistake, they just haven’t changed it.

HIS HONOUR: I’m interrupting my remarks on sentence just to point out some anomalies in the matter that I hadn’t picked up in the rush to try to complete four or five sentence matters today that I heard. But his criminal history says he was born in 1989, the Court Attendance Notices say that he was born in 1990, so it makes him 25 years of age. Is that right?

MAYNE: Yes, your Honour.

HIS HONOUR: Is that right, ma’am?

MAYNE: Yes, your Honour.

HIS HONOUR: Well the psychologist is then wrong in his report in reporting the prisoner to be a 24 year old man based upon the information that he had.

22. But what is important is he’s a relatively young man still, raised in the “inner west” suburb, I would call it the inner southern suburb, of Waterloo. He has had a somewhat unfortunate upbringing. He was raised by his grandmother. He suffered some hardship as a small child and had to be placed in the Department of Community Services’ care, and essentially his main maternal influence has been his grandmother, who is with him today and has stood by him throughout the years and supported him materially by endeavouring to obtain for him an education. The prisoner was in fact separated from his mother for a 10 year period until he was 13, having been placed in his grandmother’s care at the age of three. As I understand the chronology, he went back to his mother after a falling out with his grandmother, but the reconciliation with his mother was short-lived.

23. He relocated to Queensland or moved to Queensland at some point. He displayed evidence of antisocial behaviour and eventually came back to live with his grandmother when he was about 16. His mother died suddenly and unexpectedly when he was aged 19 years. His grandmother is quite ill at the present time.

24. The prisoner was educated at a “private primary school” in Marrickville as it is described. The prisoner himself describes the school as “pretty good.” He seemed to enjoy that school. He has been diagnosed through his education with the disorder of dyslexia and obviously has had a great deal of difficulty in his reading and writing whilst at school. He attended St Mary’s Cathedral High School, which is a very good high school, for some short time, obviously paid for by his grandmother. But he did not apply himself. He essentially left school as I would understand the chronology he gave, in year 7.

25. He has had little educational opportunity living in the Waterloo area. It is a hard, tough area. As I have already pointed out, a great deal of serious crime is committed there, particularly crime of the character with which I am concerned, and it was no shock to read in the report that he associated with what are described as antisocial peers. It must be fairly said of course that he has to take responsibility for his own conduct. It may be that the people that he describes, or the psychologist describes, as antisocial peers might have described him likewise as an “antisocial peer,” but he noted that Waterloo was a “rough area” and he developed a code of relationship with people of that area, which basically has contributed it would seem to the attitudes he has that have contributed to his criminal history.

26. He was in a relationship with a woman for a period of time. There are two children from that relationship. He apparently plays no role in their lives.

27. He has been a user of cannabis and alcohol since an early age. He moved on to heroin and amphetamines and has had a long history of heroin use. He has been prescribed drugs such as OxyContin, sometimes referred to by drug dealers as ‘hillbilly heroin’. He was actually taking OxyContin for the purposes of recovering from a wounding of his abdomen by a samurai sword that he claimed required him to spend nine months in hospital and in fact required him to wear a colostomy bag for a period of time. In any event, being prescribed OxyContin would not have helped him from remaining, once he got out of medical care, off heroin and he went back to the heroin use. I am told by his counsel then, on the basis of the history provided to the psychologist I am prepared to accept, that in part his commission of these crimes was to obtain money to buy prohibited drugs for himself. He was heavily dependent on prohibited drugs at the time of the commission of the relevant offences. He claimed to the psychologist he weighed only 65 kilograms when arrested, but he now presents in a much healthier state. He has remained in custody he says trying to avoid the use of drugs and has been taking some prescription medication to control his craving for drugs.

28. He has had no significant brain injuries. He has a family history of anxiety and depression. He has a drug history that would be the diagnostic threshold for substance use disorder including the use of cannabis and stimulants, as well as opioids. He has evidence of antisocial personality disorder and a conduct disorder at the age of 15 years. He has a pervasive history on his own account of non-conformity, impulsivity, irritability, recklessness and irresponsibility.

29. With regard to these offences, he claimed that these were a departure from his “normal” offending in terms of their seriousness and harmfulness, and thus he will understand why more significant penalties will be imposed upon him for these matters than would be imposed upon offences of the character that he previously committed.

22. With regard to psychometric testing, which is the real importance of psychologists’ reports and the part of the psychologists’ reports that are most helpful to a court, the Wechsler Abbreviated Scale of Intelligence (2nd edition) actuarial assessment was made and his performance placed him in what was described by the psychologist in the “average” range of the 30th percentile. As I would understand it, that percentile is a reflection upon persons of his own age. His verbal performance however was much lower than his non‑verbal visual intellectual skills. His verbal performance put him at the 19th percentile but his non-verbal visual intellectual skills placed him at the 50th percentile, so in other words he has natural abilities, but his educational limitations obviously restrict his capacity to perform in tests that are in many instances a reflection of educational achievement.

23. The psychologist also completed with the prisoner the Millon Clinical Multiaxial Inventory-III. This is a self-report questionnaire which assesses many things including personality and other disorders. His most elevated scores on the personality scales were for depressive, negativistic and antisocial personality matters, so it reflects what the history states. He had a “notable elevation on the severe personality scales for borderline personality.” His highest elevation on the scales of clinical syndromes were for anxiety and drug dependence, and his major depression scale was elevated as well. These are, as the psychologist says, consistent with his self‑reporting. His borderline personality disorder, if it be such, will need further investigation.

24. The psychologist concludes that the prisoner is a man who has lived in a subculture where violence and criminality are respected. His learning difficulties at school impeded the likelihood of successful diversion from antisocial behaviour, and aided by substance dependence this has affected his capacity to control his behaviour, but he did not justify or speak dismissively of the particular crimes with which I am concerned.

25. The psychologist states,

“This may be Mr Weston’s first opportunity in his adult life to pause, reflect and consider. There is much work to be done to overcome his poor self‑regulation, his criminal attitudes, his vulnerability to substance abuse and his employment prospects. A solid case management plan will be important in remediating these issues prior to Mr Weston’s community release.”

34. He also will need alcohol and other drug counselling, and he would perhaps benefit from avoiding the Waterloo/Redfern area. Although if he grew up there and his grandmother is still alive and lives there he will naturally gravitate back to that area. But he will do so at the risk of succumbing to the temptations that have pervaded his life beforehand. That having been said, the prisoner’s background is to be fairly said one where his grandmother has endeavoured to assist him as best she can, but regrettably the prisoner has grown up in an environment and developed an attitude which has ultimately led to the matters with which I am concerned.

35. In sentencing the prisoner I have regard to s 3A of the Crimes (Sentencing Procedure) Act. Of course, these are crimes that require emphasis to be given on general and personal deterrence, denouncing the conduct of the prisoner, making him accountable for his crimes and ensuring that there is adequate punishment. I am still obliged, of course, to promote his rehabilitation. His criminal history in the context of his age is not something that disqualifies him from consideration of matters that are always pertinent in the sentencing of offenders. The Court of Criminal Appeal in a number of cases, particularly a case such as Blackman and Walters from 2001, have considered a line of authority, perhaps commencing with the South Australian decision of Yardley v Betts, that asserts that in sentencing offenders, punishment is not always to be the norm, although of course punishment will be severe for significant criminality. Promoting the rehabilitation of offenders is a relevant consideration, because it is in the community interest that offenders eventually be rehabilitated, be persuaded from offending when they are at large, as much as it is in the interests of the prisoner.

36. In sentencing the prisoner I am required, as the submissions of both the Crown and the defence have identified, to have regard to the guideline judgment from 1999 of Henry & Ors v The Queen, which I will come back to in a moment. Counsel for the accused took me through matters I have already identified, the escalating character of the criminal behaviour of the prisoner, his relatively young age to an extent, the fact that he is supported by his grandmother, although that has not prevented him from offending, the fact that his background is very much fashioned by the social circumstances in which he has lived.

37. It is submitted on his behalf that his prospects of rehabilitation are still positive, particularly if he is able to overcome his dependence on drugs, and it is acknowledged in the submissions that - bearing in mind I am concerned with three offences committed at different times - by reference to what are the general principles enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610, particularly in the majority judgment at [45], I am required to reflect the totality of the criminality by some partial accumulation, which I will do. The Crown referred to Henry, as I have earlier said, and basically said things that were in accord with what had been put by the defence counsel. There had been an escalation in his offending, this was serious offending, the victims were vulnerable, and it was a case where specific and general deterrence obviously had a role to play in the sentencing process.

38. I am very mindful of the fact that the guideline judgment in Henry involves a decision that pre-dates the guideline judgment in relation to Thomson and Houlton. The particular guideline promulgated by the learned Chief Justice at [162] of the judgment (see [1999] NSWCCA 111) points to what are said to be by his Honour common features of armed robberies with which the court was concerned, limited degree of planning, limited if any actual threat, limited if any actual violence but a real threat thereof, young offender with no or little criminal history, a weapon like a knife capable of killing or inflicting serious injury, victim in a vulnerable position such as a taxi driver, small amount taken and a plea of guilty, the significance of which is limited by a strong Crown case.

39. Here of course the plea of guilty has strong utilitarian benefit in accordance with the guideline judgment. I propose to give the prisoner a discount of 25% upon the otherwise appropriate sentence in relation to each offence in accordance with that guideline judgment of Thomson and Houlton. I am very mindful of course that the learned Chief Justice in reviewing the cases pointed to aggravating and mitigating factors, particularly matters set out in [170] which might require consideration of the starting point above or below what was said to be the range of appropriate penalty for the guideline. The guideline was stated at [165] to require sentences for an offence of the character identified “above” - that is a reference to [162] - which would generally fall between four and five years for the full term. It is to be pointed out of course that the guideline is concerned with one offence. Relevant too are the observations of Wood CJ at CL at [273] of Henry, as to the lack of planning of some of the offending and the prospects of rehabilitation. He is certainly not at the ‘crossroads’.

40. Here I am concerned with three offences and whilst there is greater utilitarian benefit than identified in the guideline, of course in this particular matter we have the fact of the criminal history of the prisoner showing past convictions for dishonesty, past convictions for violence, past periods of imprisonment including the granting of non‑parole periods and the grant of bonds to be of good behaviour which were breached, admittedly three or four years ago.

41. I am very mindful of the fact that subsequent to Henry, in relation to guideline judgments it has been said that guidelines are precisely that, to assist in structuring sentencing discretion. They are not “tram lines.” I am also very mindful of the observations of Chief Justice Spigelman at [10] where he referred to the “unreported” case of Lattouf and the public interest, reflected upon by Acting Chief Justice Mahoney as he then was, that there was a public interest in the sentencing process to maintain a residual discretion of the sentencing judge, and of course there was the need to ensure that general principles by their nature are adjusted to the individual case to ensure that justice is achieved.

42. In relation to this matter, I have been provided with statistics. They do not provide a great deal of information. The number of cases are within the range of statistics from 2007 to 2014 for robbery whilst armed with an offensive weapon or robbery in company. Both offences of course are covered by s 97(1). The statistics show in the case of 1,497 cases, which is quite a large sample I hasten to say, much larger than many of the samples provided, the range of sentences will be from approximately 12 months through to 12 years, reflecting obviously a range of circumstances. The mean period would appear to be in the vicinity of around about four years, but again whether that is for individual offences or one of a series of offences is difficult to gauge. Although I have also been provided with statistics, reflecting much the same figures I hasten to say, for what are described as “multiple offences” for sentence.

43. Statistics do not tell anywhere near the full story. In the decision of Bloomfield (1998) 44 NSWLR 734 at the very early stage of Chief Justice Spigelman’s career as Chief Justice, he reflected upon the inadequacy of statistics as was reflected in Henry. They are of limited use, he said. They are less useful than surveys of decided cases, caution needs to be exercised in using statistics although they can ensure consistency in sentencing, they provide some information in relation to general sentencing trends in an appropriate range, but they do not provide full particulars. Statistics in relation to sentences for particular offences also do not reflect some other factors that can never be known. A good example to my mind has always been the offence of accessory after the fact for murder. One will see the statistics for sentences for that offence see many good behaviour bonds or suspended sentences being imposed. But what the statistics do not tell you is that most people convicted of accessory after the fact for murder are usually charged principally with murder at the start. They plead guilty to the accessorial offence after having been in custody sometimes for 18 months or two years awaiting trial and thus the ultimate penalty imposed does not actually reflect the time they spend in custody. However, be that as it may, the statistics provide some general guide.

44. I was not taken to any particular matters under s 21A(2) of the Crimes (Sentencing Procedure) Act that reflected as aggravating factors. This was a case where the prisoner’s offending involved what could be called “little planning”, but it is to be remembered that when he committed the first offence, even if that was an offence where he took the time to arm himself with a knife, he did not give himself much time to plan. After he committed that offence he returned two days later to commit two offences on the one day, a few hours apart, with the same modus operandi, reflecting in relation to the second two offences a greater degree of premeditation, if not planning. Of course, as I said earlier, the prisoner committed these offences in the full glare, if that is the correct expression, of CCTV footage with minimal attempt to disguise his face. Ultimately he was fore-doomed to be arrested.

45. The s 21A(3) matters to my mind are ultimately found on balance to be that the prisoner has expressed contrition for his actions through his plea and in his representations to the psychologist, although they are not tested. I accept that his plea of guilty is of course a mitigating factor for which he receives a discrete penalty. I cannot conclude that he has good prospects of rehabilitation. I think it is far too early to come to that conclusion.

46. I cannot conclude that he is unlikely to reoffend. I do not conclude, of course, that his criminal history, is in fact an aggravating factor, as it is understood, pursuant to s 21A(2) of the Act. But of course it does not entitle him to any particular leniency.

47. I detect in his discussion of his offending with the psychologist and discussion of his background some insight on behalf of the prisoner. He is not an unintelligent man. As I pointed out, he has got a reasonable score in relation to non-verbal intellectual functioning which is an artefact of what I would call natural intelligence. But, again, he is limited very much by educational opportunity that has been denied him. That having been said, I am prepared to accept as a mitigating factor that his crimes are not planned offences or “organised criminal offences.”

48. Going back to the objective facts, which is always a starting point for any sentencing exercise, the truth of the matter is they are serious offences, albeit committed in daylight. He put the victims in fear. I cannot find beyond reasonable doubt that he intended to harm them, but he was committed enough to make demands for money and on one occasion verbally threatened his victim. It seems to me in attributing appropriate penalties that the penalty for the last offence in time by way of period of imprisonment, the starting point of which will be six years imprisonment, should be greater than the starting point for the terms of imprisonment in relation to the other offences.

49. I have determined that the starting date of the sentence for the last offence in time should commence 12 months after the commencement of the sentence for the first offence in time. I have determined that the starting point in relation to the first offence in time should be five years imprisonment and with a 25% discount the term of imprisonment should be three years and nine months. As I seek to achieve a non‑parole period effectively of three years, I will fix a non-parole period of three years in relation to that sentence.

50. In relation to the two offences committed on 11 July, the starting point for the first offence, the attempted robbery, is to be four years and six months. That will be a sentence of three years and four months. I propose to fix a non‑parole period of two years for that sentence, that sentence commencing 12 months into the first sentence.

51. In relation to the last offence in time, the starting point for the sentence for that offence shall be six years with a discount of 25%. The total sentence for that, and it will be four and a half years, I will fix a non-parole period of two years.

52. Notwithstanding the fact that I cannot find that the prisoner has good prospects of rehabilitation and is unlikely to reoffend, I have determined that there should be a finding of ‘special circumstances’. The psychologist’s report points to particular matters that will require professional assistance to be given to the prisoner. This is the most significant term of imprisonment that has been imposed upon him. He will need professional assistance to adjust to community living having served a substantial term in custody, certainly greater than has been previously granted (see R v Moffitt (1990) 20 NSWLR 114, at 120-121 per Wood J). I am mindful that he has been in breach of bonds in the past, though I note he was previously granted parole which he successfully negotiated. The truth of the matter is, as the psychologist pointed out, the prisoner himself has acknowledged the need for him to in effect take “time out,” my words, to reassess his life. He does need to pause and reflect and consider where he is, because if he wants to go out into the community armed with a knife or a gun threatening people in order to obtain drugs for himself, he can only expect greater and more severe sentences to be imposed upon him. The one matter that does mitigate against a more significant sentence in my view is the fact that he is not so old to be beyond redemption.

53. Thus having taken into account all the relevant submissions, I make the following orders. If you could stand up please, Mr Weston.

54. In relation to the first offence in time, that is sequence 1, you are convicted. You are sentenced to a term of imprisonment by way of non‑parole period of three years. That is to date from 15 July 2014 and will expire on 14 July 2017, at which date you will be eligible for release to parole. In relation to that sentence I fix a balance of sentence of nine months and that balance of sentence will expire on 14 April 2018.

55. In respect of the offence of the attempted armed robbery committed on 11 July, you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of two years. That will commence on 15 July 2015 and expire on 14 July 2017. In relation to that sentence I fix a balance of sentence of one year four months. That balance of sentence will expire on 14 November 2018.

56. In relation to the last offence in time, that is the armed robbery matter which is sequence 3, you are convicted. You are sentenced to a term of imprisonment of two years by way of non-parole period that will commence on 15 July 2015 and it will expire likewise on 14 July 2017. In relation to that sentence I fix a balance of sentence of two years and six months, and that balance of sentence will expire on my calculation on 14 January 2020. You will be eligible for release to parole on 14 July 2017. It will be a matter for the Parole Authority whether you are released on that date. It will depend upon your performance in custody.

57. Any technical matters, Mr Crown?

58. MURRAY: No, your Honour.

59. HIS HONOUR: Any technical matters from you, Ms Mayne?

60. MAYNE: No, your Honour.

61. HIS HONOUR: The effective total sentence I have imposed is five and a half years imprisonment with a non-parole period of three years. You will be eligible for release to parole on 14 July 2017. The balance of sentence on my calculation will expire on 14 January 2020. If you are released to parole, commit offences on parole or you fail to comply with the conditions of parole, the Parole Authority will revoke your parole and you will go back into custody for such period as the parole authority fixes. Do you understand that?

62. OFFENDER: Yes, your Honour.

63. HIS HONOUR: Thank you very much, Mr Weston, I wish you well for the future.

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Decision last updated: 17 August 2015