R v Dargin [2021] NSWDC 653

District Court New South Wales

Medium Neutral Citation: R v Dargin [2021] NSWDC 653 Hearing dates: 26 November 2021 Decision date: 03 December 2021 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Aggregate term of imprisonment of 6 years 6 months with a non parole period of 3 years 3 months. Catchwords: CRIME - SENTENCE - robbery armed with a dangerous weapon - acquiring a pistol while subject to a Firearm Prohibition Order - driving whilst disqualified (2nd offence) - COVID 19 - seriously concerning conditions of offender's detention. Legislation Cited: Crimes Act 1996 (NSW) s97(2); Firearms Act 1996 (NSW) s74(1); Road Transport Act 2013 (NSW) s54(1)(a). Cases Cited: R v Henry (1999) 46 NSWLR 346; Bugmy v The Queen (2013) 249 CLR 571; R v Zerafa [2021] NSWDC 547. Category: Sentence Parties: Regina (Crown)

Elyas Dargin (Offender) Representation: Mr Moore (ODPP Campbelltown)

Ms Stares (Counsel for offender) File Number(s): 2020/00254635 Publication restriction: Nil

Judgment 1. Elyas Dargin, you appear for sentence today in relation to three offences. 2. First, robbery while armed with a dangerous weapon. This is sequence 1. This involves a contravention of s97(2) of the Crimes Act. The maximum penalty for that offence is imprisonment for 25 years. There is no standard non-parole period. Whilst there is no standard non-parole period, there is, however, a relevant guideline judgment, R v Henry (1999) 46 NSWLR 346. 3. Secondly, acquiring a pistol while subject to a Firearm Prohibition Order. This is sequence 6. This involves a contravention of s74(1) of the Firearms Act. The maximum penalty for this offence is imprisonment for 14 years. There is no standard non-parole period. 4. Thirdly, driving a motor vehicle whilst disqualified (second+ offence). This is sequence 3. This involves a contravention of s54(1)(a) of the Road Transport Act. Ordinarily, this offence would be dealt with in the Local Court, but you have consented to this Court dealing with that matter. The maximum penalty for this offence in the Local Court is imprisonment for 12 months and /or a fine of 50 penalty units. There is an automatic licence disqualification of 12 months and a minimum period of disqualification of 6 months. 5. In relation to the first offence (sequence 1), you have asked this Court to take into account two matters on a Form 1 which I have certified: driving a conveyance which was taken without the consent of the owner (sequence 2); and having goods in personal custody suspected of being stolen (sequence 4). 6. The facts surrounding the three offences and the two matters on the Form 1 are contained in a document entitled "Agreed Statement of Facts". Slightly recast by me as to style, but not substance, they are as follows. 7. At around 1:00pm on 16 August 2020, you were riding a motorbike which stopped at the front of a newsagency on Hoddle Avenue, Bradbury. Where you had travelled from is not revealed in the Agreed Statement of Facts. 8. The motorbike had been stolen from Wolli Creek four weeks earlier. At the time you were riding it on 16 August 2020, it had no registration plates, the ignition barrel was damaged, and the keyed fuel cap had been bored out. 9. You were riding this motorbike without the consent of the lawful owner, and you knew it was stolen. This constitutes the first matter on the Form 1 (sequence 2). 10. At the time you were riding that motorbike, you were disqualified from driving (from 20 October 2015 to 22 February 2024). This is the offence of driving a motor vehicle during the period of disqualification (sequence 3). 11. You were wearing a motorcycle helmet and dark glasses, and you were carrying a large sports bag. 12. When you got off the motorbike, you left it running; you went into the newsagency. The shopkeeper was standing behind the counter. You made enquiries about the price of several items, and then you asked for a packet of cigarettes. As you did so, you raised the visor of the helmet; you were wearing a mask underneath it. 13. You then started searching around in the bag you were carrying and, ultimately, you removed a pistol from that bag and pointed it directly at the victim's chest. I have seen CCTV of the whole incident, and there was only a very small distance between the pistol and the shopkeeper's chest. 14. Unsurprisingly, the shopkeeper was immediately terrified when he saw that pistol – it was a 6mm Airsoft calibre ASGK Tokyo Marui model TSW repeating air pistol. Such a pistol is an airgun within the meaning of the Firearms Act. It is also a pistol as defined by the Firearms Act. It is reasonably capable of being raised and fired by one hand, and it is less 65mm in length. The Agreed Statement of Facts does not reveal whether the pistol was in working order, but that ambiguity was not known to the shopkeeper who, as I have said, was terrified, and justifiably so, when he saw you holding the pistol. The Agreed Statement of Facts also do not reveal how, or when, you acquired that pistol – nor does any other evidence. 15. You began yelling and screaming at the shopkeeper demanding that he give you cigarettes and money. The shopkeeper opened the cash register and you started removing money from it. The shopkeeper started taking packets of cigarettes from the shelves and placing them in your bag, and then you emptied the entire contents of the cash register into that bag. 16. Throughout the incident, you continued to point and wave the pistol at the shopkeeper, and you continued to yell at him. 17. Once you had filled the bag with cash and cigarettes, you turned and ran out of the shop, in the course of which – as is seen on the CCTV footage – some items fell out of the bag, but what those items were is not known. 18. You were in the shop for a total of approximately 3 minutes. 19. These are the facts concerning sequence 1. 20. You ran from the newsagency and mounted the motorbike which stalled. The shopkeeper ran after you, shouting that he'd been robbed. 21. Nearby witnesses grabbed you and held you against a wall. The shopkeeper assisted in detaining you. You, nevertheless, managed to break free and ran off, dropping the bag (which contained the pistol and the stolen goods) behind you. 22. One of the witnesses later identified you from a photographic identification parade. And, also, your DNA was recovered on the motorbike and the helmet which linked you to those items. 23. At the time of this incident, you were subject to a Firearm Prohibition Order which had been made on 12 July 2016 and served on you on 19 July 2016. Being in possession of that pistol on that day constitutes a contravention of that order. That is sequence 6. 24. The bag which you used in the robbery, along with other items, had been stolen from a home in Ingleburn on 23 July 2020. That bag was reasonably suspected of being stolen or otherwise unlawfully obtained. That is sequence 4. 25. You were in police custody between 19 August 2020 and 31 August 2020, but you were not arrested in relation to the matters that you are to be sentenced for in that period. Instead, you presented yourself to the police on 1 September 2020 and, it would seem, made admissions on that occasion. You have been in custody continuously since that date – and the term of imprisonment which I shall impose at the end of these remarks will be backdated so as to commence on 1 September 2020. 26. It is necessary for the Court to make an assessment of the objective seriousness of each offence for an offence of its kind. In this regard, sequences 1 and 3 are mid-range offences; and sequence 6 falls just below the middle of the range. 27. Insofar as the two matters on the Form 1 are concerned, sequence 2 will result in a slight increase in the sentence for sequence 1; however, sequence 4 will not result in any increase in the sentence for that sequence. 28. Each of sequences 1, 6 and 3 is additionally aggravated because, at the time you committed the offences, you were on parole. It should not be necessary for me to say this, but apparently it is. The use of the word "additionally" indicates that that consideration was not taken into account in assessing the objective seriousness of any of the offences. 29. Your further subjective circumstances were given to the Court through the report of Ms North (a psychologist) dated 28 September 2021; an affidavit made by you on 23 November 2021; and your sworn oral evidence on 26 November 2021. 30. Unless otherwise indicated, I am satisfied of the following matters on the balance of probabilities. 31. You are now 23 years old; you were 21 years old at the time of the offending. You are "of Aboriginal heritage". 32. From a young age, you were exposed to family violence and substance use. As Ms North says in her report, it was a "socially impoverished background". 33. You and your siblings were removed from your mother's "care" when you were about 12 years old – after which, you were placed in foster care. 34. It was at that age that you began using illegal drugs – ice, heroin, and cannabis – as well as alcohol. Ice and heroin have been your primary (and consistent) drugs of "choice" in the following 10 years. 35. Between 15 and 18 years, you were either in foster care or placed with relatives – neither of which was satisfactory – and only added to the trauma you had already experienced in childhood. 36. Your childhood was, therefore, profoundly dysfunctional and, as a result, your moral culpability is reduced in the manner the High Court has directed sentencing judges to take into account – see Bugmy v The Queen (2013) 249 CLR 571. 37. Your long criminal offending began as a juvenile (although that offending is not to be held against you), and you spent many occasions in juvenile detention – where you completed the School Certificate and obtained some vocational qualifications – including the very useful trade of bricklaying. Although you have never had legitimate employment in the community, you have worked whilst in custody. 38. Juvenile Justice was also where you were repeatedly sexually assaulted by a female officer. This added another layer of trauma to your life. 39. And in 2018 or 2019, one of your brothers (who was only 15 or 16 years old) was tragically killed. 40. Your criminal offending continued after you became an adult and, in fact, in the last four years, you have spent only 4 months in the community. The "custodial chronology" set out in paragraphs 5 to 18 of the Crown's written submissions and the table in paragraph 35 of your counsel's submissions are both helpful and instructive. 41. Your previous offending as an adult is not an additional aggravating factor insofar as sequences 1 and 6 are concerned; however, your previous offending is an additional aggravating in relation to sequence 3 – you have approximately 8 prior convictions for that offence. 42. However, your previous offending is such that you are not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender. 43. Moreover, it is your extensive record which is the main distinguishing feature from the guideline judgment of Henry (that, and the fact that your pleas of guilty were not late). 44. You suffer from three serious psychological disorders: opioid use disorder; stimulant use disorder; and Post-Traumatic Stress Disorder. 45. It is only in your most recent period of custody that you have started to address your underlying mental health issues. 46. And insofar as the drug issues are concerned, you are currently on the buprenorphine program. 47. Although your mental health issues mean that you are not a suitable vehicle for the full application of general deterrence, it still has relevance. Furthermore, specific deterrence and the need to protect the community are considerations which are fully engaged (as is the need to encourage your rehabilitation). 48. You are genuinely remorseful for the offending which brings you before the Court today. 49. I earlier mentioned that you had not previously had any legitimate employment in the community. You have said in your oral evidence, however, that you have recently received an offer of employment as a scaffolder. The person who made that offer has not provided the Court with any letter or other direct evidence; and whether it will still be open to you upon your eventual release is far from clear. 50. You have also given oral evidence that you entered into a new relationship with a young woman shortly before you were taken into custody. In that evidence, you said that she makes you "want to do better"; and that no one had been as supportive for you as she has been in your whole life. Again, there is no letter or other direct evidence from her – although, I was impressed with the sincerity with which you gave that evidence (not only on that topic, but generally). 51. And you said, in your oral evidence, that you had renewed support from an aunt and uncle who have offered you accommodation upon your eventual release – and that your "partner" currently lives with them. Again, there is no letter or other direct evidence from them. 52. In all the circumstances, I accept the submissions of both the Crown and your counsel that your prospects for rehabilitation are guarded. 53. No sentence for any of the three offences other than full-time imprisonment is appropriate. 54. I intend imposing an aggregate sentence. It is, therefore, necessary for me to state the indicative sentences which underpin that ultimate aggregate sentence. In this context, a 25 per cent discount, to which you are entitled because of your early pleas, will be applied to each of those indicative sentences. 55. Before turning to those indicative sentences, I note that the COVID-19 pandemic has had a significant adverse impact on your time in custody to date – it has interfered with visiting rights; it has interfered with access to courses; and it has interfered with mental health treatment. And the pandemic may well continue to have such an impact in the future. In this context, I express my astonishment (to put it mildly) that, as at 26 November 2021, when you appeared before me for this sentence hearing, you gave (unchallenged) evidence that, despite requests by you, you still had not received your first vaccination injection against COVID-19 – whereas approximately 92.5 per cent of the general population has received its second injection. In R v Zerafa [2021] NSWDC 547, I had occasion to note the extremely concerning conditions of that offender's detention in the context of the pandemic. I express my very serious concerns in relation to yours. 56. In relation to sequence 1 (and taking into account the matters on the Form 1), except for your plea of guilty, the indicative sentence would have been imprisonment for 6 years 6 months; after the discount of 25 per cent, the indicative sentence is imprisonment for 4 years 10 months. 57. In relation to sequence 6, except for your plea of guilty, the indicative sentence would have been imprisonment for 4 years; after the discount of 25 per cent, the indicative sentence is imprisonment for 3 years. 58. In relation to sequence 3, except for your plea of guilty, the indicative sentence would have been imprisonment for 10 months; after the discount of 25 per cent, the indicative sentence is imprisonment for 7 months. 59. In the result, for sequences 1, 6, and 3, I impose an aggregate term of imprisonment of 6 years 6 months. 60. I make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. I make that finding because of your age; your risk of institutionalisation; the fact that a custodial sentence will weigh more heavily on you because of your mental health issues; and to assist your prospects of rehabilitation. 61. I fix a non-parole period of 3 years 3 months to date from 1 September 2020 and which will expire on 30 November 2023. 62. I fix a balance of 3 years 3 months to date from 1 December 2023 and which will expire on 28 February 2027. 63. You are disqualified from driving for a further 12 months from 23 February 2024. 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: 03 December 2021