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. Form 1 offence 1. The Agreed Facts state that as the offender left a house before he committed the robbery he took with him a black handled Wiltshire knife. It is the theft of that knife that constitutes the Form 1 offence. 2. The offender was arrested on 24 May 2020 at his home address. He took part in two interviews with police. The first interview was lengthy, some three hours, and the offender denied all the allegations. He gave several varying explanations for items found in his room and his conduct and his location at the time of the robbery. Sometime later, the offender told police he wanted to take part in a second interview. 3. During that interview, he made full and frank admissions in relation to the offending. He also asserted that he used Xanax, cocaine, oxycodone and ecstasy prior to the offending. He denied having any memories of the attendant at the service station and said the conversation about having children was a lie to try and get the victim to view him in a better light. 4. Those facts disclose very serious objective criminality. The victim was doing no more than going about his employment when he was confronted by the offender holding a knife. I have no doubt that the whole experience for the victim would have been terrifying given that the victim would have been unaware as to whether this offender was going to use the knife during the commission of the robbery. Both general and specific deterrence are important considerations on sentence for this offence. 5. In assessing the objective seriousness of the offence of robbery whilst armed with an offensive weapon, I have taken into account the following factors: 1. That at the time of the commission of the offence the weapon used was a knife. Clearly, that knife was capable of inflicting injury. The knife was also used to threaten the victim, namely that the knife was held towards the victim in a threatening manner. 2. The amount of property stolen was $70 plus cigarettes. I regard that as towards the lower end of objective seriousness having regard to the value of those items. 3. The offence was committed at a service station in circumstances where the employees of the service station were vulnerable. The offending occurred at 4.14 am. 1. Having regard to those factors, I assess the objective seriousness as below the mid-range. 2. In determining the appropriate sentence, I have had regard to the guideline judgment of R v Henry (1999) 46 NSWLR 346; NSWCCA 111. That guideline relates to an offence of armed robbery. In that guideline, Spigelman CJ set out a number of common features of the offending, and a number of those features are present in the current offence as follows: 1. A young offender with little or no criminal history. This offender is young and at the time of the offending he had one traffic matter on his criminal history; 2. That the weapon used was a knife or some implement capable of killing. Here, this offender did have a knife; 3. That there was limited planning. I do accept there was limited planning. The only planning was to the extent that the offender did arm himself with a knife before he went to the service station; 4. Limited, if any, actual violence but a real threat of violence. I accept that there was limited violence in the current offending but there certainly was a threat made to the victim with the knife; 5. That the victim was vulnerable, being a shop assistant. I accept that this victim was vulnerable; 6. That a small amount was taken. I accept that on the facts of this matter a small amount was taken. 1. The guideline is on the basis of a late plea of guilty. Here, there was a plea of guilty at the earliest opportunity and that does differentiate it from the guideline judgment. 2. With respect to offences that have those characteristics that I have identified, in accordance with the guideline, the sentences imposed should fall between 4 and 5 years for the full term. It is important that the Court reminds itself that the guideline is simply that. It is a matter that must be taken into account on sentence but it does not constrain the discretion of the Court when determining the appropriate sentence. 3. In relation to the offence on the s 166 certificate of possess unauthorised pistol, the Court reminds itself that in sentencing for firearm offences general deterrence has an important role to play. Members of the community must understand that the courts will impose significant punishment upon individuals who illegally possess firearms. 4. Notwithstanding that this firearm was an imitation firearm, it still has the capacity to be used for criminal activity should it come into the wrong hands in the community. Because it imitates to a substantial degree, a real firearm, if it was used by someone for criminal offending, those who are the victims of that criminal offending would not appreciate that it was a replica. 5. That is the rationale behind the Firearms Act treating imitation firearms in the very same way as actual firearms and the reason why the penalties are so severe for firearms and imitation firearms, is because the courts are concerned to ensure that the penalties deter members of the community from the illegal possession of firearms, whether they be imitation or real. 6. In assessing the objective seriousness of the offence of possess unauthorised pistol, there is no evidence before the Court in relation to the purpose of the possession of the firearm. There is no evidence in relation to how long the offender had had the weapon or the circumstances in which he came to be in possession of it. 7. Having regard to it being a replica pistol rather than a real pistol, I am satisfied that the objective seriousness is below the middle of the range. 8. Notwithstanding that it is an imitation pistol, I am satisfied that the s 5 threshold is crossed and a custodial sentence is warranted for that offence, having regard to the rationale behind the Firearms Act and the need to deter others from being in possession of imitation pistols. 9. In relation to the remaining matter on the s 166 certificate, possess prohibited drug relating to the quantity of cocaine found at the house, having regard to the low level of objective seriousness in relation to that offence, I propose to deal with that matter by way of a community correction order. 10. There was no victim impact statement made available to the Court from the victim, Mr Ackland. As I previously indicated, I have no doubt that he would have been terrified during the commission of the offence. One of the purposes of sentencing is to recognise the harm done to the victim as a consequence of the commission of the offence (see s 3A (g), Crimes Act). Subjective circumstances 1. The offender was 21 years old at the time of the offence. He is now 22 years old. He will be 23 in June this year. He has one entry on his criminal history. In 2019, he was dealt with for an offence of novice driver drive with novice range PCA. That matter was dealt with by way of a conviction with no penalty, pursuant to s 10A. 2. Having regard to the absence of any relevant criminal history, the offender is entitled to significant leniency on sentence. 3. The following material was tendered on behalf of the offender: 1. Exhibit 1 - Report of Dr Furst dated 23 May 2021; 2. Exhibit 2 - Letter under the hand of the offender; 3. Exhibit 3 - Letter from the offender's mother Michelle Havet; and 4. Exhibit 4 - Defence written submissions. 1. The offender's background is set out in the report of Dr Furst, and also, to some extent, the letter from his mother. Dr Furst assessed the offender on 15 March 2021 via audio visual link for a period of one hour. 2. The offender reported that he was born in Gosford. He has two older sisters and one older brother. He had two other siblings who are now deceased. His sister Jade died suddenly when he was 3 years of age and his brother passed away when the offender was 11 years of age. The offender reported that both of these events had a very significant impact on himself and his family. 3. He reported that his parents separated in early childhood and he did not maintain a relationship with his father. His mother works as a cleaner and raised the offender and his siblings on her own. He reported that his father is unemployed and had been a heavy cannabis user throughout most of his life. Education and employment 1. The offender reported the following in relation to his childhood. He said he attended Greenpoint Christian Primary School from kindergarten to Year 4 and then St John Fisher Catholic Primary School in Years 5 and 6. He reportedly experienced difficulties in reading and writing and attended special learning classes. He excelled in maths and did not have an intellectual disability. He went on to attend St Peter's Catholic College. He reported being expelled in Year 12 due to lack of attendance. 2. After leaving school, he held various jobs including working at a service station in automotive parts, and for an engineering firm on the Central Coast. He had been studying mathematics at the University of Newcastle for six months before his arrest. He was also working at Repco and a funeral home. The offender's circumstances at the time of the offending 1. The offender reported that he was living with his mother and older sister at Bateau Bay at the time of the offending. He had been drinking heavily and had also been taking Xanax in the week preceding the offending. 2. Immediately before the offence, he reported that he had been kicked out of a house he had been staying in with his friends at Ourimbah, which was likely related to his drinking, drug use and behaviour at the time. He told Dr Furst: "By the end of the week, I had lost reality … [Xanax and alcohol] hindered my decision making severely. I made mistakes. I got myself so inebriated. It's my fault. I made some bad decisions and I'll have to deal with the consequences." 1. I note at this stage that self-induced intoxication by either drugs or alcohol cannot be taken into account as a matter in litigation, on sentence pursuant to s 21A(5AA), Crimes (Sentencing Procedure) Act 1999 (NSW). 2. Here in my view, the relevance of his ingestion of both alcohol and drugs is that it explains why someone who is otherwise a law-abiding citizen, would be involved in such serious and grave criminality. Substance use history 1. In relation to his substance use history, the offender reported that he tried cannabis and amphetamines in the past however, he did not like the effects of those drugs and was not a regular user. He reported using Xanax, cocaine and Oxycontin sporadically for three to six months, including at the time of the offending in May 2020. He reported that at that time he was drinking excessively as well. Medical and psychiatric history 1. The offender reported an unremarkable medical history. 2. In relation to any psychiatric history, the offender reported that he had been seeing a GP at the Grace Medical Centre. He was considering a diagnosis including ADHD and Autism Spectrum disorder however, no firm diagnosis had been made. He also reported that he had been referred to Headspace in Gosford. 3. When being assessed by Dr Furst, the offender did express his regret about the offending. He also acknowledged the impact of his actions on the service station attendant, describing himself as selfish and immature, and his behaviour as unacceptable. He went on to say as follows: "I was working two jobs at Repco and a funeral home. I had money. I was needlessly causing problems. I disappointed my mother and the community." Assessment 1. In the opinion of Dr Furst, the offender did not meet the criteria for any psychiatric diagnosis, despite having a history suggestive of some obsessive tendencies and interests and emotional deficits on the autism spectrum. Dr Furst noted that: "Assuming the history he is providing is accurate in relation to his drinking and drug use, the offender does not meet the criteria for a diagnosis of substance use disorder either." 1. Dr Furst recommended that the offender would benefit from psychological input in relation to his emotional issues, family grief issues and/or his risk of self-harming and behaviour. He also recommended that the offender engage in the EQUIPS (Addiction) course or a similar drug and alcohol counselling course to focus on relapse prevention. Dr Furst also noted that measures to encourage his re-entry into the workforce and to continue his university studies should be encouraged. Additional material tendered on behalf of the offender 1. The Court has also had the benefit of the following additional material. The offender provided a letter to the Court (Exhibit 2). The offender stated as follows: "I wish to express my sincere regret and general remorse for my actions. There is no excuse for committing the robbery. I neither smoke nor needed the money. The only explanation and I wish to make it quite clear that I am not proffering an excuse, is that I was affected by unprescribed substances, which I had foolishly experimented with." 1. The offender confirmed that he is not a regular drug user, nor is he someone with criminal tendencies. I accept each of those assertions. He apologised to the victim, and it appears that he does have insight into the harm caused to the victim. He said whilst he has been in custody he has spent time reflecting upon his youth, and also planning his future. He concluded as follows, "I am confident I will never be before you again". 2. The Court also had the benefit of a letter from the offender's mother (Exhibit 3). It is very clear from that letter that the offender's family remains very supportive of him and is prepared to ensure upon his release from custody that he does obtain the treatment he needs, most importantly, to ensure there is no relapse into drug abuse. 3. In the opinion of his mother, drugs played a significant role in the commission of the offence. As I said, I do accept that. It is wholly apparent that he is not someone that would otherwise be engaged in such aberrant behaviour. It is clear that the offender has also discussed with his mother his feelings in relation to the offending, and it is clear that he now has a much better understanding of the seriousness of his offending. It is intended that the offender reside with his mother upon release from custody. Remorse 1. I am satisfied that the offender has expressed remorse both to his mother and also Dr Furst. In circumstances where those expressions of remorse are not on oath, I do give them limited weight. Submissions on behalf of the parties 1. The Court has been provided with comprehensive written submissions on behalf of the Crown and also from Mr Thorpe of Counsel on behalf of the offender. The Court has had regard to those submissions in determining the appropriate sentence. Those submissions were also supplemented by brief oral submissions during the hearing of the proceedings. Prospects of rehabilitation 1. I am satisfied that the offender has very good prospects of rehabilitation. He is young. He has no other criminal history of a relevant kind. He was gainfully employed before he committed the offence. He was attending university, studying maths. He has the very good support of his family and I have no doubt that his current expressions in his letter that he never intends to be before the Court again, are true. 2. It is for those reasons, I find he has very good prospects of rehabilitation and I also find that he is unlikely to reoffend. I expect this has been a very difficult time for the offender being in custody, and I expect it is a place he would not like to return to in the future. In those circumstances, as I said I would be wholly surprised if the offender was ever before the courts again. Totality 1. In circumstances where I am dealing with the offender for more than one offence, I am required to consider the question of totality. The relevant sentencing principle for the Court to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other. If so, the sentences should be concurrent. But if not, there should be some accumulation (see Cahyadi v The Queen (2007) 168 A Crim R 41; NSWCCA 1). I propose to impose a custodial sentence for the offence of armed robbery, and also for the offence of possess unauthorised pistol. 2. Having regard to the separate and distinct criminality encapsulated by each of those offences, I do propose to make those sentences notionally, partially cumulative. 3. I will impose an aggregate sentence in respect of the offending. I do not propose, as I have already indicated, to impose a custodial sentence for the offence on the s 166 certificate of possess prohibited drug. 4. In sentencing the offender, I have taken into account the Form 1 matters. In my view, neither of the Form 1 matters would have attracted a custodial sentence had they been dealt with as substantive offences. In those circumstances, I do not propose to increase the sentence that will otherwise be imposed for the offence of armed robbery. Special circumstances 1. I am satisfied that special circumstances are established warranting a variation in the ratio between the non-parole and the parole period. It was submitted on behalf of the offender that he would benefit from an extended period of supervision. Also, it is his first time in custody. For those reasons, I am satisfied special circumstances are established. Determination 1. In determining the appropriate sentence, I have had regard to the purposes of sentencing as set out in s 3A, Crimes (Sentencing Procedure) Act. 2. Having considered all possible alternatives in relation to the offence of armed robbery and possess unauthorised pistol, I am satisfied that no penalty other than imprisonment is appropriate pursuant to s 5(1), Crimes (Sentencing Procedure) Act. 3. I have had regard to the objective gravity of each of the offences, the guideline judgment of R v Henry, the relevant prescribed maximum penalties, and the offender's subjective circumstances. 4. I propose to impose an aggregate sentence pursuant to s 53A(1), Crimes (Sentencing Procedure) Act. 5. Pursuant to s 53A(2)(b), Crimes (Sentencing Procedure) Act the indicative terms are as follows: * In relation to the offence of robbery, armed with an offensive weapon, taking into account the Form 1 matters - The starting term for the sentence is 4 and a half hears, discounted by 25% for the plea of guilty, leaving a total term of 3 years and 4 months. * In relation to the offence of possess unauthorised pistol - The starting terms for the sentence is 16 months, discounted by 25% for the plea of guilty, leaving a total of 12 months. 1. Mr Havet, in relation to each offence, you are convicted. 2. I sentence you to a total aggregate sentence of 4 years imprisonment from to date from 23 May 2020 and expire on 22 May 2024. I fix a non-parole period of 2 years to date from 23 May 2020 and expire on 22 May 2022. 3. I direct your release to parole on 22 May 2022. 4. In relation to the offence of possess prohibited drug, you are also convicted. 5. I sentence you to a community correction order for a period of 12 months to date from today, 28 May 2021, and expire on 28 May 2022. 6. The terms of the community correction order are that: 1. You should be of good behaviour; and 2. You appear before the Court if called upon to do so. ********** 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: 19 July 2021