New South Wales District Court CITATION: Regina v Lovoni [2006] NSWDC 179 JUDGMENT DATE: 11 May 2006 JURISDICTION: Criminal JUDGMENT OF: Norrish QC DCJ DECISION: See para 49, 50 and 51. CATCHWORDS: Criminal Law - Sentence - robbery - young offender - parity - special circumstances. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 R v Way [2004] NSWCCA 131 R v Brown [1999] NSWCCA 323 R v Kaiva (unrep, 09/11/98 NSWCCA) R v Webb (unrep, 09/11/98 NSWCCA) Callaghan v R [2006] NSWCCA 58 R v Palu (2002) 134 A Crim R 174 Regina v Doan [2000] NSWCCA 317 R v English [2000] NSWCCA 245 CASES CITED: R v Kappa (1993) 69 ACR 64 R v Henry (1999) 46 NSWLR 346 Engert (1995) 84 A Crim R 67 R v Jurisic (1998) 45 NSWLR 209 R v Lattouf (unrep, 12/12/96 NSWCCA) Pearce v The Queen (1998) 194 CLR 610 R v Israil [2002] NSWCCA 255 Wright v R (1997) 93 ACR 48 Thomson & Houlton (2000) 49 NSWLR 383 PARTIES: Regina Daniel Lovoni FILE NUMBER(S): 06/11/0065 SOLICITORS: Ms Chappell, DPP Mr Evenden, Legal Aid Commission of NSW SENTENCE 1 HIS HONOUR: The prisoner Daniel Lovoni appears today for sentence in relation to two offences which were committed on 6 June 2005. The first offence in time is an offence alleging that the accused on that date at Surry Hills did rob Mohammed Sultan of certain property, to wit a blue "Nokia" brand mobile phone the property of the said Mohammed Sultan whilst being in company with Andrew Carr and Amy Simon. The second offence in time, committed within twenty minutes of the first offence, is an allegation that he on 6 June 2005 at Surry Hills did break and enter the dwelling house of Mohammed Sultan situated at 2/96 Goodlet Street, Surry Hills and then in the said dwelling house did commit a serious indictable offence, to wit, stealing, in circumstances of aggravation, to wit, he did deprive the said Mohammed Sultan of his liberty. 2 Each of these offences I am informed carries a maximum penalty of twenty years imprisonment. There is no standard non parole in relation to the offence of robbery in company but there is a standard non parole period under Pt 4 Div 1A Crimes (Sentencing Procedure) Act in respect of the offence brought pursuant to s 112 (2) Crimes Act, that is the break and entering in circumstances of aggravation. In this matter the prisoner pleaded guilty at the Local Court and was committed for sentence to the District Court in relation to both charges. Thus the standard non parole period is not directly relevant to the sentencing proceedings in accordance with the judgment of R v Way, as this is not a sentence after trial. However the standard non parole period may in appropriate circumstances be regarded as some guidepost or in extrinsic indicia of the standard of sentencing required for offences of this type. I will come back to that matter shortly. 3 The facts of the matter are of course in any sentencing proceeding critical in assessing the objective gravity of the offences to be the subject of sentences. 4 Shortly before 1am on 6 June 2005 the victim Mr Sultan was using a public phone somewhere near his premises in Surry Hills. He was approached by two young people Andrew Carr and Amy Simon, the persons identified in the charge. The prisoner Daniel Lovoni who is an older person, and I will deal with their respective ages shortly, was a few metres away. Both Carr and Simon aggressively approached the victim, Carr grabbed his shirt collar while Simon searched through his jacket, demanding his wallet and money. Property was removed from him as particularised in the charge. 5 The Crown's case against the prisoner Daniel Lovoni was that he was a principle in the second degree in respect of this offence. His presence and acquiescence, amounting to an assistance and encouragement of the offence that rendered its commission more likely. Having said that, there is no evidence before me that the prisoner actively participated in the robbery and I am quite satisfied on the totality of material available to me that he neither previously knew of the plan to rob Mr Sultan or gave any direction in that regard. 6 The second offence in time arose out of the circumstance in which Mr Sultan, after being asked by Carr if he lived nearby, was escorted against his will to his property in a block of units. The victim opened the front door and allowed the offenders to walk in as he was extremely scared and frightened as to what would happen to him. Again it is clear that the prisoner did not take a leading role in the formulation of the plan to commit this crime. The offenders are said to have effected what is called a constructive break into the premises and that arose out of the threatening conduct towards the victim earlier. Once inside the unit the offenders, after closing the wooden door behind them, began it is said to ransack the unit, looking for cash and valuables. The victim shared the unit with a friend Mr Huynh who was also at home at the time. 7 The facts revealed to me that Carr and Simon took a leading role in this ransacking. Carr searched cupboards, Simon entered the bedroom of Huynh, Simon removed property from the bedroom, at one stage calling out "I've got the wallets". Carr entered the bedroom and punched Sultan in the face under the left eye with his right fist and then pushed Sultan in the chest causing him to fall to the bed. It is said in the facts specifically the striking of the victim by Carr was outside Lovoni's contemplation in respect of the offence and the Crown does not allege this circumstance of aggravation against Lovoni. 8 Various threats and demands were made by both Carr and Simon. There is no evidence of the prisoner being involved in the making of those threats. These two co-offenders continued their search. The one act of the prisoner contributing to the commission of the offence whilst inside the premises was the wheeling of a mountain bike belonging to Huynh in order to take the bike when he left. 9 The Crown case against the prisoner is that he took part in the offence by encouraging its commission through his presence and by wheeling the mountain bike to the front door. It is quite clear on that concession by the Crown the prisoner can be seen to have a much lesser role than the two co-offenders. 10 Mr Huynh, not unreasonably, eventually armed himself and ran at the three offenders. The three offenders ran from the unit and the victims ran after them. Eventually Simon was caught, or detained for a period of time by Sultan. Mr Lovoni escaped. Eventually Simon escaped although she was injured and eventually was admitted to hospital with injuries from her struggle with Mr Huynh. 11 The police attended upon the home address of the prisoner later that same day. He was arrested and cautioned and according to the facts before me cooperated fully with the police. He immediately volunteered his involvement in the offences the previous night, he provided the police with the clothes that he had been wearing during the course of the offences. When taken to the police station he spoke freely with the police advising that he had smoked heroin and marijuana before the offence and that prior to the time of offending and at the time of offending he was in his words "off his head". 12 He explained the circumstances in which he met Simon and Carr having been at Ms Simon's sister's unit earlier that evening and confirmed that account in his evidence before me. The prisoner in the interview with police said that he was effectively accompanying Simon and Carr on that particular night and was not party to any agreement between the other two in relation to committing any offences on the way home. He gave detailed accounts of what happened, which are consistent with the facts alleged against him by the Crown. He denied taking any property out of the house and expressed his regret for his conduct and admitted his stupidity. A certain amount of property was recovered having been abandoned, or not carried away. There is no suggestion in the facts the prisoner was responsible for the identification and removal of the property which is shown in the facts. 13 In his evidence before the Court the prisoner said in relation to the circumstances of the commission of the offence that he had known Amy Simon from school, although she was a year or two behind him. He had only known Andrew Carr for a short period before and at the time that he left the home of Simon's sister, all he wanted to do was go home and was thus drawn into this offence in circumstances where he thought that was the plan of the co-accused. 14 I should point out, as I foreshadowed earlier, that the co-accused as I understand it were arrested and charged. The precise details of what charges they faced I do not know but on the facts alleged by the Crown in this matter I would assume that they were charged with either similar or identical charges to the ones with which I am concerned. On one view of it they committed a more serious crime in relation to the break and enter offence given the striking of the victim for which the prisoner is not responsible. As I understand the matter with this inadequate information, Mr Carr who at the relevant time I am informed was sixteen years of age, was sentenced at the Bidura Children's Court on 22 November 2005 to a twelve month control order with a six month non parole period commencing in September 2005. Simon was sentenced at the Bidura Children's Court on 20 December 2005 and the offences apparently were generally adjourned with various conditions relating to her residence and her conduct and her association with others as well proposals in relation to her rehabilitation. 15 The prisoner of course was older than these offenders. The prisoner was born as I understand it on 8 May 1984 and has just turned twenty-two years of age. He would have been twenty-one years of age at the time of the commission of the offences. I am not informed as to the criminal histories in detail of the co-offenders. I assume for the purposes of sentencing that their records if any are not as great as this particular offender. 16 In relation to this offender's criminal history his first charging, according to his criminal history, was in September 2003 for possessing a prohibited drug. The prisoner has had, I am quite satisfied from his evidence and other matters, a long history of involvement in the use of prohibited drugs and this is reflected in his criminal history. With regard to his use of drugs and alcohol, he started at a very young age, I am informed it was something of a reaction to very tragic circumstances relating to the death of a very close friend who was very badly burnt. This was a traumatic event for the prisoner and given his lifestyle and his associations it was not long before he was abusing alcohol and prohibited drugs, graduating from cannabis through to methamphetamine products and heroin. The methamphetamine and heroin drugs were usually smoked, the prisoner is not an intravenous user of those drugs. 17 In November 2003 he committed some offences of dishonesty for which in June 2004 he was variously fined. In July 2004 he was charged with another offence of dishonesty for which he was granted a six months term of imprisonment, suspended pursuant to s 12 Crimes (Sentencing Procedure) Act but the bond granted in that matter was revoked and he was sentenced to six months imprisonment on 30 August 2004. The Probation and Parole Service report suggests that he did not cooperate with the Probation Service. There was an appeal to the District Court and in lieu of the term of imprisonment he was placed on a bond pursuant to s 9 Crimes (Sentencing Procedure) Act for a period of two years commencing on 16 December 2004. Thus the offences with which I am concerned were whilst on that bond. 18 Unfortunately however in the meantime he had been charged with what I understand to be two separate charges of breaking, entering and stealing. At the Magistrate's Court in October 2004 he was sentenced to twelve months imprisonment with a six month non parole period. On appeal, heard at the same time as to the other appeal to which I referred, the non parole periods were reduced to four months, however the total sentence of twelve months stood. The twelve month sentence commenced on 30 August 2004, the non parole period thus would have concluded in late December 2004. It is apparent from this that the prisoner was in breach of his parole when he committed these offences, and certainly was subject to conditional liberty. The Parole Board revoked his parole I am informed and that period required to be served of five months and twelve days commenced from 6 June 2005. 19 One of the issues in this matter, and there are many issues that arise in the sentencing in this matter, was the issue of the commencement date of any sentences I must impose. I have come to the conclusion that the commencement date should be the date the prisoner came into custody in relation to these matters, notwithstanding the fact that the prisoner has been required in the meantime to serve the balance of the earlier granted parole. The learned Crown Prosecutor who provided helpful submissions in relation to a number of matters submitted to this Court that the approach the Court should take would be one of commencing any sentences after the period of time required for the prisoner to serve the balance of his parole. I have formed the view that that is not the appropriate way to approach this matter. 20 The Crown took me to one authority on this issue, as I understood the Crown's submissions, and that was the decision of R v Brown [1999] NSWCCA 323. I have noted what their Honours have said in that judgment in relation to an appeal against the inadequacy of sentence of one of my brother judges. However the criticism of the matter at first instance by the Court of Criminal Appeal was that the effective sentences imposed by the learned sentencing judge amounted to "no sentence at all". That is not the case here. The circumstances here having regard to the sentences I propose to impose are somewhat different. 21 I have had to undertake some research of my own without the assistance of counsel and there are competing authorities in relation to this issue of the extent to which when sentencing an offender to a term of imprisonment, the period of time in custody since arrest taken up by serving the balance of parole may be relevant. Of course the fact that the offence was committed whilst on parole is a relevant aggravating factor and has been in sentencing for many years. It is a specific aggravating factor to be taken into account under s 21A (2) Crimes (Sentencing Procedure) Act in the appropriate case and I feel this is clearly the appropriate case. However there is authority for the proposition that where it is taken into account as an aggravating circumstance it is still appropriate for the Court to backdate the sentence to be imposed, taking into account the time spent in custody after the commission of the offence so that the offender is not effectively penalised twice for the breach of parole. This is a matter that was the subject of discussion with the learned Crown and counsel for the accused and that discussion no doubt has been recorded. 22 There is, in my research, several authorities that deal with this issue, particularly the decision of Kaiva (Fatu) NSWCCA 9 November 1998, applied in the decision of David Webb NSWCCA 9 November 1998. Of course the decision has been considered in other judgments, most recently the decision of Callaghan [2006] NSWCCA 58. The reality is, for the reasons that were identified in the discussion with counsel, to impose any sentences accumulative upon the balance of parole would amount to some extent some double dipping and I believe in this matter it is appropriate therefore to backdate the sentences to the time the accused came into custody. 23 With regard to the other subjective circumstances of the prisoner apart from his criminal history, I note the prisoner is a person who has some identification with the aboriginal community, having a Fijian mother and an Aboriginal father. He grew up in the Redfern area and then at the age of about ten or twelve as I understand it, certainly in his early teens at the latest, he moved to the Eastlakes Mascot area. His father died when he was seven years of age and the history that he has given to the psychologist suggests a family history of some substance abuse. He has had recent tragedy with his sister's husband dying at the age of thirty from chronic ill health. As I have earlier indicated when he was approximately thirteen years of age his friend tragically died after being very badly burnt. It would appear on the evidence available to me that his friend was admitted to hospital and lingered for some months. This had a significant affect upon him in a range of ways, although I note in his history that he struggled on at school until year ten, notwithstanding some cognitive disabilities to which I will refer in a moment and of course abuse of alcohol and prohibited drugs. 24 He gave evidence before me that he had been a smoker of methamphetamines and heroin and had been using those drugs for some weeks before the commission of the offences and I have already outlined the circumstances that he described on the night of the offence. Since being in custody he has had some contact with his family. He sought on his own initiative to make contact with the aboriginal alcohol and drug counsellor in custody but for various reasons not of his making he has not been able to undertake any counselling. 25 I was, in the context of his intellectual capacity, very impressed with the evidence of the prisoner and the prisoner himself. He said certain things to me that showed to me, at least now, some insight into the matters that have caused him to offend in the past. He is anxious to undertake some form of rehabilitation programme. He is anxious to undertake some education programmes and training programmes yet is handicapped by not only intellectual limitations but also a sad history of never having had any employment or training in his life. He has had outpatient treatment at Langton Clinic, being on the buprenorphine programme and has been on methadone. I was impressed to understand that since coming into custody he stopped using methadone, as I understood his evidence, or has certainly decreased his use of methadone seven months ago and he states that he has not been using drugs whilst in custody. A brief check of his custodial record reveals in terms of matters relating to his conduct whilst in custody that since June 2005 there is one minor matter involving some dispute of a physical type, presumably with another inmate, but no references to any positive urine analysis to prohibited drugs. 26 The prisoner was, as I indicated, very anxious to consider a rehabilitation programme and there is evidence before me that Benelong's Haven at Kempsey, a rehabilitation programme specifically designed to treat people from the prisoner's community, was willing to take the prisoner. The programme at Benelong's Haven is one of twelve months and in fact the acceptance of the prisoner at Benelong's Haven was the foundation stone for the submissions put very skilfully on behalf of the prisoner particularly addressing the issue of whether I should grant the prisoner a remand under s 11 Crimes (Sentencing Procedure) Act. I do not need to dwell upon that matter, it was the subject of some discussion but I did not feel this was a matter that was suited to a remand. It seemed to me that this Court would be no better informed after a remand for the appropriate disposal of the matter and even if the prisoner successfully completed the Benelong's Haven programme, it seemed to this Court that it would inevitably require the prisoner to be committed back into custody for some period of time, which in my view would be more cruel than the approach that I have taken. 27 This aspect of the matter has been discussed in several judgments, most notably in the judgment of Howie J in Palu v R and for the reasons identified by his Honour it is a rare circumstance where a remand will be granted pursuant to s 11. This case was not such a case. However I have taken into account as relevant in sentencing the prisoner, the prisoner's interest in a rehabilitation programme and his acceptance by Benelong's Haven and I trust the parole authorities will give him that opportunity in due course. 28 If I could turn to the myriad of matters that arise of principle very quickly, other than the ones that I have already discussed that need to be taken into account in sentencing this prisoner. In no particular order of importance I firstly deal with the issue of the relevance of the penalties imposed upon the other offenders. I am limited in my knowledge of the circumstances of those matters for the reasons I have outlined. However it is quite clear on the facts of these matters that those younger persons were clearly the ringleaders of these offences. They took by far the leading role and it was just the misfortune of the prisoner to be in their company that he got dragged into the commission of these offences. 29 The first offence in time the prisoner was a principal in the second degree on the Crown's own account and concession. Clearly no issue of strict parity arises. The co-offenders were dealt with in a Children's Court jurisdiction where there is a philosophy of sentencing considerably different than that in this Court for obvious reasons. Also there were jurisdictional limits upon what the Court could impose by way of custodial penalties if the Court saw fit. Also this prisoner was on parole which I assume the other offenders were not, in fact I am happy to assume for the purposes of this exercise that they had no prior offences. 30 However it is well known to the courts of course that, within reason, mere youth is not a matter that prevents offenders behaving in a criminal way and in a deliberately criminal fashion, and this is the case in this matter. In sentencing this prisoner of course it is critical to my approach to the matter to understand the limited role of the prisoner and the leading role of the others. In the limited time available to me since this matter came before me I have considered a number of authorities dealing with the issue of parity of sentencing where co-offenders are dealt with in other jurisdictions with limited sentencing jurisdiction compared to this Court or alternatively offences are dealt with in this Court where they may have been dealt with in courts of limited jurisdiction. One such case is the case of Doan. I have been drawn to a decision of English by the parties, that is an unreported decision of June 2000. It is clear to my mind when one analyses it that whilst no issue of strict parity arises, the penalties imposed on the co-offenders, particularly the penalty imposed on Mr Carr, is not entirely irrelevant to the sentencing proceedings, particularly where it can be fairly said that this offender had a lesser role than that offender and I have approached the matter on that basis, slightly constraining the approach that otherwise would apply if this matter did not arise for consideration. Particularly in Doan I note the approval of the approach in R v Kappa (1993) 69 ACR 64, discussed at para 43 in the decision of Doan [2000] NSWCCA 317. 31 In relation to the robbery matter the decision of R v Henry and ors (1999) 46 NSWLR 346 is to be considered. Although this is an offence of robbery in company, there are a number of decisions of the Court of Criminal Appeal saying that the guideline for armed robbery has relevance to sentencing offenders charged with robbery type offences, particularly carrying the same maximum penalty such as robbery in company. In this matter of course so far as the robbery is concerned, whilst the prisoner is legally culpable for the offence of robbery in company, he is culpable as a principal in the second degree. The guideline judgment is concerned with the activities of a person acting as a principal in the first degree one might have thought, having regard to the criteria that are identified in the guideline by the Chief Justice. The judgment of Henry is referred to by the Crown. I bear in mind of course that guideline judgments are precisely that, guides to enable the sentencing discretion of judges in courts such as this to be structured, but they do not have the power of binding precedants and of course every case must be determined on its facts. 32 As was approved by Wood CJ at CL in Henry, from the judgment of Gleeson CJ in Engert, it is erroneous in principle to approach the law of sentencing as though automatic consequences flowed from the presence or absence of particular factual circumstances. Every case requires the making of a discretionary decision in the light of the individual case and in the light of the purposes to be served by the sentencing exercise. The learned Chief Justice in the very first guideline of Jurisic adopted with some qualification with approval the observations of Mahoney ACJ in Lattouf about the need for individualised approach to sentencing to ensure that justice was done in the individual case. 33 But in considering an appropriate penalty for this I have taken into account that guideline judgment. I have noted s 21A Crimes (Sentencing Procedure) Act and I have identified the most significant aggravating factor that arises pursuant to subs 2, that is that the offender was subject to parole and also subject a bond to be of good behaviour. 34 With regard to relevant mitigating factors arising under subs 3 the prisoner has shown remorse for the offence. I can not say that the prisoner has good prospects of rehabilitation, nor can I say that the prisoner is unlikely to re-offend however he has better prospects if he is given the opportunity to undertake appropriate rehabilitation programmes and has an extended period of parole supervision. 35 In my view thus there are special circumstances, other than the special circumstance that arises from the partial accumulation of the respective sentences. Obviously in accordance with Pearce v The Queen I am required to fix an appropriate sentence for each offence and then turn to the issue of accumulation or concurrency. I accept the submission of the Crown in light of the circumstances of this matter that there should be some partial accumulation of one sentence upon another, although the two offences are very closely related. I should also, of course, in sentencing the prisoner have regard to the totality of any sentences I would impose by that accumulation. 36 With regard to the Probation and Parole Service report it confirms the prisoner's remorse for his involvement in this offence. There seemed to me in his evidence and in the account he has given to Dr Lennings and to the Probation and Parole Service a considerable degree of melancholy for the prisoner in finding himself in the current situation by reason of what could be called an unfortunate coalescence of circumstances not of his making as the facts reveal. 37 In determining there are special circumstances I note the failures of supervision and parole in the past. The record of lack of cooperation is clearly noted in that report but on the other hand the report acknowledges the history of drug abuse and dependence which would affect his conduct. The Probation and Parole Officer says that: "whilst the prisoner has failed to respond favourably to opportunities offered to him in the past or to adequately address his serious addictive behaviour, long term residential rehabilitation requires close consideration. However success in overcoming his addiction relies heavily on his willingness to seriously confront his substance abuse. He is suitable for medium to high level of intervention by the Service and a case plan would need to be formulated to include strategies to address his needs particularly in relation to alcohol and drug use and his poor employment history." 38 The Probation and Parole Service report clearly confirms the need for an extended period of parole supervision, not only to assist the prisoner in the wider community in a range of ways, but to assist him to adjust to community living because it is a sad fact that the prisoner is greatly institutionalised to this point of time. 39 In assessing this matter and determining both the appropriate penalties and the structure of the penalties, I have had very close regard to Dr Lennings' report. I do not propose to go through it in detail however what is significant in that report apart from the history the prisoner has given not only of his drug usage but of his psychological state is the fact that Dr Lennings with appropriate testing has determined that the prisoner: 40 falls into the border line mentally retarded range for ability, and is no better than the bottom five per cent of the population. He says: "he is quite clearly a person of very low cognitive function whose coping skills are compromised as a result". 41 In the context of his history of drug usage this is a significant matter. This is not a case that raises directly what has been discussed in decision such as Engert to which I made earlier reference ((1985) 84 ACR, 67 and 71) and in Henry where Wood CJ discussed the relevance of mental abnormality to issues such as personal and general deterrence and other judgments along those lines such as Israil [2002] NSWCCA 255 and Wright v R (1997) 93ACR at 48. On the other hand in my view the intellectual disability of the prisoner is very significant in this matter insofar as it reflects upon the circumstances of his life up until the present time and the need for him to receive professional assistance. 42 The conclusion of Dr Lennings is that given his dysfunctional childhood, his low cognitive function and of course his drug and alcohol problems and his reaction to the trauma of the death of his close friend, the prisoner's criminal offending is largely a product of his poor coping and his substance abuse. He has few social supports and very few life skills and without the opportunity of gaining life skills he will continue to offend and thus his prognosis for the future is accordingly bleak. Association with delinquent peers is a significant matter and that is made clear in this case. He recommends a rehabilitation programme involving a residential component, a programme which is "culturally appropriate" would be the best programme for him. Alternatively the Bridge programme run by the Salvation Army. 43 Having regard to Dr Lennings' views on the matter, an experienced and respected psychologist, I am of the view that in recommending that the prisoner be placed in residential care that should be a matter left to decision by the Probation and Parole Service, or the Parole Board, at the appropriate time. 44 With regard to the issue of special circumstances that arise in this matter and warrant the exercise of the discretion available under s 44 Crimes (Sentencing Procedure) Act to adjust the non parole period, as I have said there is partial accumulation of sentences which is a relevant matter to the exercise of that discretion and the other features of the matter to which I have referred. 45 I have had regard of course to all the submissions put by the Crown and for the accused and I thank the Crown very much for the detailed written submissions. The various matters identified by the Crown have been properly taken into account. There should be some element of personal and general deterrence in this matter, that is why I am fixing terms of imprisonment, but the terms of imprisonment in this matter, notwithstanding the serious allegations bought against the accused, must to some extent be mitigated or ameliorated by reason of firstly, and most importantly, the particular role of the prisoner and the way in which he was drawn into the offence and, secondly, the unfortunate background of the prisoner which has led him to the circumstances in which he finds himself. 46 Finally in this regard by reference to the history of substance abuse, I note what is said about drug addiction and its relevance to sentencing to armed robbery offences in the decision of R v Henry, particularly by Wood CJ at CL, at para 2 73. Clearly in this matter it is relevant to the issue of the impulsivity of the offence. This is not a matter where it could be said of the prisoner's involvement at least that there was any planning on his part. It also is relevant to the state of mind of the prisoner and particularly the capacity of the prisoner to exercise judgment, such as judgment to withdraw from the scheme devised by his co-accused. 47 Of course his history of drug dependence is relevant to his prospects of recidivism and rehabilitation as discussed by Dr Lennings. The prisoner is not at the crossroads but I bear in mind in relation to the matter that the prisoner to some extent may be viewed as a person, given his cultural and other history, as coming to drug addiction not clearly as a matter of direct personal choice but as a result of coalition of circumstances beyond his control. In this regard, particularly given his aboriginality, I note in the decision of Henry the observations of Simpson J at pp 411 to 412 which in my view have salience in this particular matter. 48 Thus having regard to the various issues that I have identified I make the following orders. 49 Firstly in relation to the offence of robbery in company committed on 6 June 2005 you are convicted. You are sentenced to a term of imprisonment by way of non parole period of twelve months to date from 6 June 2005 and to expire on 5 June 2006 and the balance of the sentence is one year and four months. The starting point for that sentence I calculate to be three years but I have given you a twenty-five per cent discount for the utilitarian benefit of the pleas in accordance with the guideline judgment in Thomson and Houlton as I have for the other matter. The balance of sentence in that matter will expire on 5 October 2007. 50 In relation to the breaking entering and stealing in circumstances of aggravation committed on 6 June 2005, you are convicted. You are sentenced to a term of imprisonment by way of non parole period of six months to date from 6 June 2006 and to expire on 5 December 2006. In relation to that matter I fix a balance of sentence of two years and six months to date from 6 December 2006 and to expire on 6 June 2009. That will mean if you are released on parole you will be subject to parole supervision for two and a half years. 51 I recommend that on your release to parole that you be admitted to a suitable residential rehabilitation programme. In fixing that non parole period I have taken into account the special circumstances I have identified as warranting the significant adjustment of the otherwise appropriate non parole period. 52 Now, madam Crown are there any technical matters from you? 53 CHAPPEL: No your Honour. 54 HIS HONOUR: Any particular matters from you sir? 55 EVENDEN: I'll just raise this your Honour. Could I just clarify the sentences. I think your Honour said in relation to the robbery in company matter that there'd be a six month non parole period from-- 56 HIS HONOUR: No I didn't, no I said there'll be a twelve month non parole period from 6 June 2005 expiring on 5 June 2006 and a six month non parole for the break and enter in circumstances of aggravation dating from 6 June 2006 and expiring on 5 December 2006. That's what I thought I've said. I've read from my notes, if there has been any slip of the tongue. In my view the second offence is more serious for the reason that it involved the taking of Mr Sultan against his will, even though there was the same maximum penalty and it was an offence committed after the first offence. So that to my mind in the context of the criminality is a relevant, if I can use the word rather unwisely "aggravation". 57 EVENDEN: And just to clarify your Honour, so there was a six month non parole period for robbery in company? 58 HIS HONOUR: No. 59 EVENDEN: Sorry, a twelve month. 60 HIS HONOUR: There's a twelve month non parole period from 6 June 2005 expiring on 5 June 2006. Cumulative upon that is a six month non parole period for the break and enter and stealing in circumstances of aggravation dating from 6 June 2006 and expiring on 5 December 2006 and a balance of sentence of two and a half years. That makes a total sentence for that offence of three years, recognising a twenty-five per cent discount for the utilitarian benefit of the plea. That is what I have thought I have said and if I did not say that that is what I intended to say. 61 EVENDEN: And the balance of sentence in relation to the first matter? 62 HIS HONOUR: One year and four months. That makes for that matter a total sentence of two years and four months, which I calculate to be three-quarters of three years, recognising a twenty-five per cent discount for the utilitarian benefit of the plea of guilty. 63 EVENDEN: And your Honour recommended that the Parole Service considers a residential programme? 64 HIS HONOUR: Exactly, that is exactly what I said. 65 EVENDEN: I understand. Your Honour there's one matter that I would seek to raise and that is that property was seized from Mr Lovoni at the time of his arrest that included some shoes which he is anxious to get back. I have spoken to the officer in charge about that and he has asked that your Honour make an order that the exhibits be returned. 66 HIS HONOUR: I direct that all exhibits be returned, including the property of the prisoner to the prisoner. Now Mr Lovoni you understand the sentences I have imposed. 67 OFFENDER: Yes. 68 HIS HONOUR: What do you understand the sentences to be in total? 69 OFFENDER: If I don't get parole, I'll probably get out '09. 70 HIS HONOUR: Say that again, I'm sorry? 71 OFFENDER: If I don't get parole, I'll probably get out '09. 72 HIS HONOUR: No no that is not what happens. No, your parole period expires in December 2006. That is December this year. If you are given parole you get out then. But you are on parole until early or mid 2009. Do you understand that. That is two and a half years after December. 73 OFFENDER: Yes. 74 HIS HONOUR: So the total sentence is four years dating from 6 June 2005, that is last year, with a non parole period of eighteen months. Do you understand that? 75 OFFENDER: Yes. A non parole period eighteen months. 76 HIS HONOUR: Dating from last year. Do you understand that? 77 OFFENDER: Yes. 78 HIS HONOUR: Thank you. 79 ADJOURNED ********** 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.