R v Gogani [2013] NSWDC 280

District Court New South Wales

Medium Neutral Citation: R v Gogani [2013] NSWDC 280 Hearing dates: 26/07/2013; 09/08/2013 Decision date: 09 August 2013 Before: S Norrish QC Decision: Count 1 - Sentenced to a term of imprisonment of 7 years and 6 months with a non parole period of 4 years and 9 months. Count 2 - Sentenced to a term of imprisonment of 1 year and 6 months. Catchwords: CRIMINAL - Sentence after trial - conspiracy to break and enter and commit serious indictable offence, larceny - lack of contrition - special circumstances. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Pearce v The Queen (1998) 194 CLR 610 Postiglione v R [1997] HCA 26 Jimmey v R [2010] NSWCCA 60 R v Hemsley [2004] NSWCCA 228 R v De La Rosa [2010] NSWCCA 194 Henry v R (1999) 46 NSWLR 346 R v Callaghan (2006) 160 A Crim R 145 Pettersen v R [2013] NSWCCA 20 Green v The Queen [2011] HCA 49, (2011) 244 CLR 462 Markarian v The Queen [2005] HCA 25 Category: Sentence Parties: Crown Yashir Gogani - offender Representation: Ms C Dobraszczyk - Crown Mr Healy - offender Director of Public Prosecutions Phillip Ryan Solicitors - offender File Number(s): 2011/00287337

sentence 1HIS HONOUR: Yashar Gogani appears today for sentence in relation to two charges to which he pleaded not guilty at trial, but in respect of which he was found guilty by a jury in May this year. The first count alleges that he, between 27 January 2011 and 22 March 2011 at Sydney in the State of New South Wales, conspired with Neil Pettersen, Terry Faumuina and other unknown persons to break and enter the premises of Perfume Network of Australia Pty Ltd situated at 142 James Ruse Drive, Rosehill and to commit a serious indictable offence therein, namely larceny, in circumstances of aggravation, namely in company with Neil Pettersen, Terry Faumuina and other unknown persons. The second count on the indictment alleged that he, on or about 20 March 2011 at Rosehill in the State of New South Wales did steal an Isuzu truck, registration BB58UH, the property of Jamil El Helwa. 2In relation to the conspiracy offence, this is an offence at common law and the maximum penalty is described by the Crown as being at large. I note at this early stage that I sentenced the co-accused, Mr Pettersen, last year, who appealed to the Court of Criminal Appeal and the appropriate maximum penalty or, alternatively, the appropriate considerations to determining an appropriate penalty for that offence in the context of it being a common law offence, were discussed in that judgment. I adopt, obviously, that Court's reasoning, bearing in mind of course that it relates directly to the very matter for which I must sentence this prisoner. Count 2 in the indictment carries a maximum penalty of five years imprisonment. There is no standard non-parole period for either count. 3Mr Pettersen, as I mentioned, had been sentenced by me in respect of count 1 on this indictment. The matter in count 2 was taken into account on a Form 1. It is obvious that the sentence that I imposed on Mr Pettersen is directly relevant to consideration of the appropriate penalty for this prisoner in respect of the conspiracy. The taking of the motor vehicle was an act in furtherance of the major charge, that is the conspiracy charge, and for that reason, notwithstanding potential issues that arise in accordance with what I have described as Pearce principles (Pearce v The Queen [1998] 194 CLR 610 at [45]), I am of the view that any sentence for the motor vehicle offence should be entirely concurrent with the sentence for the conspiracy offence. The totality of the criminality reflected by the two offences is fully accounted for in the sentence for the conspiracy matter, having regard to all the relevant facts, particularly the fact that the taking of the vehicle was, on the Crown case, and clearly so, for the purposes of committing the conspiracy offence. 4The evidence at the trial establishes that Mr Gogani and Mr Pettersen were clearly partners in the formulation and execution of the criminal agreement to commit the substantive offence that was intended. It is not entirely clear in the facts that related to Mr Pettersen that this may have been so, but it became abundantly clear when I had the opportunity, unlike when I sentenced Mr Pettersen, to hear the many telephone intercepts of conversations between the two men, to hear respective offenders, particularly Mr Gogani, discussing other matters reflecting acts in furtherance of the conspiracy. 5During these various conversations Mr Gogani was actively making plans, recruiting people or attempting to recruit people and making other preparations in respect of the criminal agreement which was pleaded in the indictment and clearly so on the evidence, extended from at least 27 January 2011 or thereabouts to 21 March 2011. In this matter the issue of parity of sentencing clearly arises for consideration and in that regard I have paid close attention to decisions of the High Court discussing parity of sentencing such as Postiglione v R and the authorities therein cited, as well as decisions of the Court of Criminal Appeal including the decision from 2010 of Jimmy v R. As Justice Rothman summarised it by reference to Aristotelian principles of equality. The parity of a sentencing principle reflects the general proposition that alike shall be treated alike and unalike shall be treated unalike to the extent of their unalikeness. 6In relation to the facts in this matter, as established from the evidence, Mr Gogani and Mr Pettersen from late in January 2011 agreed to and planned to break into a large commercial premises occupied by, what I understand to be, a perfume wholesaler and retailer that traded under the name of the Perfume Warehouse. This was owned by a company called Perfume Network Of Australia Pty Ltd, the corporate entity identified in the indictment. The premises were located at 142 James Ruse Drive, Rosehill on the western side of that road between the Rosehill Racecourse and the Parramatta River. The business, the Perfume Warehouse, was conducted within a complex of other businesses and warehouses in the vicinity of 142 James Ruse Drive. 7The evidence at the trial revealed that the Perfume Warehouse in March 2011 had several million dollars in stock. As I understand the evidence, the business had a warehouse which stored perfume and related products as well as offices and a retail outlet that faced on to James Ruse Drive. The prisoner and Mr Pettersen, continued their preparations and planning in relation to their plans for this premises up until the early hours of 21 March 2011. Unbeknownst to them, although they endeavoured to disguise their conversations with crude code, they were the subject of telephonic and other electronic and visual surveillance over the period of time particularised in the indictment. 8On 1 February 2011 they were observed, parked on the opposite side of James Ruse Drive from the Perfume Warehouse in a car park of other commercial premises making observation of the building in company with Mr Faumuina. Mr Faumuina is a co-accused who pleaded guilty in a late sentence. Mr Gogani was the subject of other surveillance at various times including a meeting with associates of Faumuina and him, as I would understand it, at a McDonald's restaurant in the western suburbs of Sydney. The telephone conversations of the prisoner to Mr Pettersen surrounding this meeting and its purpose were in evidence before the jury. That meeting occurring in March of 2011, approximately ten or eleven days before the conspiracy came, effectively, to an end. 9The evidence revealed that other people were, in some way, connected to the plans as outlaid by the prisoner Mr Pettersen. For example there was reference to a man called Eric. His role was not clearly defined. It seemed from the telephone conversations the prisoner had, and other references to Eric, that he was a person with some particular expertise, whether that was expertise in safe breaking or some other matter necessary to complete the crime, I am unable to conclude. There were other people of course involved in meetings between the prisoner and others. 10Only Mr Pettersen, Mr Gogani and Mr Faumuina have been arrested and charged in relation to this offence. Ultimately, even though Mr Faumuina is in the middle of giving evidence in his sentence proceedings, precise particulars of what they proposed to steal have not been made clear. Not only was Mr Gogani involved in recruiting people to assist in the commission of the crime and making other plans, he attended upon a Bunnings store in the North Shore on 8 March and bought a number of implements which, on the Crown case, were to be used in the proposed crime including a set of bolt cutters, an axe and a pair of gardening gloves. 11As far as the case was conducted before the jury the evidence revealed that it was intended that the crime, after some delay and at least one postponement, was to occur on the morning of 21 March 2011. Initially it was proposed that an agreed crime be committed sometime in February but the plan was postponed. 12On 20 March 2011 in the evening, Mr Gogani picked up Mr Pettersen from, as I understand it, Cammeray and they travelled to North Parramatta on the other side of the river, as I would understand it, from where the Perfume Warehouse was located. Unbeknownst to them at that stage, at least, they were under heavy surveillance at this point and from that surveillance and the telephone intercepts it was clear that the conspiracy was coming to a head, so to speak. In a suburban area of North Parramatta, they parked nearby to where the motor vehicle, the subject of count 2, was located. They got out of Mr Gogani's car and approached that vehicle and subsequently Mr Pettersen was seen to drive the vehicle away and Mr Gogani drove his motor vehicle, obviously in convoy, with the vehicle driven by Mr Pettersen. 13At the trial some issues were raised as to whether the vehicle, the subject of count 2, the Isuzu truck, was seen by police later that morning in the place where Mr Pettersen had left it. But this fell away on examination of the evidence and no convincing issue arose that might provide a basis for a reasonable doubt as to the prisoner's involvement with Mr Pettersen in its unlawful taking. 14In relation to the surveillance of the two men, the van was parked in a street some short distance to the rear of the Perfume Network. The only conclusion one can reach was that it was taken and parked in that position to be used later as some sort of carriage vehicle for the proceeds of any crime committed within the Perfume Warehouse premises. In the very early hours of 21 March 2011 the prisoner Mr Pettersen drove away from where the van had been left and it would seem that at that point either they were aware that they were under surveillance, or they were travelling away for some period of time before activities relevant to their conspiracy would be resumed. 15Some few kilometres on the other side of the Parramatta River from where the van was abandoned, it is clear that Mr Gogani and Mr Pettersen became suspicious of the surveillance. As it came to pass they pulled into a street off Victoria Road in, what I understand to be, Rydalmere and parked the car that Mr Gogani was driving. Mr Pettersen got out of Mr Gogani's car and walked back to another vehicle which in fact contained a surveillance officer, who tried to secrete himself, if that is the correct expression, obviously unsuccessfully. Shortly afterwards the prisoner sent an unequivocal text message, or at least an unequivocal text message was sent from a mobile phone within the prisoner's control, which indicated to others, particularly Faumuina, that the job was off because they realised that they had been compromised. 16As I said the taking of the van was an act in furtherance of the conspiracy and in my view consistent with totality principles and consistent with the approach taken to Mr Pettersen's sentencing, although the taking of the van was on a Form 1, no additional term of imprisonment should be imposed for that offence that accumulates upon the sentence for the conspiracy. Of course, in accordance with Pearce principles, I need to have regard to particular matters including imposing a separate sentence for each offence and then turning my mind to the issues of concurrency and accumulation by regard to principles of totality. 17As I understand the matters that were raised at the trial in answer to the Crown case, a trial at which the prisoner did not give evidence, whilst it may have been conceded, as was clearly so, that there was an agreement to commit a crime at the Perfume Warehouse, the jury may have had a reasonable doubt as to what precisely that crime was. There was no doubt that the Perfume Warehouse was the target. The coded conversations and telephone intercepts, the attendance upon the premises to check them out, the location of the dumping of the stolen vehicle, all point to that business as being the target of any intended crime. As it turned out, although it was argued in a number of the submissions put on behalf of the accused, that some other crime may have been committed eventually and thus the prisoner should be found not guilty of this crime, the jury were properly satisfied beyond reasonable doubt that the agreement involved an intention to commit the crime pleaded by the Crown. 18Of course it may have been said that there was contemplated another crime, as a matter of argument, but ultimately the only other crime that one could think that was to be committed was a crime of robbery or something similar, which would not have made the criminality any less than what it is at the present time. 19As to the various people in the affair, Pettersen is of course the person I must concentrate on as Faumuina's sentencing is yet to be completed and he has not completed his evidence. In relation to count 2, with respect, the defence for that was hopeless. The vehicle was clearly taken without the owner's consent. There was absolutely no evidence that the prisoner or Mr Pettersen knew the owner and the circumstances of the taking of the car and its abandonment under full surveillance were entirely consistent with a joint enterprise to steal that motor vehicle as defined under s 154A Crimes Act 201900. I note the vehicle was damaged at the time of taking or during the course of the time that Mr Pettersen was in control of it. I note that Mr Gogani did not drive that motor vehicle. 21My assessment of the objective criminality of this prisoner compared to that of Mr Pettersen is that it is exactly the same. This was conceded in submissions by learned counsel for the prisoner when that matter was briefly discussed. The two men spoke to each other as partners, acknowledged each other as equally involved and as having equal roles. Each man did different things from time to time. Some suggestion was made by the Crown in its submissions that I might regard Mr Gogani as directing Mr Pettersen to some extent, or doing more than Mr Pettersen, but ultimately when it is analysed the two men objectively were equals. 22I will deal with the issue of other aspects of the matter that arose from the submissions concerning a comparison between the prisoner and Mr Pettersen at a later time. The prisoner's criminal history is very similar to Mr Pettersen's although on analysis of Mr Pettersen's criminal history I would regard his criminal history as more serious than this prisoner. 23That having been said the prisoner, now aged thirty-two, has developed a very significant criminal history. At the age of twenty he was convicted of assault with intent to rob whilst armed with a dangerous weapon for which he received a term of imprisonment of two and one-half years and a non-parole period of twelve months. Approximately three years later, he was convicted of entering a building or land with a firearm or imitation firearm, for which he was sentenced to sixteen months imprisonment which was suspended and he was also convicted of aggravated breaking and entering and committing a serious indictable offence in company for which he received a two year term of imprisonment which was suspended. 24In 2005 he was called up in relation to each of these offences and the terms of imprisonment that were suspended were imposed with the nonparole period effectively being eighteen months. On release from custody, he was convicted of possessing housebreaking implements and breaking, entering and stealing for which he was sentenced to six months imprisonment. He was convicted of another offence of possessing housebreaking implements committed in 2004 for which he was also sentenced to six months imprisonment. 25On 10 December 2004 presumably whilst on bail in relation to some of the other offences I mentioned, he was charged with an offence of breaking, entering and stealing for which he was dealt with at the Local Court on 10 October 2005. He was sentenced to eight months imprisonment with a six month non-parole period. In May 2007 in the Sydney District Court he was convicted of being armed with intent to commit an indictable offence but, as I understood the history, given a s9 bond. The Crown appealed against that sentence but the appeal was abandoned. Whilst on that bond he was charged with an offence of breaking, entering and stealing and in relation to that offence at the local court he was sentenced to fifteen months imprisonment. 26On 6 March 2009 at the Sydney District Court for offences which according to the criminal history he was charged with on 19 December 2007, whilst he was on the bond earlier given in the District Court, he was convicted of breaking, entering and stealing and sentenced to imprisonment with a nonparole period of one year ten months. Four months earlier he had been convicted of taking and driving a motor vehicle and driving a motor vehicle either recklessly or dangerously for which he received sentences of twelve and nine months imprisonment. The sentence imposed in the District Court was at least partially accumulative upon those sentences. 27The prisoner, as I understand it, was on parole in relation to the sentences imposed in 2009 when he committed the current offences. He does have other offences on his record, convictions in relation to possession and selfadministration of prohibited drugs that he has been using since he was a teenager. 28I have a report from the Probation and Parole Service, plus some reports concerning the prisoner's parole supervision. They were most helpful and particularly the report in relation to the parole supervision cast new light on some of the evidence given by the mother and cast light upon matters the subject of submission by his counsel. In that respect his mother had given evidence, and I will deal with her evidence shortly, that he had received a Naltrexone implant and this had a considerable impact upon him and an improvement upon his attitude and presentation. This was the centrepiece of submissions made to me that one of the distinctions I could draw between the prisoner and Mr Pettersen was that this prisoner, unlike Mr Pettersen, had good prospects, or some prospects, of rehabilitation. 29When I read the report relating to his breach of parole however, prepared on 12 September 2011, I discovered firstly, that whilst the prisoner was involved in this conspiracy, he had in fact been breached in relation to his parole on 22 February 2011, although it would appear no action such as revocation of his parole occurred. He obviously was not returned to custody because the telephone intercepts show him active over the period of February and early March in relation to the conspiracy. The evidence contained within the Probation and Parole Service report for the benefit of the Parole Authority however, shows that he received the Naltrexone implant on 3 March 2011 when he was planning the very crime intended in count 1. 30I note the report does reflect upon his encouraging presentation after the implant and I note the prisoner's comment to the parole officer that it was "life changing experience" and spoke "convincingly of his commitment to ongoing study and personal training and his future". However between 3 March and 21 March 2011 he was actively involved in the commission of the crime reflected in count 1 and on 20 March committed the crime particularised in count 2. It can be seen thus, that the implant, albeit it may have taken some time for it to reduce any craving for prohibited drugs, did not have any impact upon him so far as the commission of the two crimes that are set out in this indictment. 31I note in that regard the mother's evidence about his Naltrexone implant was very vague as to the date upon which it occurred. In fact there was some conflicting evidence in relation to the matter. In fairness to the mother, I did not expect her to necessarily have the precise date of that implant, but the parole report makes it clear when it occurred. In relation to the Probation and Parole report for this court, it shows that his response to various forms of supervision has been considered as borderline to satisfactory. His response to supervision when his parole was revoked was considered "superficial". According to the custody record available to the court, when charged in relation to the current matters, his then current parole was revoked and he remained in custody until granted bail in February 2012 when he served the balance of sentence or otherwise was released to parole. It does not matter which, he was granted bail in relation to the current matter and remained on bail until he was charged with another matter in respect of which I have been provided the facts. He apparently went back into custody on 7 June 2012 in relation to that fresh matter. I will deal with that aspect of the case when I deal with his prospects of rehabilitation. 32In custody, he has incurred a number of institutional misconduct charges including failing to supply a urine test and on three occasions failing a proscribed urine test. He has been disciplined for fighting, intimidation et cetera. His behaviour has been described as poor, abusive and even noncompliant. The prisoner to the Probation and Parole Service described a close and supportive relationship with his family as is evidenced by his mother's evidence and the report sets out some detail of his background. having come to Australia from Iran but being rebellious and anti-social while his parents were preoccupied with their business. At the age of fourteen he complained to the Department of Community Services about the conduct of his parents and their strict discipline. He apparently was removed from the family home and lived in shelters and the like for a period of time which was a contributing factor to his use of illicit substances. Although he left school at fourteen and has endeavoured to obtain, firstly, his Higher School Certificate and then a Diploma in Real Estate. According to the Probation and Parole Service he has been unsuccessful in those endeavours. He has had some employment in various occupations, including labouring and what I would understand to be an apprentice refrigeration mechanic. But in recent years has largely worked in the family business on a part-time basis. He is in receipt of some form of government financial assistance prior to coming into custody, his family would welcome him back to the family home and into the business on his release. 33He gave a history, as I said earlier, of drug and alcohol abuse with a number of voluntary admissions in residential rehabilitation programs usually followed by relapses. He says that he has been a user of heroin, methylamphetamine and other drugs on a daily basis claiming to spend "thousands of dollars" on prohibited drugs. His drug dependency is described by the Probation and Parole Service as "unresolved". He refuses to take responsibility for his offending, he thinks that because they did not go ahead with the primary crime, he should not have been charged. He continued to claim to the Probation and Parole officer, quite preposterously, that he did not know the motor vehicle was stolen. He has shown, with respect to him by the material that has been obtained after the trial, by his conduct during the trial and his conduct before the trial, that he has absolutely no regret, contrition or anything similar, nor reflects any acknowledgement of guilt in any material way. 34In summary, the Probation and Parole Service says that he has a long history of drug dependency with little success of addressing this up until the present time and the reporter says understatedly: "of the concerns his failure to accept responsibility of (sic) his actions and the failure to recognise the seriousness of his actions. Given his ongoing drug dependency issues he may benefit from a long term residential rehabilitation program". 35His counsel on his behalf produced a report from Dr Jeremy O'Dea, a psychiatrist. This sets out some family and developmental history and drug and alcohol history in the first person which is helpful, it sheds a little more light on what is set out in the Probation and Parole Service report but does not really tell the court much of significance in that regard. 36With regard to the offences, he maintained his defiant attitude, he said, "If they'd charged me under the right charge it may have been different." I do not know what this is supposed to mean. But if the right charge was conspiracy to commit armed robbery, as I said, it may have resulted in a greater sentence than I can impose. The prisoner spoke about the positive effect upon him of the Naltrexone implant and also talked about his emotional instability having overdosed on one occasion on prescription drugs and other drugs. He has some difficulty sleeping in custody. He has tested positive to Hepatitis C but is not receiving any medication for that. 37According to the psychiatrist, ultimately, he did not present with any significant psychiatric disorder on presentation, no psychosis was evident, his cognitive function and his general presentation were within normal limits on what was described as a mini mental state examination. He did not demonstrate any specific or significant cognitive defects. The doctor's opinion was that he did not suffer from any major psychiatric illness but he did have a history of substance abuse disorder and also a history of vulnerable antisocial personality profile. He did not report any specific or significant traumatic experiences in his upbringing apart from the obvious problems of assimilating into a foreign culture. His criminal history and his conduct in this matter, if it is any indication, shows that he is well assimilated into the criminal culture of our society. 38The doctor states that he would need to address his drug and alcohol abuse in order to minimise his risk of committing further offences and he should receive drug and alcohol counselling and rehabilitation in custody and on his return to the community. It is in that context that I have considered s 44 Crimes (Sentencing Procedure) Act and determined that there are, notwithstanding his past failures on parole and his past criminal history, reasons for concluding that there are special circumstances that warrant the adjustment of the non-parole period by relationship to the balance of the sentence particularly to give effect to the recommendations of the psychiatrist which will be available to the Parole Authority and which I have summarised. He will need some period of time to adjust to community living, the four year nine month non-parole period I fix commencing from yesterday is the most significant sentence that he will have and he will be then in his mid to latethirties and need professional assistance if he is prepared to take it up, not only to adjust to community living but to adjust to a lifestyle that does not involve mixing with and dealing with people like himself with lengthy criminal histories. 39I note part of the history involves his overdose. This was a reaction his mother said to a loss of a girlfriend to another friend. There is nothing in the psychiatric evidence to warrant consideration of any of the issues that have been summarised in cases such as Hemsley or De La Rosa relating to mental illness or disability impacting upon the weight to be given to general deterrence and the like. 40So far as the prisoner's mother's evidence is concerned, she gave evidence about the implant to which I referred and spoke of the positive effect upon him. I have already commented upon that. However when he went back into custody in September 2011 he appears to have gone backwards and in fact the overdoes to which I referred must have occurred after he was released from custody. The mother pointed out, as was stressed in submissions, that one son has been a success in life but the prisoner seems to have been bedevilled by difficulties that have not affected other members of the family. The mother said that the prisoner had had a rough life over thirty years ago being forced to work in the family business from a young age. She said that the parents had always worked hard and they had not given proper time to direction, this is set out in the Probation and Parole Service report as I have noted. I see nothing in his background, however, that would explain his criminal history or, particularly, his current circumstances. Except insofar as it might have contributed to drug abuse. His mother talked about her physical problems and that she and her husband had difficulty diverting the prisoner from drugs. She said in cross-examination that the prisoner had been to some rehabilitation centres and received some counselling. I have taken that evidence into account. 41Learned counsel for the prisoner in his submissions noted, as I said earlier, that Mr Pettersen and the prisoner were objectively in the same situation. The primary thrust of the submission made, however, on behalf of Mr Gogani was that having regard to the evidence of the mother and the favourable reaction of the prisoner to the Naltrexone implant and the positive attitude of the prisoner after that, also reflected in the Probation and Parole Service report, and his good behaviour it is claimed up until his arrest in September in relation to this matter, the prisoner had good prospects of rehabilitation. which was a relevant mitigating factor and also relevant to the findings of special circumstances. 42This submission was refined also to include a consideration of Wood J's observations in Henry v R, the guideline judgment relating to armed robbery and particularly the learned CJ at CL's observations at [273] of that judgment, concerning the relevance of drug dependency in sentencing an offender for armed robbery. 43His motivation to commit crimes was raised on behalf of the prisoner, as being affected by his addiction to drugs. As I said, one of the problems with that submission was, as the evidence reveals, the prisoner's implant, even allowing some time for it to take effect, occurred in the course of his involvement in this conspiracy. Yet no withdrawal from the conspiracy occurred. The prisoner was obviously an enthusiastic proponent of fulfilling the criminal agreement until such time as he realised that they were under surveillance. Other submissions that were made by learned counsel for the prisoner were that the negative parts of the report by the Probation and Parole Service should not be given much weight, having regard to the accused's mother's evidence. It was submitted that the prisoner while he may do poorly in custody, did better whilst at large than Mr Pettersen. 44It was submitted in relation to these matters that findings favourable to the prisoner would lead to a lower starting point than the sentence imposed on Mr Pettersen. 45The Court was urged to consider the full implications of the Court of Criminal Appeal judgment in relation to Mr Pettersen, which I have. This Court was taken to the issue of the five months and ten days, as I understand it, in custody between September and February 2012, which were said to be referable to this charge. 46Of course, it was not solely referable to this charge because the prisoner's parole was revoked and he had to serve the balance of parole which ran up until shortly before he was granted bail. In this regard I am very mindful of what Simpson J said in the 2006 decision of the Court of Criminal Appeal of Callaghan, and particularly the need to be concerned in fixing a sentence where there is an offence committed while subject to parole, where parole is revoked, the Court is not to 'double dip' in that regard. 47It was a concern I have obviously also in relation to the sentence I imposed on Mr Pettersen. It was submitted to the Court that I should make a finding of special circumstances and I have indicated that I am prepared to do that. 48One other submission put on behalf of the prisoner was that there was evidence of Mr Gogani's background that might explain the way he turned out. It was submitted to the Court that there was nothing in the evidence of Mr Pettersen to explain the way he turned out. I have taken into account as I have said earlier the prisoner's mother's evidence, and I am mindful of some disadvantages the prisoner had as a teenager. But apart from the fact that it may have drawn the prisoner to lead a lifestyle that led to the use of prohibited drugs, there is very little evidence of the mother or in the background to explain the reasons that the prisoner should have such significant criminal proclivities. 49The Crown submitted that there were no mitigating factors of substance, that the prisoner had shown a continual pattern of using drugs and offending and really had no real prospects of rehabilitation notwithstanding the Naltrexone implant. 50The Crown also provided very helpful written submissions citing the judgment in Pettersen [2013] NSWCCA 20, particularly at [10] and [942]. 51The Crown made observations about the issue of the assessment of the prisoner's role in the conspiracy. I have taken all of those submissions into account, but again we come back to the fact that, having properly categorised Mr Pettersen's role on the occasion I sentenced him, according to the Court of Criminal Appeal, the categorisation of the prisoner's role on the basis of the evidence of the trial is not a particularly difficult matter, as was conceded by learned counsel for the prisoner. 52The Crown correctly pointed out that the totality of the telephone calls played at the trial showed that the prisoner had a managerial and decision making function similar to Mr Pettersen and they saw themselves as partners in the enterprise. 53The Crown referred to parity principles and the concept of 'equal justice' citing the decision of Green from the High Court at (2011) 244 CLR 462 and [28]. The Crown pointed out that Mr Pettersen had received a discount of twenty-five per cent for the utilitarian benefit of his pleas of guilty which this prisoner could not get. The Crown noted the prisoner's extensive history, as with Mr Pettersen's, and the aggravating circumstance of committing offences while subject to conditional liberty. 54The Crown submitted that there was a need for specific deterrence and general deterrence for the protection of the community. The prisoner had committed an offence with an intention for financial gain, which was planned. The commission of an offence for financial reward was not necessarily an inherent characteristic of an offence such as this, as I understood that submission. I do not agree with that. It is a very essential element in the factual sense, one would have thought most times, in an offence such as pleaded in count 1. 55Be that as it may, for the purposes of s 21A(2) the aggravating factors that arise for this prisoner are the same as for Mr Pettersen. When sentencing Mr Pettersen the aggravating factors included committing the offence whilst on conditional liberty, as is the case here, both men being on parole. 56As with Mr Pettersen, insofar as mitigating factors are concerned, I have taken into account that there was no loss or damage because it was in fact a conspiracy that was uncompleted. 57Mr Pettersen received consideration of a plea of guilty as a mitigating factor although I acknowledged he received a discrete discount. I have made a conclusion in relation to Mr Pettersen that he was contrite, which this prisoner is not. I did not conclude that Mr Pettersen had reasonable prospects of rehabilitation, or that he was unlikely to re-offend. 58In relation to the criminal history of the prisoner, as with Mr Pettersen, whilst I do not find it to be an aggravating factor as contemplated under s 21A(2), his criminal history does not entitle him to any particular leniency. It is also relevant to the assessment of his prospects of rehabilitation taken in context. 59As far as the mitigating factors are concerned for this prisoner, under s 21A(3), apart from the absence of any loss or damage given the circumstances of the plans of the prisoner and Mr Pettersen being thwarted, I note the prisoner is a person who does not have an insignificant criminal history as with Mr Pettersen. As to the prospects of rehabilitation and his likelihood of re-offending, which is intimately bound up with that matter, I have taken everything that could be said and has been said by his counsel in that respect into account. But, ultimately, when I consider all the evidence, the power of the particular submissions that were made is substantially diminished having regard to what I have pointed out about the implant, having regard to his past performance. The 'proof in the pudding' to which I referred. 60There is, however, one other matter that needs to be taken into account that did not occupy counsel for the prisoner, when he was making his submissions. 61In relation to the prospects of rehabilitation of the prisoner I take into account that when the prisoner was given bail in February of 2012, in relation to this matter, on 8 May 2012 he committed an offence which was dealt with in the District Court earlier this year after the trial over which I presided. 62I have the statement of facts in relation to that matter and although the sentence imposed by the learned sentencing judge is not within the criminal history, according to the custody record the prisoner was sentenced to a term of imprisonment by way of a non-parole period of one year two months to date from 7 June 2012, expiring on 6 August 2013. That is three days ago. 63The crime to which he pleaded guilty was an offence that involved the prisoner and three other men going to the home of a person, entering the home of that person without his permission and seeking from that person details of the whereabouts of another man who owed the prisoner money, with threatening behaviour as it is particularised in the statement of facts. 64It is clear in relation to that offence, from the facts available to the sentencing judge, that the prisoner played a leading role in the commission of the offence. When the victim's mother who was in the house called out, 'I am calling the police', the prisoner in the facts is alleged to have said, 'Don't call the cops, you will be sorry.' 65When he was arrested in relation to this matter in June 2012 he again was bail refused and remained in custody until he came to trial before me. He pleaded guilty to the offence of enter dwelling with intent to commit a serious indictable offence, namely intimidation. 66The facts state that he intended to intimidate a person by his and the physical presence of other people, to recover moneys allegedly owed by a person to Mr Gogani. 67The facts of that matter reveal, notwithstanding the fact that he was on bail in relation to these matters, no indication on the part of the prisoner, whilst at large on bail, any attitude of reform, or to do anything other than to behave the way that he clearly has behaved over the last ten years. That is, committing crimes of various seriousness for his own ends. There was nothing altruistic or noble about his offending and he has absolutely no regret about it. 68I have taken into account his history of offending and his history of Probation and Parole supervision, the evidence of the psychiatrist, the prisoner's behaviour since his arrest in relation to this matter and I could not, on the totality of the evidence, notwithstanding the urgings of his counsel, conclude on balance that the prisoner has good or reasonable prospects of rehabilitation or that he is, not likely to re-offend in the future. 69If the prisoner continues to behave the way he has continued up until the present time he will continue to be a danger to the community, not necessarily in the sense of a physical danger but a danger to the community's entitlement to have the protection of their property. The prisoner is a person who commits crimes for his own selfish purposes. 70I appreciate that part of the solution for the prisoner, if he wishes to undertake it, is to try and overcome his history of drug dependence. He also has to address his very strong anti-social criminal proclivities, which he obviously has no hesitation in engaging in, whether he is drug dependent or not. 71In sentencing the prisoner I have had regard to s 3A . This offence in context requires elements of general and personal deterrence and protection of the community from the offender. Part of the reasoning in the finding of special circumstances is in part to promote his rehabilitation. 72Ultimately, all things considered arising out of s 3A and s 21A Crimes (Sentencing Procedure) Act the situation is this; that the starting point for Mr Pettersen was eight years imprisonment. Objectively, both offenders are equally liable. 73Mr Pettersen received a discount of twenty-five per cent for the utilitarian benefit of the plea of guilty which this prisoner cannot get. Mr Pettersen was contrite. This prisoner was not contrite. The same aggravating factors arise in relation to matters relevant under s 21A(2). Ultimately, the same mitigating factors, other than contrition and the plea of guilty, arise in relation to this prisoner. 74If I was to distinguish between the two men, I would concede that whilst this prisoner's record does him no credit, Mr Pettersen's criminal history is a more serious criminal history, with more significant terms of imprisonment in the past, for more serious offences than this prisoner has committed in the past. But the distinction is minor. 75Ultimately, I have decided in relation to this matter that, with a starting point of eight years imprisonment, I should impose a term of imprisonment of seven years six months. The six months' discount upon the starting point for Mr Pettersen represents recognition, firstly, of three months of the time spent in custody after his arrest for which he served the balance of parole in the context of the principles discussed in Callaghan v The Queen I have also given the prisoner a three-month benefit in distinguishing him from Mr Pettersen having regard to their records. 76That having been said, the finding of contrition in Mr Pettersen's favour was a matter that could have properly negated that aspect of the matter. 77There is no correct mathematical outcome in sentencing by and large. Makarian v The Queen made it very clear that a judge is required to take into account a large number of things, but ultimately I have concluded there should be some minor adjustment downwards for this prisoner to recognise what I have acknowledged in the judgment. 78Stand up please Mr Gogani. In relation to count 2 you are convicted and sentenced to eighteen months imprisonment. That term of imprisonment dates from 7 August 2013, that is the date after the expiry of the current non-parole period, and will expire on 6 February 2015. 79In relation to the offence in count 1 you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of four years nine months and that will date from 7 August 2013 and expire on 6 May 2018. That is the earliest that you will be eligible for parole. 80The balance of sentence as I calculate will be two years and nine months and that will expire on 6 February 2021. Whether you are released to parole or not will be a matter for the Parole Authority. Take a seat thank you. You may go with the officers.