District Court New South Wales Medium Neutral Citation: R v Pusey [2020] NSWDC 612 Hearing dates: 01 September 2020 Date of orders: 01 September 2020 Decision date: 01 September 2020 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: A term of imprisonment of 3 years and 3 months, with a non-parole period of 2 years and 1 month: at [13]. Catchwords: SENTENCING — Aggravating factors — Breach of conditional liberty SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Circumstances of offence — Form 1 offences — Objective seriousness SENTENCING — Subjective considerations on sentence — Aboriginal offenders — Drug addiction — Mental illness — Special circumstances Legislation Cited: Crimes Act 1900 Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 R v Henry (1999) 46 NSWLR 346 Texts Cited: Howie J, "Section 21A and the Sentencing Exercise" (2005) 17(6) JOB 43 Category: Sentence Parties: Regina (Crown) Harley Pusey (Offender) Representation: Mr G Gaynor (Solicitor for the Crown) Ms N North (Solicitor for the Offender) File Number(s): 2020/23230 Judgment 1. Harley Pusey, now aged 24, pleaded guilty to one count of armed robbery contrary to s 97(1) of the Crimes Act 1900 carrying a maximum penalty of 20 years imprisonment with no standard non-parole period. There are two matters on a Form 1 to be taken into account as suggested in the guideline judgment (Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146) being enter enclosed lands and take and drive conveyance. 2. He has been in custody since 22 January 2020 and it is common ground that a term of fulltime custody is required and in sentencing Mr Pusey in accordance with the purposes of sentencing, it is unnecessary for me to consider any alternatives. He has pleaded guilty in circumstances justifying a 25% discount on the term of imprisonment. 3. He has a significant record of offending, including a number of periods in custody 4. The facts show that he and his partner, who is two years older than him, on 18 January, went into a property in Nambucca Heads and took a Toyota Hilux. That is the subject of the Form 1 matters. At about 4.30pm on 20 January, he drove into Bungendore in the stolen Hilux with his partner as the passenger. He went to various locations in Bungendore with the intention of committing an armed robbery. He ended up at a produce store. He put a mask around his face and armed himself with a 20 to 25 centimetre knife. The victim, 75 year old victim Mrs (Cirtotti and her five year old grandson, were behind the store counter. He demanded she handed over cash and as he pointed the large knife towards her he told the kid to get out of the way. She froze in fear, she was unable to scream or move. He took the cash register with him as he left the store. 5. He took between a thousand and $2,000 in cash out of the register and dumped the drawer. He drove along the highway, where he was pursued by police. Police arrested him at a service station in Fyshwick two days later. 6. They searched the caravan park cabin where he was staying and found the knife and the face covering and the other clothes that he was wearing in the robbery. The robbery was shown in graphic detail on CCTV in court today. 7. He was arrested and made full admissions. He said he was only committing the offences to provide food and shelter for the two of them and he was remorseful and his intention was only to steal the cash register. He did not think anyone was there. 8. I have a reference from his mother, who is in Charters Towers in Queensland, and says that he suffers an anxiety disorder and depression for the last five years. He lost his sister, Amanda, last year and his other sister in July this year. She eventually wants him to go back to Townsville to be with her. I take into account her thoughts and her request and note her support. 9. There is little dispute between the Crown Prosecutor and Ms North in very helpful and concise written submissions as to objective seriousness and the applicability in general terms of the guideline judgment of R v Henry (1999) 46 NSWLR 346. As the Crown acknowledged, Howie J said in "Section 21A and the Sentencing Exercise" (2005) 17(6) JOB 43 that, "The guideline judgments are offence specific. The facts relevant to a determination of whether or not the guideline applies will generally merely be specific aspects of the aggravating and mitigating factors in s 21A. The will be few, if any, aggravating or mitigating features to take into account once the specific offence-related matters have been considered." 1. I take into account that the victim was 75 years old and she was looking after her five year old grandson and clearly she was vulnerable, which is a Henry category. He was on conditional liberty at the time of the offending and there are outstanding matters in Queensland to be dealt with. 2. I accept, as Ms North puts, that he is horrified by his conduct that day and the impact it would have on the victim. Even though he has not given evidence and been tested on those protestations, the circumstances suggest that he should be and is remorseful. One can understand the assertion that he was homeless and they were attempting to feed and clothe themselves by obtaining money from robberies. Ms North concedes his lengthy record and a previous offence of robbery in company and she submits that it is between the low and midrange of objective seriousness for offences of this kind. I agree. 3. As to his circumstances, he is an Aboriginal man who was born in Western Australia, and has been living in Queensland. He left school in year nine and worked in various manual jobs. He says that his father is transitioning as a transgender person, which has left him confused and isolated. His sister died recently of a drug overdose and he is struggling with the absence from his family. There is a past diagnosis of ADHD and a long history of drug use, including ice, as a factor in his past offending. He clearly needs rehabilitation and for one so young, he needs an active period of support and assistance rehabilitation and reintegration into the community upon his release. 4. The orders that I make are: 1. The offender is convicted of the offence. 2. Taking into account the Form 1 matters (002, 004) I impose a sentence of imprisonment of 3 years, 3 months, to commence on 22 January 2020. 3. I impose a non-parole period of 2 years, 1 month, expiring on 21 February 2022. 4. I find special circumstances. 1. Mr Pusey, three years and three months with two years and one month non-parole period, all right. 2. OFFENDER: Thank you your Honour. 3. NORTH: So is that from 22 January? 4. HIS HONOUR: Yes, that's what I said, from 22 January 2020. My associate will have a copy of the orders shortly. 5. NORTH: Thank you your Honour. 6. HIS HONOUR: Look after yourself in custody and stay out of trouble, okay. 7. OFFENDER: Thank you your Honour. Note – These extempore remarks were revised without access to the court file. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 October 2020