New South Wales District Court CITATION: R v Hartnett [2009] NSWDC 426 HEARING DATE(S): 11/02/09 JUDGMENT DATE: 13 February 2009 JURISDICTION: Crime JUDGMENT OF: Norrish QC DCJ DECISION: Convicted: Sentenced to a term of imprisonment which consists of a non parole period of one year and six months to commence on 17 May 2009 and expire on 16 November 2010. The balance of the sentence will be two years and three months and that will expire on 16 February 2013. Finding of special circumstances. CATCHWORDS: CRIME - Sentencing - break and enter in circumsntances of aggravation - maliciously inflict actual bodily harm LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Thomson and Houlton [2000] NSWCCA 309 (49 NSWLR 383) The Queen v Way (2004) NSWCCA 131 R v Anderson [2008] NSWCCA 211 CASES CITED: R v MLP [2006] NSWCCA 271 R v AJP [2004] NSWCCA 434 Pearce v The Queen (1998) 194 CLR 610 R v Holder (1983) 3 NSWLR 245 PARTIES: Regina Trevor George Hartnett FILE NUMBER(S): 2009/00000118 SOLICITORS: Ms Nicholson - Director of Public Prosecution Ms Hanshaw - Aboriginal Legal Services - Offender SENTENCE 1 HIS HONOUR: Trevor George Hartnett appears today for sentence in relation to an offence to which he pleaded guilty at the Local Court and to which he pleaded guilty again at the District Court. It alleges that he, on 13 January 2008, at Glenfield Park in the State of New South Wales, did break and enter the house of Jared McPherson situated at 31 Goborra Street and within that dwelling house did commit a serious indictable offence, to wit, occasion actual bodily harm in circumstances of aggravation, to wit, that he (Trevor George Hartnett) maliciously inflicted actual bodily harm on the said Jared Michael McPherson. 2 The maximum penalty for this offence is twenty years imprisonment and by reason of the operation of Part 4 Division 1A Crimes (Sentencing Procedure) Act this offence carries with it a standard non-parole period of five years. There is, it could be fairly said in the way the charge has been pleaded, some apparent duplication both in respect of the allegation of the serious indictable offence pleaded and the circumstances of aggravation. No point has been taken in relation to the charge and my reading of s 112 (2) Crimes Act in conjunction with s 105A of that Act does not suggest anything inappropriate about the wording of the charge. 3 The prisoner pleaded guilty at the first reasonable opportunity having pleaded guilty at the Local Court. Thus I propose to provide a discount of twenty-five percent upon the otherwise sentence for the utilitarian benefit of the plea of guilty. Thus, the starting point of the sentence that I believe was appropriate for this matter putting aside of course considerations of the operation of Part 4 Division 1A was a term of imprisonment for five years. 4 The facts of the matter are that at 3am on 13 January 2008 Jared, and his wife Corrine, McPherson were attending to their three day old baby in their bedroom at their home in Glenfield. They heard a noise in the kitchen. Mr McPherson who had just changed his baby's nappy walked to the kitchen and saw his three year old son asleep in the lounge room. He subsequently saw the accused in the kitchen and challenged him as to his presence. Mr McPherson threw the nappy that was in his hand towards the accused hitting him in the head. He then ran towards the accused and started to punch him. The accused and Mr McPherson wrestled. Before Mr McPherson picked the prisoner up and drove him backwards into the dining room wall. 5 The victim, Mr McPherson, saw another male outside the house on the patio throw a glass bottle at the glass sliding door. Mr McPherson hit the accused on the head with a ceramic candleholder. The prisoner threw a dining chair at Mr McPherson, who moved out the way of the chair. The male outside had removed, the security screen door and the prisoner left the house saying, "We're out, we're going". The prisoner and the second male, who has not been identified, ran away. 6 Mrs McPherson who was naturally in a hysterical state rang triple-0 and sought help and neighbours also came to their assistance. Mrs McPherson had given birth by caesarean section three days earlier and had to be taken to hospital for further treatment. Mr McPherson suffered bruising to the left side of the bridge of his nose and forehead, a nose bleed and neck tenderness. The prisoner's fingerprint, in a sense of a right hand palm impression, was found on the exterior front lounge room window. Ultimately it was identified from police records as being the prisoner's palm print and when the prisoner was arrested at Nyngan on 17 May 2008 and charged with another matter with which I will deal later. He was also charged with this matter and he has been in custody since 17 May 2008. 7 The prisoner gave evidence before me about the circumstances in which this occurred. It could not be said anything he said in evidence in any way could be, in its terms, said to be mitigatory of his conduct. He had absolutely no right to be inside the McPherson's house and it is quite unclear as to why he was there. However, when one looks at the overall circumstances of the matter, including the version given by the prisoner, I am quite satisfied the prisoner did not enter the premises for the purpose of assaulting the occupants. 8 It seems to me as a matter of commonsense the prisoner ought to have known, and probably did know, that there were people inside the house or at least somebody inside the house. One might have thought, for example, there was a light on if the parents were attending to their small child. However, there is no suggestion in the facts, or from the prisoner, that he had any knowledge of the identity of the victim Mr McPherson or his family. There is no suggestion whatsoever the prisoner knew that Mrs McPherson had recently given birth to a baby and there is no suggestion that he would have been aware on entering the premises that there was a child in the premises or there was a newborn baby there as well. 9 There is no suggestion the prisoner was seeking to harm the three year old child in the lounge room. There is no suggestion that the was seeking to cause any specific harm to any person. One could speculate about why he and his colleague would want to enter the premises. I am prepared to accept the prisoner was affected by alcohol and probably some prohibited drugs and his reasons for entering the premises may well have been confused. 10 The prisoner told me that he had been to a party and he was heading generally in the direction of his home. I have not been provided with a map of Wagga to suggest that he has accounted his movements in a general sense that was not correct. 11 Certainly the prisoner's history is one of drug and alcohol abuse for a long period of time. I am prepared to accept that he was affected by alcohol and or drugs and this would have clouded his judgment. Certainly, whatever his purpose of entering the house it was opportunistic. There is nothing professional about the break in and enter. The prisoner was not disguised. He did not have gloves on or cover his hands with socks. He left behind a palm print. The whole episode was, it would seem, totally unplanned. 12 The prisoner further became engaged in causing actual bodily harm to the victim because Mr McPherson actively engaged him within the house. I make absolutely no criticism of Mr McPherson. Quite naturally he was absolutely entitled to defend himself and his family and when a drunken man such as Mr Hartnett, affected by drugs, who appears, at least today, to be a well built young man of some size, materialises inside the house, the occupant is fully entitled to fear the worst and to take immediate action to ensure the protection of himself and his family. 13 The injuries suffered therefore by Mr McPherson arose in the course of the struggle commenced by Mr McPherson. However, Mr Hartnett had no right at all to engage Mr McPherson in any resistance. Had no right whatsoever either deliberately or otherwise to cause any injury to Mr McPherson. Thus he is liable to be sentenced in relation to this particular offence having caused the injury. 14 I am prepared to accept in the assessment of the objective facts that the prisoner may not have had the time, or the capacity, to make a judgment about his escape. I acknowledge that the prisoner left the premises letting Mr McPherson know that he himself was no longer a threat to Mr McPherson in anyway shape or form when he uttered the words, "We're out, we're going". This of course is an acknowledgement by the prisoner of his knowledge of the other man, at least outside the premises. But it is also an acknowledgment by the prisoner that he did not seek to cause any further harm to the victim. Certainly it would seem Mr McPherson had got the better of him in the course of the struggle. 15 I am mindful of the fact of the distress this episode would cause Mr McPherson and Mrs McPherson. As I pointed out earlier, there is no evidence that the prisoner was aware of any particular people being inside the premises and Mrs McPherson's distress and her need for medical attention was more incidental to the commission of the offence rather than anything designed by the prisoner, or recklessly contemplated by him. 16 The prisoner had escaped the house, as I said earlier, and ultimately left Wagga. He would have been living in Wagga for some period of time, as best I can work it out, something less than a year before the commission of this offence. The prisoner, in fact on 17 May 2008 was in Bourke a city, or town, that he knew well, having lived in Bourke and Dubbo and other places in the central west and north west throughout his adult life. 17 On that date, 17 May 2008, the prisoner and two further unidentified co-offenders broke into commercial premises. They kicked a hole or knocked a hole in a wall of a service station and they endeavoured to remove property from the service station including the electronic till behind the front counter. An alarm was activated. The till was emptied as it turned out and some property stolen. The prisoner himself left emptied handed. The prisoner and his colleagues caused considerable damage to the premises and the total amount of compensation sought by the owner who was uninsured or did not claim on insurance was $1,605. The prisoner was identified by closed-circuit television footage. The prisoner was at that time, the subject of an outstanding warrant in relation to the matter with which I am concerned. Police had spoken to him later in the day. The prisoner was allowed to leave and catch a bus out of town. However, when police became aware of the warrant for the current matter, he was arrested at Nyngan and taken off the Countrylink bus and, as I said earlier, has remained in custody since. 18 I have the facts in relation to that offence in Bourke. Its relevance to these proceedings is that the prisoner ultimately appeared at the Bourke District Court, pleaded guilty to an offence of aggravated breaking and entering and committed serious indictable offence in company and was sentenced to three years imprisonment with a non-parole period of eighteen months. That sentence was to date from the date he came into custody and therefore his salient in the matter with which I am concerned. 19 I appreciate of course the prisoner was not on bail in relation to the current matter when that second offence was committed, but in sentencing him for the matter today, clearly I must have regard to the circumstances of the other offence and structure a sentence that gives effect to the totality of the criminality involved which must if necessity involved at the very least a partial accumulation. 20 The prisoner's criminal history does him no credit and does not entitle him to any particular leniency although in my view, ultimately, it is not an aggravating factor. 21 It could be fairly said that whilst he has a record of appearances in the Children's Court, in the Local Court for a range of offences, he does not have a record in my view of serious violence and certainly had no record, prior to the events of the current matter in January 2008, of committing offences involving the violation of the privacy of individuals and violating their sense of safety in the manner in which this offence speaks. I will not go through the detail of his criminal history. As I said it is largely a history of matters in the Local Court, although the prisoner does have a conviction for assault occasioning actual bodily harm, for which he received an eighteen month s 9 bond. 22 He has a conviction for common assault at the young Local Court for which he was fined. Importantly on 2 October 2007, he was convicted of larceny, ordered to pay $300 costs, and placed on a good behaviour bond pursuant to s 9 for a period of twelve months from that date. At the same time he was convicted of two other relatively minor offences including custody of a knife in a public place for which he was fined. Thus, the offence with which I am concerned as with the offence dealt with at the Bourke District Court, previous to these proceedings, was an offence committed whilst subject to conditional liberty. The prisoner, when giving evidence, seemed to have absolutely no idea of the obligations required of him by a good behaviour bond. He seemed to suggest to me, and I do not have reason to doubt that he believes this to be true, that his bond was at an end and the obligations under it had expired. 23 How he could have that belief is beyond me, bearing in mind the bond was for twelve months and it commenced in October 2007. It seems to me, perhaps one of the problems is that the full implications of such orders of the Court are not fully explained by the legal representative, or by the officers of the Court. Although I have difficulty accepting the latter, it is also the case that the prisoner, given his lifestyle and what would seem to be a serious lack of responsibility and obligation over a long period of time, does not, as a general rule, pay much heed either to the consequences of his conduct or the significance of court orders. In fairness, of course, this in a context of a history of drug and alcohol dependency. It may well be, to be frank, that the prisoner from time to time is in no state to maturely contemplate and consider the implications of such orders. 24 The prisoner has been the subject of supervision by the Probation and Parole Service over a lengthy period of time. I note, relevant to what I am proposing in relation to this matter, that the prisoner whilst he has been in prison before, has only been in prison for relatively short periods of time and before the commission of the current offence with which I am concerned, he had not actually been sentenced in the District Court and as far as I can work out from his record. Although he has had the benefit of suspended sentences and bonds, he has not previously been the subject of parole. In other words, he does not have a history of serious offending and certainly does not have a history of parole violation, which would be a very salient matter in this sentencing exercise. 25 In relation to his background, I note the evidence he gave. He is an Aboriginal man from a family that has had a number of difficulties. Not uncommonly he has been raised by his extended family, particularly an aunt and a grandmother. He grew up in an environment of witnessing domestic violence over a number of years. His mother lived with a man who was not his father for a long period of time and his father, I am told and I am prepared to accept, was violent towards his mother. Drug and alcohol problems began early for him and alcohol abuse was a feature of his domestic circumstances as a child. In other words, there were people in his life who provided no leadership or example for him and to some extent it seems his life has followed a pattern that has been set out by others and in that sense, he could be said to be, very much a victim of his social circumstances. He has, as I said earlier, been involved with drugs and alcohol over a long period of time. He told me in his evidence that whilst he has not had any intensive professional help. He has on at least three occasions gone "cold turkey" to try and get off drug dependency, particularly amphetamine dependency and morphine dependency. 26 But that has not been successful as the current situation reveals. He, whilst in custody on this occasion has been introduced to a programme at Junee called "Get Smart". As I understood his evidence, and I do not have a transcript of that, the programme will provide him in due course, when he can complete it, with the opportunity of looking at matters such as anger management, drug and alcohol rehabilitation. He has been moved about in custody pending the outcome of this matter he was variously at Wellington and Bathurst. Before coming to Junee, I am well aware, from discussing the programmes at Wellington Gaol with a senior officer of the Department of Corrective Services, that programmes at Wellington are limited. In Bathurst, there were no programmes for him. 27 There were courses that he did not undertake because he was essentially in transit. Of course, he has been in Junee only a short period of time awaiting sentencing for these matters. He has two sons who are twins, who live with their mother in Sydney. He has had little contact with them. He has a partner with whom he has had a relationship for some period of time. But the character of his domestic circumstances could be said to be dysfunctional on one view or certainly haphazard on another. He is currently receiving methadone. The level of intake daily, as I understand it, is eight-five milligrams. He started on twenty mills, went up to 100, and he is now diminishing his intake. He would be well advised to be free of methadone by the time he leaves prison. As I said earlier, he has variously lived around western and north western New South Wales and was only in Wagga, as I understand it, for a relatively short period of time. 28 The Probation and Parole Service report, I have noted, confirms the relationship with his partner over the last four years. It notes the supportive relationship with his mother. He has limited contact with his father. He was educated to year 10 standard. He did undertake part of a TAFE course, but he has had very little employment experience. His behaviour in custody appears to be quite acceptable and he gets positive reports from correctional staff, which to my mind is a good sign of his capacity to conduct himself in a lawful way on his release at least to some extent. The prisoner said to the Probation and Parole Service, as he did to me, that he was under the influence of morphine and alcohol at the time of the offence. He expressed regret to this Court and expressed regret to the Probation and Parole officer, for his conduct and I took his expressions of remorse and regret to be genuine expressions. 29 He did not give evidence in an arrogant or over confident way. He seemed somewhat defeated by his current circumstances. The summary of the Probation and Parole Service is simply a summation of the true situation. The prisoner finds himself before Court in relation to offences associated with his drug and alcohol abuse. He has some insight into his offending behaviour and he is taking some steps to address his circumstances but he certainly has a long way to go before he takes full responsibility for his conduct. He is in need of a high level of intervention by the Service and it needs to address matters such as substance abuse, anger management and also of course employment programmes, because he has little experience of employment. 30 This sentencing exercise of course is not straightforward. The first matter to be addressed and the most significant matter is of course, the operation of Part 4, Division 1A Crimes (Sentencing Procedure) Act relating to standard non parole periods and, particularly within that Part, ss 54A to D. I was not assisted by any particular submissions in relation to the operation of those provisions, other than the general submission that, in the context of his plea of guilty and a finding of 'special circumstances', which I am prepared to make, I should fix a non parole period other than that fixed by the legislation as a standard non parole period for this offence. In the limited time available to me in my researches, I found the decision of R v Anderson [2008] NSWCCA 211 and, particularly, a judgment of the Chief Judge at Common Law McClellan J, to which I referred in the course of submissions, if my memory serves me correctly. I have had particular regard to [16] - [17], principally [16] of that judgment, where his Honour discusses the leading authorities in relation to the approach to be taken when sentencing after a plea of guilty, where there is a standard non parole period. They are the cases of Way [2004] NSWCCA 131, AJP [2004] NSWCCA 434, R v MLP [2006] NSWCCA 271 (also reported at 164 A Crim R 93). I note the summary of the relevant principles of Kirby J quoted by the Chief Judge at Common Law, where his Honour also summarised what Simpson J had said in AJP. 31 The extract set out in [16] of McClellan J's judgment, although the editing of the electronic copy that I have is a little unclear as to the extent of quotations and the like, sets out the template for my approach in relation to this matter. To briefly summarise the matter, because it is not for me to state the law but merely apply the law as I understand it, in order to consider the standard non parole period, bearing in mind that this is a relevant offence, first of all, I must come to a conclusion as to whether the offence is in the mid range. However, a plea of guilty is one reason to depart from the standard non parole period. So is a finding of 'special circumstances' and also findings of relevant aggravating and mitigating factors under s 21A of the Act. I also note essentially that the hypothesis as to what is a mid range offence is one that involves approaching the matter intuitively, not having to analyse it or over analyse it. Circumstances that affect the assessment of the objective circumstances will be an assessment of the actus reus and the consequences of the conduct and also matters impinging upon the mens rea, such as the prisoner's mental state, the motivation and the like. However, personal circumstances of the offender, that do not explain the offender's conduct on the occasion in question, do not affect the assessment of the objective circumstances. 32 Even if the matter is not one within the mid range, one must still regard the standard non parole period as a guide post and the manner that Way discussed that matter (at [122]). Of course, as other cases preceding Way discussed matters such as the purposes of sentencing as guideposts in the sentencing exercise they did not noting they point in different directions occasionaly. In relation to this matter I have anxiously considered whether it could be said to fall within the mid range noting, what was said in Way about the mid range of offence being not necessarily being a narrow band, and also what has been said about the matter in the cases cited by McClellan J. Of course, this is not a matter of mechanical or mathematic precision. Most sentencing exercises defy such precision. But if I was to categorise this offence, I would categorise it at the borderline of the lower mid range for these reasons: Firstly, noting the way the charge is pleaded, it is a charge alleging against the accused that he did intend to occasion actual bodily harm, and it is a charge that pleads that he maliciously inflicted actual bodily harm on the victim, again some what of a tautology in the circumstances. 33 There are some other features of the case. Secondly, the prisoner did not know the victim and I do not accept that he went to the premises with the plan of hurting anybody. Thirdly, it was an unplanned offence, it was opportunistic. Fourthly, the circumstances of maliciously inflicting actual bodily harm occurred while Mr McPherson was well within his rights engaging him in a struggle. It may well have been that if Mr McPherson had stood his ground, that the prisoner would not have struck him. It seems to me that the prisoner sought to escape, or withdraw, when the opportunity arose. Although he did throw a chair in the general direction of Mr McPherson. As I pointed out his judgment was clouded although his intoxication was not to my mind a mitigating factor per se. In assessing where it stands in the range of offences of this type, I am mindful of the operation of s 21A of the Act, which is relevant to this issue as has been held in Way and other cases. 34 I am mindful that the offence was committed in the presence of a child under the age of eighteen years. I am mindful the offence was committed in the home of the victim and his wife. I am mindful of the fact that the prisoner was on conditional liberty. Two of these matters are of course clear aggravating factors established under s 21A(2) which are not specifically pleaded in the offence. However it should be fairly said in relation to both mitigating and aggravating factors, that where they are found in a particular case, in their assessment there will be factors that vary in intensity. The significance of an aggravating factor and its level of intensity, if I could use that expression, will be very dependant upon the context in which the aggravating factors arise where found and the circumstances in which they came to pass. 35 In finding that the offence was committed in the presence of a child under the age of 18 years, it must be fairly said that that fact may well have been a matter that the prisoner was oblivious to but certainly not planned on his part. The child, hopefully, will be too young to remember the experience. There is no evidence the child is traumatized. Certainly the prisoner must have known these were domestic premises, therefore he would have known that he was committing the offence in the home of the man that confronted him. But there is no evidence that the prisoner went to the premises with a view of confronting Mr McPherson or anybody else. Certainly committing the offence whilst on conditional liberty is an aggravating factor which cannot really be excused or explained away. 36 With regard to mitigating factors, I am prepared to find that ultimately the injury suffered by the victim was not substantial. He suffered some bruising and the like. It was injury clearly consistent with a struggle that occurred and there is no suggestion of the prisoner seeking to arm himself as some object to further the conflict. 37 The offence was not planned, nor is it part of organised criminal activity. The prisoner has entered a plea of guilty which itself is a mitigating factor but of course he receives a discrete discount for that in accordance with the guideline judgment of R v Thomson & Houlton for the utilitarian benefit of the plea of guilty as I have pointed out. It was put to me that he has good prospects of rehabilitation. That I cannot agree with at this particular point of time. Certainly he has some insight, as the Probation and Parole Service says, certainly he wants to undertake programmes, but his prospects of rehabilitation will not be really known with greater certainty until later in his sentence or when he is released to parole. In relation to this sentencing exercise and the context of the obligation upon myself to take into account Part 4, Division 1A, I am mindful of the other matters that I need to consider including the maximum penalty, the need to consider hypothetical cases within the mid range. 38 I hasten to say in proof of this particular charge, I bear in mind of course that the presence of aggravating and mitigating factors of themselves do not require the Court where known to increase or reduce the sentence for the offence save for the way in which they must be taken into account as discussed in Way and the other cases. Ultimately, I have concluded that by reason of both the partial accumulation of the sentence that I will impose upon the sentence imposed at the Bourke District Court and by reason of the fact that the prisoner is now serving the most significant gaol sentence that he has received, and because he will be subject to his first non parole period, he will need professional assistance to be able to adjust to community living and will need professional assistance in relation to the matters set out in the Probation and Parole Service report, that there are "special circumstances" that arise pursuant to s 44 Crimes (Sentencing Procedure) Act. 39 Of course, I am required to address that issue in the context of not depleting the non parole period so that it is reduced below the minimum term which justice requires the offender to serve. But, on the other hand, it seems to me that I am also required in fixing the non parole period in this matter to give proper regard to the issue of totality of criminality. It was suggested to me in the course of submissions that I should follow some obiter observations in the decision of Holder from the early 1980s where the Court of Criminal Appeal, through Street CJ, considered the concept of 'totality of criminality' and the way in which that could be achieved in sentencing for multiple offences (see (1983) 3 NSWLR 245). 40 Of course I am only sentencing for one offence but I am mindful of the facts and the outcome of the sentence at the Bourke District Court. If Holder is to suggest that I should adjust the sentence that I impose to give effect to totality, that is decrease it, then I do not believe Holder represents the law now in New South Wales. I think it is quite clear that R v Pearce, the decision of the High Court ((1998)194 CLR 610, at [45]) clearly states that in sentencing for multiple offences, a Court is required to fix an appropriate sentence for each offence, before turning to the issue of totality of criminality and the consideration of matters such as accumulation and concurrency. Whilst I am not sentencing for the first offence, the sentence imposed at the Bourke District Court is a reality and I must therefore consider what is an appropriate penalty in the circumstances with that reality. That includes fixing an appropriate non parole period. 41 Partial accumulation, as I have pointed out, is a "special circumstance" in fixing a non parole period. In this particular matter, it seems to me that the commencement date of the sentence I will impose should not be in accordance with what was submitted by learned counsel for the accused. It was submitted I should commence the sentence from the date of the proceedings two days ago. In my view that would be wrong, I gave some consideration to whether I should make the sentence entirely accumulative upon the non parole period. In all the circumstances, to give full effect to the concept of totality of criminality as it is discussed in the leading authorities, I propose to date the sentence from one year into the sentence imposed at the Bourke District Court and make the appropriate adjustment of the non parole period as I have said. 42 In sentencing the offender I have had regard to s 3A Crimes (Sentencing Procedure) Act. There should be additional punishment for this matter over the earlier sentence and there should be a sentence which deters this prisoner and others from committing 'like' offences, such as 'like' offences might occur in similar circumstances to this. In relation to the matter I am also required to make the prisoner accountable and denounce his conduct, recognise the harm to the victim but also promote his rehabilitation. In sentencing the offender, I am mindful of his background of disadvantage and a background of some dysfunction in his upbringing through no fault of his which has somewhat set the path perhaps for his current journey. 43 I cannot do anything about his disadvantages in life and he eventually, like all people, whether they be Aboriginal or non Aboriginal, must take responsibility for their lives at some stage. But as I said, I was impressed with the way he presented himself. I appreciate when he is affected by drugs or alcohol he may well be a totally different person as we all know from our personal experiences of different individuals but he does now have the chance to reflet upon these events and take steps on his release with the assistance of the Probation and Parole Service to try and better his life if his social circumstances permit him. I do appreciate given the lack of employment opportunity in Western New South Wales and given no doubt his difficult financial circumstances, he has no real assets and no real employment experience. He will face many challenges. But that is no reason not to at least give him some opportunity in the future. I have taken into account all else that has been put to me by his counsel. I have also acknowledged in passing that I regard him as being contrite and note he has expressed remorse and believe that I can find his expression of contrition as a mitigating factor. 44 Ultimately, however, there must be a sentence that extends the current non parole period to which he is subject and which requires him to consequently be subject to the direction of the Parole Board or Authority as to when he should be released to parole, because the sentence I impose will leave the decision as to whether he will be released to parole and when that will be in the hands of the Authority. I cannot direct that be done. 45 Stand up Mr Hartnett, thank you very much: In relation to the offence to which you pleaded guilty, you are convicted. You are sentenced to a term of imprisonment which consists of a non parole period of one year and six months. That will commence on 17 May 2009 and that non parole period will expire on 16 November 2010. That is the earliest date that you can be released to parole. The balance of the sentence will be two years and three months and that will expire on 16 February 2013. The total sentence of imprisonment is three years and nine months. I have made a finding of special circumstances as I said, you will be eligible for release to parole on 16 November 2010. Do you understand that? 46 OFFENDER: Yep. 47 HIS HONOUR: Yes any technical matters Madam Crown? 48 No your Honour. 49 HIS HONOUR: Any technical matters Ms Grimshaw? 50 GRIMSHAW: No your Honour. 51 HIS HONOUR: Anyway thank you Mr Hartnett you can go with the officers, thank you. oOo 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. 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