R v Silvano [2021] NSWDC 367

District Court New South Wales

Medium Neutral Citation: R v Silvano [2021] NSWDC 367 Hearing dates: 28 April 2021 Decision date: 28 April 2021 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Imprisonment for 3 years 3 months with a non parole period of 1 year 9 months Catchwords: CRIME - SENTENCE - Aggravated assault and take motor vehicle. Legislation Cited: Crimes Act 1900 (NSW), s154C(2) Category: Sentence Parties: Regina (Crown)

Natalia Silvano (Offender) Representation: Mr Blackley - Stocker (ODPP Campbelltown)

Mr Townsend (Solicitor for the offender) File Number(s): 2020/00009317 Publication restriction: Nil

1. Natalia Silvano, you appear for sentence today in relation to one offence. This involves a aggravated assault and take motor vehicle, a contravention of s 154C(2) of the Crimes Act. The maximum penalty for that offence is 14 years imprisonment. There is a standard non-parole period of five years imprisonment. 2. The facts surrounding the offending are, to a significant degree, contained in an agreed statement of facts which you have signed. For my purposes this afternoon they may be summarised as follows. 3. In early January 2020 you came to know a man called Syed Mohamed Arif Masawi. Mr Masawi, amongst other things, earned income as an Uber driver and it was in that capacity that you came to meet him on or about 2 or 3 January 2020. He delivered you to a house in Claymore. 4. The day after this first meeting with him, you sent him a message by Facebook Messenger and you and he then met and apparently socialised at the home of some of his friends in Ingleburn. 5. On 7 January 2020 Mr Masawi was at a public hotel on Blaxland Road and he met you there. You were not alone. You were in the company of Mr Anthony Harley. You and Mr Harley were playing the poker machines and Mr Masawi lent you $10 to use on those machines at that hotel. 6. After a while, the three of you left the hotel on Blaxland Road and you went to the Raby Tavern where you and Mr Harley used $50 on the poker machines before you were driven by Mr Masawi to Mr Harley's house in Claymore. 7. Once you got to Mr Harley's house, you and he asked Mr Masawi if you could use Mr Masawi's car. The agreed facts say that you and Mr Harley used that car for about three hours. The purpose of its borrowing is not revealed and I am not going to speculate adversely to you about why it was that you and Mr Harley borrowed that car for that period of time. 8. It would seem that after you had been absent for three hours, Mr Masawi became concerned because he sent you a message somehow asking you when you planned returning with his car. 9. It would seem that the experience was not a happy one for Mr Masawi because, when you finally returned with Mr Harley and Mr Masawi's motor vehicle, Mr Masawi left and then took the step of blocking you on his Facebook account and blocking your mobile phone from his. 10. The next night, Mr Masawi got a message from a Ms Marguerite, someone he had never met, but apparently the message was sent by her on your behalf because Ms Marguerite asked Mr Masawi to unblock you - presumably, although it is not said in the agreed facts, both on his Facebook account and on his mobile phone. 11. In circumstances which are unclear in the revised agreed facts, somehow on 8 January 2020 you asked Mr Masawi if you could come to his home. He asked to meet you at the Minto railway station. Apparently you told him that you wanted to repay him the $50 that you had borrowed at the two public houses a day or two before. Consequently, Mr Masawi drove to the Minto railway station at about 11pm on 8 January 2020. A short time after that you arrived at the railway station. You arrived in a vehicle which is described as a red hatchback and it would seem that that vehicle was driven by another woman. 12. Although Mr Masawi went to the Minto railway station to receive the $50 you had borrowed from him, you told him that you did not have any money but rather that you wanted to go to a party in Claymore. 13. As this rather extraordinary conversation was taking place, the red hatchback drove off. 14. Although you had told Mr Masawi you wanted to go to a party in Claymore, what the agreed facts tell me is that you and he drove to an address on Waratah Road, Minto. How that came about is not revealed. But what is revealed is that a short time after you and Mr Masawi arrived at that spot, the red hatchback arrived as well. 15. You told Mr Masawi that the male person who was sitting in the passenger seat of the red hatchback had Mr Masawi's money. 16. Mr Masawi therefore got out of his car and went to the red hatchback and there he saw Mr Harley in the passenger seat. Mr Harley got out of the vehicle and approached Mr Masawi and, it would seem without any warning, punched and headbutted him. Mr Harley repeatedly threatened and hit Mr Masawi and in the process he produced a pair of scissors which he held to Mr Masawi's throat. 17. While Mr Harley was assaulting Mr Masawi in this fashion, you took the car remote from Mr Masawi's vehicle and you drove off in that vehicle; and Mr Harley got back into the red hatchback, which presumably also drove off. 18. As a result of the incident, Mr Masawi was shaken and had a red face and marks across his face when he complained to a person from whom he sought help. 19. It was submitted on your behalf that you were unaware of the plan to rob Mr Masawi of his motor vehicle. That submission is a difficult one to advance. There can be no rational inference from these limited agreed facts that makes any sense at all other than it was a planned robbery of a motor vehicle of which you were fully aware when you embarked upon your activities that night of luring Mr Masawi to the railway station and all that followed thereafter. 20. You have said in your evidence that not only was this not known to you but that you did not take the keys but rather that Mr Harley threw them to you. It was submitted on your behalf that it was at that moment that you agreed to participate in the robbery which Mr Harley was effecting and that you did so out of fear of what might happen to you if you did not cooperate. 21. I am not persuaded on the balance of probabilities of that version. It is inconsistent with the agreed facts which say that you took the keys. It is clear to me from the limited agreed facts that you were, in fact, quite aware of what was going to happen to Mr Masawi that night in terms of Mr Harley, some way or another, effecting the theft of the motor vehicle. The Crown does not say, and I am not persuaded, that you knew that he was armed with those scissors; and I am not persuaded beyond reasonable doubt that you knew that actual violence was going to be inflicted on Mr Masawi. 22. But I am persuaded beyond reasonable doubt that you knew that there was a real risk of violence being inflicted on him by Mr Harley or that Mr Masawi would fear violence from Mr Harley as the robbery was being undertaken. I have come to this view for two reasons: first, because that is the only rational inference on the limited agreed facts; and secondly, I am unable to accept any evidence that you offer unless it is supported by objective, independent, corroborative evidence because, for a variety of reasons, Ms Silvano, I regard you as an unreliable witness. In this regard, by way of example only, I refer to the lies that you told the police in the interview that I saw today seeking to explain what happened that night as a purchase that had gone wrong in which you or someone on your behalf had actually prepared false entries on a mobile phone. 23. In terms of its objective seriousness for an offence of its kind, the offence is a mid-range offence. 24. It is additionally aggravated by the fact that you were on parole; and when I say "additionally aggravated" that is to indicate that it is not part of the assessment of objective seriousness. It is, as I have said, additional. It is part of your subjective case. 25. That subjective case is a very unfortunate one, Ms Silvano. 26. You are 25 years old. 27. You were interviewed by Dr Eagle on two occasions and she has produced two reports. 28. In the first report, amongst other things, Dr Eagle took a history from you about the circumstances in which your mother came to die. I am not going to dwell on it too much, Ms Silvano, in open court because I know that this whole incident is deeply distressing to you. All I think I need to say is that what you told Dr Eagle was nowhere near the truth. 29. The oral evidence that Dr Eagle gave was very instructive, however, because Dr Eagle was closely questioned by the Crown as to the extent to which she relied upon the accuracy of the various histories you had given her in coming to her conclusion that you suffered from complex post-traumatic stress disorder complicated by severe illicit substance disorder. Dr Eagle acknowledged that there was no way that she could know whether what you said was true or not, except she did know that your assertion that your father had killed your mother, whilst your mother was trying to cut your leg off, was not true. 30. What Dr Eagle was able to conclude was that the presentation you made to her when she interviewed you was highly supportive of the diagnosis she made; and that it did not really matter to Dr Eagle whether the allegedly underlying descriptive events actually occurred or not. 31. I accept Dr Eagle's evidence in that respect - that is, I am not necessarily persuaded that the various events that you have referred to actually occurred but your presentation to Dr Eagle proves to me on the balance of probabilities that, for whatever reason, you suffer from a complex post-traumatic stress disorder (with substance abuse issues) and that that disorder had a real causative connection with your involvement in the offending on this night. 32. That mental condition certainly significantly decreases the significance of general deterrence and reduces your moral culpability. However, specific deterrence is still fully engaged, as is the need to protect the community. 33. You have an unfortunate criminal history as a result of your mental health issues which therefore disentitles you to the leniency which in appropriate circumstances can be extended to a first offender. 34. There was a gap in your offending which Mr Townsend (who appeared for you) referred to in his submissions. There was a time in your life, not so long ago, when for a significant period you did not offend; you did not use drugs; you were in a good relationship with a man called Sam (who may have been the only man who has ever been decent to you); and there was a child. 35. But in circumstances not entirely clear to me, although your relationship with Sam was good and you had this little boy, somehow or other you got back on the drugs. That was enough for Sam. The relationship ended. The boy stayed with his father. Unfortunately, that little boy met with an accident. 36. I mention this to show that there is in you some hope. I do not accept the submission made by the Crown that your prospects for rehabilitation are grim. They are not good but they are not completely written off because you have shown that, in the right circumstances, you can come good. I agree with Mr Townsend's submissions that your prospects for rehabilitation are at best very guarded. 37. Because of your underlying mental condition, you have not expressed meaningful remorse. 38. You did, however, plead guilty at an early opportunity and you will be given a discount of 25%. 39. You also provided police with a statement in connection with Mr Harley's involvement in this robbery and Mr Harley, on any view of it, was the moving force, was the more criminally involved in what happened this night. You provided a statement and, it would seem that not long after that statement was served on Mr Harley's lawyers, Mr Harley decided to plead guilty - not, however, to the serious charge which you face. His lawyers were able to negotiate with the Crown for less serious charges, even though the Crown had a statement from you fully implicating Mr Harley. What is more, he is to be sentenced in the Local Court on those reduced charges. 40. But your contribution was significant in obtaining his pleas to those reduced charges. The fact that you have cooperated with authorities is likely to make your time in custody more difficult for you and I am going to allow an additional discount of 15% because of that past assistance. 41. Somewhat unusually, I am also going to allow an additional discount for future assistance. That may seem odd given that Mr Harley has pleaded guilty but, as both the Crown and Mr Townsend have submitted, there is a possibility (not unknown in the courts) that Mr Harley may change his mind before he is sentenced in which event you have given an undertaking to give evidence against him. You will receive a further discount of 5% for future assistance. There is therefore going to be a total discount of 45% from the sentence that you would otherwise have received. 42. I mentioned that you were on parole when you committed this offence. Your parole was revoked and the balance of parole expired I think on or about 10 June 2020. As an act of deliberate leniency, I shall backdate the start date of the sentence to the date that you were arrested, 10 January 2020. 43. I am going to make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. I do that: first, because of your mental health issues, incarceration will be more difficult for you than for many others; and secondly, even though I have concluded that your prospects of rehabilitation are at best very guarded, they would be enhanced by a longer period on parole (even though this very offence for which I am sentencing you today was committed whilst you were on parole). 44. Except for your plea of guilty and the additional discounts, for the offending I would have sentenced you to a term of imprisonment of six years. After the discount of 45%, the term of imprisonment will be three years and three months. Except for the combined assistance discount and if the discount had only been for the plea of guilty, the sentence would have been four and a half years. If I had not made any allowance for future assistance, the sentence would have been three years and seven months. 45. I fix a non-parole period of one year nine months dating from 10 January 2020 and which will expire on 9 October 2021. I fix a balance of one year six months to date from 10 October 2021 and which will expire on 9 April 2023. 46. Whether you are admitted to parole or not, Ms Silvano, will depend very much on how you behave in custody. I have noted that to date there are a significant number of infractions. That behaviour will have to change if you want to persuade the Parole Authority to release you to parole on 10 October this year. You will now go downstairs with the officers, thank you. 47. I order that the two reports of Dr Kerri Eagle (being exhibits 1 and 2) go with the warrants.