R v Havet [2021] NSWDC 320

District Court New South Wales

Medium Neutral Citation: R v Havet [2021] NSWDC 320 Hearing dates: 28 May 2021 Date of orders: 28 May 2021 Decision date: 28 May 2021 Jurisdiction: Criminal Before: Bright DCJ Decision: Aggregate sentence of 4 years with a non-parole period of 2 years. Catchwords: SENTENCING — Mitigating factors — Good character — Unlikely to re-offend SENTENCING — Relevant factors on sentence — Form 1 offences — Multiple offences — Totality SENTENCING — Subjective considerations on sentence — Age — Special circumstances Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Firearms Act 1996 (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Cases Cited: Cahyadi v The Queen (2007) 168 A Crim R 41; NSWCCA 1 R v Henry (1999) 46 NSWLR 346; NSWCCA 111 Category: Sentence Parties: Regina (Crown) Nicholais Havet (Offender) Representation: Counsel: Mr T Thorpe (Offender)

Solicitors: Mr D Harvey (ODPP) Ms L Manookian (Legal Aid NSW) File Number(s): 2020/00154596 Publication restriction: Nil

Judgment 1. The offender Nicholais Havet, 22 years of age, appears for sentence in relation to one offence of robbery armed with an offensive weapon, pursuant to s 97(1), Crimes Act 1900 (NSW). The maximum prescribed penalty for that offence is 20 years imprisonment. There is no prescribed standard non-parole period. 2. When dealing with the offender for that offence, the Court is taking into account two further offences on a Form 1 as follows; 1. Larceny relating to the theft of a knife, an offence pursuant to s 117, Crimes Act 1900 (NSW). The maximum prescribed penalty for that offence is 5 years imprisonment; 2. Possess prescribed restricted substance, an offence pursuant to s 16(1), Poisons and Therapeutic Goods Act 1966 (NSW). The maximum prescribed penalty for that offence is 6 months imprisonment. 1. The offender is also being dealt with two further offences on a s 166 certificate as follows: 1. Possess prohibited drug, an offence pursuant to s 10(1), Drug Misuse and Trafficking Act 1985 (NSW). The maximum prescribed penalty for that offence is 2 years imprisonment; 2. Possess unauthorised pistol, an offence pursuant to s 7(1), Firearms Act 1996 (NSW). The maximum prescribed penalty for that offence on indictment is 14 years imprisonment. There is an applicable standard non-parole period of 4 years. When that matter is dealt with summarily, the jurisdictional limit of the penalty is 2 years imprisonment. 1. The offender pleaded guilty to all offences on 19 January 2021. Having regard to the timing of the plea, I propose to allow discount on sentence of 25%. The offender has been in custody since his date of arrest on 23 May 2020. In those circumstances, the sentence imposed today will be back dated to 23 May 2020. 2. The facts in relation to the offence are as follows. At 4.14 am on 14 May 2020 the victim, Stephen Ackland, was working at a Coles Express service station in Killarney Vale. The acting manager, Kerry Cole, was in the office at the rear of the building. 3. At this time, this offender entered the store and was the only customer. He wandered around the store for a few minutes and at 4.18 am he approached the counter and said, "Can I have a packet of Bond Street Gold 40s and a packet of Bond Street Blue 40s?" 4. The victim retrieved two packets of cigarettes from the cigarette cupboard, rang them up on the till and placed them on the counter. This offender then pulled out his phone, then wallet, and then fiddled around for a short period of time before using his right hand to pull a knife out of the left side of his pants. The knife had a black handle and silver blade and was approximately 6 or 7 inches long. After producing the knife, the offender pointed it towards the victim and they had the following conversation: The offender said, "Give me the money out of the till". The victim said, "You're kidding, aren't you?". This offender said, "I hate to do this but I've got kids". The victim said, "I have to cancel the transaction on the till to open it". 1. The victim removed the cash from the till and said to the offender, "There's $70 there, do you want the coins as well?" He also said to the offender, "Do you really want to go to gaol for $70?" The offender picked up the cash and pushed the knife towards the victim in the air saying, "Give me the cigarettes". 2. The victim handed over the two packets of cigarettes and the offender left the store taking the cigarettes and cash. He left through the front door, which the victim had to open from behind the counter. The offender went to the right of the door and then jumped the back fence. The victim then told the acting manager, Ms Cole, that they had been robbed. He activated the hold-up alarm and spoke to a security company by phone. Police arrived a short time later. 3. On that same day, police were notified of the robbery incident. Detective Senior Constable Steven Brown attended the scene and obtained CCTV footage showing the incident. Images from the CCTV footage were released on the New South Wales Police Tuggerah Lakes Police District Facebook page and over the following days information was received, nominating this offender as the person shown on the CCTV. 4. At 6.35 pm on 23 May 2020, that is nine days after the offence had occurred, a number of police went to the offender's home where he was living with his mother, Michelle Havet. The offender's mother answered the door and after explaining why they were there, police were invited inside. Police then had a conversation with the offender that was recorded on body-worn video. 5. The offender said that on 14 May he went to Kmart at Bateau Bay with his friend Brad and saw his mother there. He referred to his mobile to put together a timeline of that day. There was a message on the offender's phone to a person named Reece that read, "Now I'm on the run". The offender said it was because he was kicked out of the house he was staying at and after being accused of stealing items. There were further messages on the offender's phone such as, "If I hold these cunts up with a - will you come pick me up?", and then further, "Then get a knife. Like I might ask for it one more time then get a knife". 6. Police showed this offender images captured from the CCTV at the service station. The offender denied that it was him. 7. Police then searched the offender's house. During the search police located, amongst other things, a Wiltshire Staysharp knife, a black replica pistol, being an M1911 pistol, a resealable plastic bag containing white powder/granules, and steroids. The white powder was tested and confirmed to be 0.21 grams of cocaine. 8. A forensic ballistics examiner conducted a preliminary examination of the replica pistol and confirmed it was an imitation of a real pistol.