District Court New South Wales Medium Neutral Citation: R v WILLIAMS; R v ROBERTS [2014] NSWDC 374 Hearing dates: 07/08/2014 and 10/10/2014 Decision date: 28 November 2014 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Roberts - Indictment: Count 1 - Sentenced to a term of imprisonment of 5 years and 3 months with a non parole period being 2 years. Count 2 - Sentenced to a term of imprisonment of 5 years and 3 months with a non parole period being 2 years. Other charges: Sentenced to a term of imprisonment of 4 years with a non parole period being 2 years and 9 months. Sentenced to a term of imprisonment of 3 years and 6. Williams – Indictment: Count 1 - Sentenced to a term of imprisonment of 6 years with a non parole period being 2 years and 5 months Count 2 - Sentenced to a term of imprisonment of 6 years with a non parole period being 2 years and 5 months Other Charges: - Sentenced to a term of imprisonment of 4 years and 6 months with a non parole period being 3 years and 3 months 2nd Indictment - Count 1 - Sentenced to a term of imprisonment of 3 years with a non parole period being 1 year Count 2 - Sentenced to a term of imprisonment of 2 years with a non parole period being 1 year S166 Certificate – related charges - - Sentenced to a term of imprisonment of 6 months. Pursuant s.10A Crimes (Sentencing Procedure) Act, 1999 no penalty is recorded. Catchwords: Criminal – Sentence, armed robbery with a dangerous weapon, Aboriginal offenders, parity, "social exclusion" and racism, standard non-parole period. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Cases Cited: Lowe v R [1984] HCA 46 R v Blackman & Walters [2001] NSWCCA 121 Bugmy v R [2013] HCA 37 R v Callaghan (2006) 160 A Crim R 145 DPP (Cth) v De La Rosa [2010] NSWCCA 194 R v Engert (1995) 84 A Crim R 67 Jackson v R [2010] NSWCCA 162 Jimmy v R (2010) 77 NSWLR 540 Moffitt v R (1990) 20 NSWLR 114 Muldrock v R (2011) 244 CLR 120 Munda v Western Australia ([2013] HCA 38 Pearce v R (1998) 194 CLR 610 Postiglione v R [1997] HCA 26 R v Fernando ((1992) 76 A Crim R 58 R v Henry (1999) 46 NSWLR 346 R v Millwood [2012] SS v R [2009] NSWCCA 114 Veen (No 2) v The Queen (1988) 164 CLR 465 R v Lewis [2014] NSWSC 1127 Category: Sentence Parties: Crown Matthew Thomas Williams - Offender Shaun Michael Roberts - Offender Representation: Counsel: Mr King – Williams Solicitors: Director of Public Prosecutions – Crown Aboriginal Legal Service - Offenders File Number(s): Williams – 2013/313422; 277453; 313291 Roberts – 2013/264487; 335084; 341559 sentence INTRODUCTION 1. HIS HONOUR: Two men appear before me for sentence today. They are Shaun Roberts who was born on 8 April 1991 and Matthew Thomas Williams who was born on 13 January 1981. 2. Mr Roberts and Mr Williams have a number of offences which are common to each other, but they are also for sentence in relation to offences which were committed by them either with other people or by themselves, but certainly not with each other. 3. The Crown very helpfully prepared chronologies in relation to both offenders which provides some assistance in mapping out the particular matters with which I am concerned and I will just work through the framework of those matters now. 4. Shaun Roberts is for sentence in respect first in time of an armed robbery contrary to s 97(1) Crimes Act 1900 committed at Mount Pritchard. That offence carries a maximum penalty of 20 years imprisonment. He and Mr Williams both appear today for sentence in relation to an armed robbery with a dangerous weapon committed on 30 August 2013 at St Helens Park. This is an offence committed on, as I said, 30 August 2013, it carries a maximum penalty of 25 years' imprisonment, according to the Crown's coversheet it has no standard non-parole period, it is a common offence to Mr Roberts and Mr Williams. 5. There is a Form 1 matter common to both offenders of assault occasioning actual bodily harm in company contrary to s 59(2) Crimes Act 1900, upon a victim who was a customer at the business where the armed robbery was committed. 6. The offenders have two offences committed in the late hours of 30 August 2013 or the early hours of 31 August 2013 that are both on Forms 1 relevant to each other, relating to the taking and or being carried in a conveyance knowing it was stolen or unlawfully obtained at Campbelltown, and the larceny of New South Wales vehicle registration plates at Murrumbateman, a small town in the Barton Highway between Yass and Canberra. 7. The two offenders then have commonly with each other two offences of armed robbery with a dangerous weapon, again contrary to s 97(2) Crimes Act 1900 committed at Tumut. These matters came to the Court for sentence in circumstances where the initial charge had a plethora of particulars which required several other concurrent armed robberies with a dangerous weapon to be placed on a Form 1, for each offender in respect of contemporaneous offending. 8. The offender Mr Roberts was arrested in relation for the Tumut offences on 31 August 2013. His parole was then revoked in circumstances I will outline shortly. 9. Mr Williams was not arrested at that time. In fact, he remained at large until 17 October 2013. That led to the situation where he committed two other offences which were offences contrary to s 112(2) Crimes Act 1900 which each carry a maximum penalty of 20 years imprisonment but each have a standard non-parole period of five years imprisonment. One offence was an aggravated breaking entering and commit a serious indictable offence to wit stealing in company which is count 1 or sequence 1 of those charges. The second matter is an attempted break and enter and commit serious indictable offence in company, the serious indictable offence being stealing, committed on premises close to the premises which were actually broken into. 10. Mr Williams also has two matters, as I understand it, on a s 166 certificate. One matter of taking and driving a conveyance without the consent of the owner and the other matter of being unlicensed. 11. The facts of all the matters with which I am concerned I will deal with in a moment but, as I said, it can be seen that the offender Mr Roberts committed an armed robbery before he committed crimes in conjunction or in company with Mr Williams. Then, after Mr Roberts was arrested, Mr Williams committed other crimes which naturally Mr Roberts could not participate in, amongst other reasons because he was in custody. 12. The offenders were before me in Wagga in respect of the offences committed at Tumut which I will deal with in a moment. In respect of those offences at Tumut, the way the matter was ultimately dealt with was by the filing of an ex officio indictment with a single armed robbery in respect of each of the premises where robberies occurred, which were adjoining premises. In respect of each offender other armed robberies which were committed at the same time were placed on a Form 1 reflecting the reality of the number of people that were robbed by the offenders. 13. As to the issue of appropriate discounts for the utilitarian benefit of the pleas of guilty, I will deal with that matter later. 14. Not only are the number of charges, the way in which charges are to be dealt with by the Court taking into account matters on a Form 1 and approaching offences in relation to Mr Williams on a s 166 certificate complicated, but the presentence custody situation of both offenders is complicated as well. 15. When Mr Williams was arrested on 17 October 2014 he was charged with other offences which have subsequently been dealt with in the Local Court. He was also, as I would understand it, charged with the outstanding offences that I am concerned with directly, either on that date or subsequent dates. He remained in custody unsentenced until either 30 March or 1 April, it is a little unclear given the conflicting information I have been provided. 16. He was, as I would understand the criminal history, sentenced on 1 April to 14 months imprisonment in the Local Court in respect of various offences. The total sentence thus expiring, having been ordered to commence on 30 March 2014, on 19 May 2015 with an effective non-parole period of nine months expiring, as I understand the matter, in December 2015. 17. The calculation of the learned Crown Prosecutor, at the time that I was provided with relevant sentence summaries, was that the prisoner had spent five months 14 days or 165 days in custody, solely referable to one or all of the matters with which I am now directly concerned. I was informed Mr Williams was not on parole or subject to conditional liberty at the time of the offending. 18. Mr Roberts committed the offences with which I am concerned whilst on parole in respect of an offence or armed robbery which sentence commenced on 16 October 2010 and was ordered for a period of three years nine months imprisonment with a non-parole period that permitted the prisoner's effective release to parole on 15 April 2013. When arrested in relation to the Tumut matters Mr Roberts' parole was revoked. I need not go into the details of that, but the revocation was effective from the date he came back into custody on 31 August 2013 and he served the balance of parole to be served which expired on 15 July 2014. The learned Crown Prosecutor calculated as at the last date the matter was before me, which was 10 October 2014, that the period of time spent in custody other than serving balance of parole was two months and 26 days. It is now a further, as I would calculate it, one month and 18 days since the matter was last before me. 19. With both Mr Roberts and Mr Williams I have taken into account all times spent in custody directly referrable to these matters in their various ways, but I am also required in a range of ways to have regard to terms spent in custody in relation to other matters, whether it be by reason of serving sentences of imprisonment or serving out the balance of parole that had been revoked, in order to calculate a commencement date for the relevant sentences to be imposed. 20. I have already outlined to the prisoners what the sentences are, they each have different commencement dates. But in summary the way I have approached the matter is, in the case of Mr Roberts, order a commencement date on 1 March for the effective sentence, although some sentences are partially accumulative upon others, to represent a sentence commencing during the period of time that he served his balance of parole to give effect to totality of sentencing. 21. In relation to Mr Williams I have to take a different approach and give respect to the non-parole period fixed by the learned Magistrate. Thus, I have calculated a commencement date of that non-parole period notionally from the date he came back into custody, and that non-parole period "notionally" expiring on 17 July, although the Magistrate of course ordered it to expire later this year. The times required to be served for that non‑parole period can be directly referrable to that sentence and I can commence the sentences I impose to give effect to any remaining time in custody not counting the non-parole period fixed by the Magistrate. 22. I will deal with each of the offences, but I will start with just working my way through the joint offending of the two prisoners and then come back to the different offences, or the other offences, that are not jointly committed by the two of them. FACTS OF THE OFFENDING 1. The first offending jointly committed by the two of them, as I said earlier, was the armed robbery and the assault occasioning actual bodily harm in company committed on 30 August 2013. This is the armed robbery that is an offence contrary to s 97(2) Crimes Act. 2. The prisoners robbed a man called Fadi Azzi of property particularised in the Court Attendance Notice. Mr Azzi was working at a service station in St Helens Park for his brother-in-law. About 7.20am a male customer called McFarlan entered the shop to purchase some items, after which the two prisoners entered with a co-offender who has never been identified. Mr Roberts was wearing a stocking over his head and had an antique firearm in his possession and threatened to shoot Mr McFarlan and pointing the gun at Mr Azzi. Mr Williams held a 15 centimetre long knife and also threatened Mr McFarlan and threatened Mr Azzi. 3. Mr McFarlan was struck on the right side of his face and the three offenders variously threatened the occupants of the business premises with Mr Roberts going behind the counter, cornering Mr Azzi in that area, hitting him on the top of the head with the gun and then punching him in the face. He ultimately removed Mr Azzi's mobile phone and his wallet which had $210 in cash as well as some other property within it. 4. While this was occurring, Mr Williams grabbed the cash drawer from the cash register emptying it into a backpack. Another man entered the premises. Mr Roberts threatened him with a firearm and that person left but rang triple‑0. 5. The three men, after stealing various property from the store, left the business, but outside the store confronted another man who was alighting from his vehicle. Mr Roberts said, "I want your car," to which the occupant of the car replied, "Get fucked. You're not having it," and closed the door. The three offenders then ran and jumped into a Nissan hatchback parked nearby and drove it away. It was ultimately set alight. They then ran off. 6. Police arrived and various investigations were undertaken, including inspection of CCTV footage, the recovery of some stockings that were worn on the head of at least two of the offenders, and other items. In abandoned premises nearby Mr Azzi's wallet was located and ultimately the DNA profile of Mr Williams was detected on items that were examined by police. The victim, Mr Azzi, suffered swelling and a bump to his head and bleeding from the mouth and Mr McFarlan suffered from redness and a graze to his right cheek. 7. The property taken included the cash in Mr Azzi's wallet, $790 from the cash tray, a number of items of merchandise, including cigarettes and chocolates totalling $1,026 in value. 8. Sometime later the same day or perhaps early in the morning, it does not really matter, the offenders were involved in the taking of a motor vehicle being a Nissan Pulsar SSS which they, in company with two other men, ultimately drove to Tumut. The stolen number plates that I referred to was stolen from a car at Murrumbateman on the way to Tumut, presumably to disguise the true identity of the Nissan Pulsar. 9. The prisoners were in company with two men called Faletau and Kinchela. They went to two properties at 18 and 20 Dalhunty Street, Tumut. It seems clear, as I discussed with Mr King who appears for Mr Williams, that at least Mr Williams would have known the occupants and it would appear that he believed that there were people within either one of the premises who could provide him or his colleagues with drugs. 10. At premises at 18 Dalhunty Street, Tumut there were three people, Troy Newlind, Amanda Robb and Ebony McKnight. The prisoner Roberts, Mr Williams and Mr Faletau went into those premises and after some small talk the victims were threatened with the replica firearm which on this occasion was held by Mr Faletau. I point out there is evidence before me that the replica firearm was incapable of discharging a projectile, but of course the victims did not know that. Notwithstanding the fact that it could not discharge a projectile, it was relevantly a dangerous weapon. 11. Mr Williams threatened one of the women with a vacuum cleaner stem and Mr Roberts removed a flat bar with a handle on it out of his sleeve and hit Mr Newlind striking him on the right leg. After striking Mr Newlind a number of times, cash and mobile phones were demanded and the three men obtained four mobile phones, $330 in cash and a Sony 14.1 megapixel camera. Mr Newlind suffered soreness to the neck, jaw, spine, hip and right leg but suffered no permanent or serious injury. 12. The three offenders then moved to the next house, 20 Dalhunty Street, outside of which, before they went into 18 Dalhunty Street, Mr Williams had spoken to one of the occupants. This house was occupied by a number of people, including a woman called Pamela Blomley, Sam Lubke and Timothy Gorman. The prisoner Williams and perhaps others in the group were known to the occupants. There were also some other people in the house at the time, Michael Blomley, Mitchell Harris and Joshua Barton. There turned out to be a small child in the premises of which the prisoners were unaware until too late. 13. Mr Roberts, Mr Williams and Mr Faletau forced their way into the house. They were obviously still armed with the weapons they had used in the house next door. Mr Williams punched Barton to the face with both fists. Ms Blomley yelled out "I've got a kid here" and Mr Williams said, "I don't give a shit." Mr Roberts struck Harris with an iron bar to the right knee and demands were made for property with the bar being held, being placed, against the neck of Mr Gorman. Mr Faletau again used the firearm to threaten the occupants and various items of property were taken, although a woman in the premises escaped with her five year old child. 14. Mr Gorman believed that Blomley, when threatened, was going to be shot so he grabbed the bar held by Roberts and pushed it away. Mr Roberts said to Faletau, "Shoot him. Shoot him, bro." Gorman thence armed himself with a garden hoe and confronted Mr Roberts and there was something of a struggle. In the meantime, Mr Williams and Mr Faletau ran out to the motor vehicle, as later did Mr Roberts, and they drove away. None of this brings any credit upon Mr Williams or Mr Roberts, whatever state of intoxication from drugs they were in at the time. 15. Gorman suffered some contusions to the throat and the shoulders. Mr Barton suffered a laceration to the inside of his mouth. Mr Harris suffered soreness to his right knee. As a result of this robbery six mobile phones, one camera and only $20 in cash were stolen. I say "only $20 in cash were stolen" somewhat sarcastically, because one wonders why all the violence for such a small amount of money and small amount of property. 16. Later that day, Mr Faletau and Mr Roberts were arrested in Tumut. Williams and Mr Kinchela ran away and, of course as I said, Mr Williams was not arrested until mid‑October. The replica firearm and the iron bar were found and all mobile phones and the cameras and some of the money was recovered. 17. Mr Roberts told the police without saying much else that he had only "robbed a druggie" as if to excuse his behaviour. One wonders what he would have felt if he had been treated the same way by a group of men. In any event, Mr Kinchella was arrested on 4 September 2013, and as I said earlier, Mr Williams apparently was arrested after a police pursuit. 18. Just dealing with Mr Williams for the moment. The other offences with which I am concerned in his case were the aggravated breaking and enter, or attempted breaking and enter, committed by him on 22 September 2013 when he was effectively on the run, so to speak, in relation to at least the Tumut offences. The prisoner broke into a property in company with another person at Leumeah, the property belonging to a man by the name of Bradley Napper. The breaking occurred at about 2.30pm in the afternoon and the prisoner and his unnamed co-offender stole a range of property, including PlayStations, cameras, jewellery, backpacks, bottles of perfume, a suitcase, an iPhone and other personal items, including a laptop that contained photographs of the victim's honeymoon which were never recovered. The property stolen totalled $3,225 in value. 19. In the same unit complex two men apparently attempted to break into another property by trying kick open the door. This unit identified specifically in the facts was the subject of some closed-circuit television coverage and the offenders were shown on that system endeavouring to force their way into the premises. 20. On 21 September, or early 22 September, a Holden Commodore was stolen outside a residence in Ruse. This prisoner Mr Williams was identified on CCTV footage on particular days driving the motor vehicle. He was an unlicensed driver. That motor vehicle was recovered on 24 September and ultimately the prisoner's latent fingerprints were found linking him to commission of the breaking, entering and stealing offence. 21. Mr Roberts has an additional charge of armed robbery, as I said earlier, pursuant to s 97(1) Crimes Act committed on 27 August before he embarked upon the joint criminal enterprises with Mr Williams. As with all the other offences, for sentence today, this was an offence committed whilst on parole for armed robbery. In relation to this offence it was committed at Mount Pritchard at a local newsagency and involved ultimately the theft of $1,700 in cash and numerous packets of cigarettes. Whilst the prisoner was armed with a screwdriver he attended upon the premises of the newsagency around 5.20am, shortly after it opened, and was in company with Kinchela who was I understand it is the co-accused in the later offending at Tumut. There was another person involved too who has not been identified. 22. The prisoner entered the premises with a hood pulled over his head to avoid identification. One man was armed with a tyre brace. He was the person who approached the victim. The prisoner and Mr Kinchela threatened a female victim, the male having left after initially being threatened, as I understand the facts. Mr Kinchela and the prisoner threatened a female who was standing near the counter and told her to open the till. The facts suggest that the male partner of the female had in fact been taken outside the premises. The female victim pressed the security alarm and then went around the corner. She screamed. The prisoner and his co-offender tried to open the cash register without success. One of the offenders ripped the cash register from the counter and placed it on the floor in front of the counter where it was later collected by Kinchela and the prisoner. Mr Kinchella also took a large number of cigarettes from the shelves. Some of these items were dropped as the men left the premises. The total value of cigarettes taken was just in excess of $1,400 and as I said earlier, $1,700 in cash was removed from the premises. 23. On 2 September police attended a residence that was associated with Kinchela and found the cash tray in the roof of the premises. Mr Roberts' fingerprints were identified from latent impressions found on the remains of the register that were located. Another search of other premises on 6 September reveal items of clothing related to this robbery, including clothing that was detected to have the DNA profile of Mr Roberts and of course one item of clothing had some prescription for medication in the name of the offender in it. CRIMINAL HISTORIES OF THE PRISONERS 1. So far as their criminal histories are concerned, Mr Roberts first appeared in the Children's Court in 2007 and has a range of appearances in the Children's Court subsequently for property offences, particularly, breaking, entering and stealing offences, four offences of violence, including a finding of guilt in relation to an offence of reckless wounding for which he was sentenced to a 12 month control order with a non-parole period of two months, and other offending. He was given various orders over the years he appeared in the Children's Court, including probation, orders to perform community service and control orders. 2. As an adult in 2010 he appeared at the Local Court. He was convicted of common assault and affray, and ultimately imprisoned in total to seven months imprisonment with a non-parole period of one month and three days. 3. In August 2011 he appeared at the Campbelltown District Court and was convicted of the armed robbery to which I referred earlier. The term of imprisonment as I said was three years nine months with a non-parole period of two years and six months commencing on 16 October 2010, hence his release to parole, as I said earlier, in April 2013. 4. Since coming into custody after his arrest in relation to the current matters he has a number of matters of failing to perform or failing objectively prescribed urinalysis and other infractions. 5. Mr Williams' record extends over a longer period of course than Mr Roberts because he is over 10 years older. He, likewise, has a number of appearances in the Children's Court for offences of dishonesty, assault, affray, robbery, assault police and various street offences. 6. As an adult he has findings of guilt. Shortly after turning 18 at Gundagai Local Court and at Tumut Local Court for various offences, including intimidating a police officer, damaging property, breaking, entering and stealing, taking and driving a vehicle without consent, stealing a motor vehicle, driving in a manner dangerous to the public, assault occasioning actual bodily harm, these convictions are recorded over a period of time between 2000 and 2006 and he received various forms of penalty, including a term of imprisonment for 18 months in relation to the taking of a motor vehicle in 2000, and another sentence of 12 months with a non-parole period of nine months for an offence of assault occasioning actual bodily harm, which sentence was imposed in 2006. 7. He also had a finding of guilt against him for a crime of wounding for which he was sentence to two years imprisonment which was suspended on him entering a s 12 bond. This was an order made in the District Court and could well have been made by me, however, I have no recollection of the offender. 8. At the same time he was convicted of entering a building and committing an indictable offence for which he received a term of imprisonment of 18 months suspended pursuant to s 12 Crimes (Sentencing Procedure) Act. These offences were committed on 23 August 2002. 9. Between 2006 and 2010 there was effectively a break in his offending, although there was some minor offending in 2009 in one sense. He was convicted of assault occasioning actual bodily harm which of course can be a very serious offence, but was given a community service order. 10. He then started to reappear at Court more frequently in 2011 and 2012. In 2011 he was placed on a s 9, then, after committing the offences with which I am directly concerned, he appeared in the Local Court this year in relation to a number of offences, including driving under the influence of alcohol and other drug, possessing implements to enter and drive a conveyance, taking and driving a conveyance without the consent of the owner, and driving recklessly in the course of a police pursuit for which he received various terms of imprisonment that total effectively 14 months with an effective non-parole period of nine months due to expire on 29 December 2014. I have already referred to that matter. PRE-SENTENCE REPORTS 1. Each of the prisoners has had tendered in respect of them a presentence report. The presentence reports contain a deal of information about the background of each of the offenders and other matters. I will deal with their respective backgrounds when I come to matters raised in their own cases, but in relation to Mr Roberts it said that his previous release to parole supervision in 2010, parole supervision as part of a Children's Court order, reflected unsatisfactory performance. He was referred to the Getting SMART program to address substance abuse issues but had to be withdrawn from that program because he attended affected by cannabis and refused to participate. He is said to have failed to engage in any recommended interventions. He was released to parole again, as I pointed out, on 15 April 2013 for the armed robbery matter. A breach report was submitted on 25 June 2013 due to his poor reporting and a positive urinalysis. A warning letter was sent by the Parole Authority on 5 July. A further breach report was submitted on 20 August due to the prisoner continuing to abuse illicit substances and his failure to comply with directions to undertake an assessment for residential rehabilitation program. Revocation of his parole was recommended but, as can be seen from what I said earlier, his criminal activities overtook all these events because he embarked upon that course of conduct between 27 August and 31 August that I have earlier outlined. 2. He gave some details of his background consistent with the evidence contained within his statement to the Court and his father's evidence and he confirmed to the Community Corrections Officer that drug abuse, antisocial peers and other influences have affected his conduct. 3. He is a father of two children, a son aged three and a daughter aged four months, although his relationship with the mother was "on and off" and there is little evidence of his parenting skills in the activities with which I am concerned. He has had limited experience in employment, or only one period of extended employment being nine months as a factory hand. 4. I will address the matters relating to his education shortly but he was when arrested on a Newstart Allowance. 5. He reported a heavy use of illicit substances, including methylamphetamines and heroin, claiming that he would spend "up to $10,000 per week" on these drugs. Where he would find money to maintain an addiction of $10,000 a week worth of prohibited drugs is not disclosed by him in any material he has provided to me. His mental health, however, has been unstable as understood by the Community Corrections and he said in relation to his offending in respect of the current matters that he was "messed up at the time" and that his actions were "quite stupid". 6. He is at a medium to high risk of reoffending with a raft of matters that need to be addressed, including education, his leisure time, his companions, his alcohol and drug problems, his emotional personal problems and most importantly his attitude and orientation. 7. With regard to his prison performance it is not entirely positive, as I have earlier foreshadowed and whilst he acknowledges he needs to undertake treatment to address his drug and alcohol problems, particularly drug problems, he is in a position of "protection" at the moment, or at the time of the making of the report, which he is not prepared to leave to undertake those programs. The assessment of the Community Corrections is that: "Despite his apparent insight into the correlation between his drug abuse and offending the prisoner has previously demonstrated a poor commitment to addressing this issue when last released to parole supervision and presented as tentative when discussing possible treatment within a custodial environment." 1. Although he has the continued support of his family, it is obvious that his health issues, particularly his mental health issues, and his drug dependency will require very close monitoring on his release eventually and there is a need for him to address various aspects of his conduct, including anger management, drug and alcohol dependency and also to ensure that he gets proper psychological and mental treatment. 2. Mr Williams' report in relation to supervision is somewhat more favourable. The report from the Community Corrections Service notes that his previous periods of supervision have been generally satisfactory. In fact in 2003 when on suspended sentences his positive response led to premature, or early, termination of his supervision. 3. Another period of supervision in 2006 led to entry into Oolong House which program he successfully completed, as he successfully completed a community service order. 4. Whilst in custody his conduct has been satisfactory. There have been a few infractions. He has been employed within the Parklea Correctional Centre and is regarded as a good worker. 5. He has an upbringing in a small Aboriginal community between Tumut and Gundagai. His parents separated when he was quite young due to problems caused by alcohol abuse and domestic violence, this account is supported by his mother. His father died in December 2012, although his father apparently had little contact with him. He had what he described as a good childhood and is well regarded by his mother and supported by her. His is the father of five children from two relationships and he has children aged between 13 and 1. Four of his children, as I understand it, live in the Campbelltown area and his relationship with his partner has suffered because of his illicit substance abuse. 6. He has had little formal education, but in 2003 he completed a Certificate in Conservation and Land Management and was employed by the Local Aboriginal Lands Council and in 2006. He obtained employment as a traffic controller, but was made redundant in 2011/12. This was the period during which there was substantial dropping away of his offending and it would seem that the employment opportunity provided considerable stability to his life. 7. On losing that employment, through no fault of his own, he went back to drug abuse, particularly the use of methylamphetamine with a long history of abuse of alcohol and prohibited drugs before that. It was the use of amphetamines that ultimately led to his involvement in the escapade with his co-accused. 8. He acknowledged that the main purpose of the offending was to obtain money for illicit substances and he said that he was endeavouring in Tumut at least to obtain money and valuables from them for that purpose but it was, he described an "afterthought" to his initial approach for the purposes of obtaining drugs. 9. The prisoner's categorisation of the offending at Tumut was that it was a "drug deal gone wrong". The facts reveal to me nothing of the sort, with respect. But having said that he acknowledges that the victims were entitled to be safe in their own home. He acknowledged their actions would have caused them considerable distress and he offered an apology which was categorised as "insincere" because he believed the victims were involved in criminal activities, particularly as illicit substances could be obtained from the premises. 10. The prisoner is a medium to high risk of reoffending. He particularly needs assistance in relation to addressing his drug problems and his predisposition to violence. He appeared before the Community Corrections Officer as despondent and hopeless ruminating upon lost opportunities and upon the effect upon his family. He had insight as to how his actions may have affected the victims, but as I said countered that "empathy" by minimising his conduct towards the people at Tumut by reason of what he believed to be their own criminal activities. The views of the prisoner in relation to the victim on 30 August at St Helens are not known. MR ROBERTS' CASE 1. With regard to Mr Roberts there is a body of evidence that touches upon his mental health issues which are complicated. There is a report by Dr Olav Nielssen dated 1 August 2014 which was tendered on the last occasion. There does not seem to be a great deal of information in the report to reflect his understanding or assessment of some of the records that were provided to me, particularly what appears to be a patient summary from an Aboriginal Medical Service in the Campbelltown area. 2. I have read through that document. It commences in 2004 and comes through to just before the prisoner's return to custody in 2013, contains many extensive notes of medication provided to the prisoner and various medical ailments, including assessment of conditions reflected in Dr Nielssen's report in a very general way. The report from the medical centre in the Campbelltown area notes that on 19 June 2013 whilst he was on parole he reported to the doctor or the medical attendant that he was back on "opioids" again and he confessed that he had continued his addiction to "Bup (sic) and heroin" in gaol and he used drugs, amongst other reasons, because it was "fun", but also because life was "overwhelming at times". 3. He had been introduced to a methadone program but had abandoned that, it would appear, according to the notes available to this Court. I have the progress notes that appear to have been prepared in relation to the prisoner's care in Corrective Services as well. Those notes reflect that he has been recommended early this year for entry to the methadone program in custody. He gives histories in those notes relating to his use of prohibited drugs in the past and presentations in the past of psychosis. 4. Dr Nielssen's report covers much material that I have already outlined. I do not propose to repeat matters that have already been the subject of comment from the evidence but he reflects upon treatment for mental health conditions whilst in Juvenile Justice care where he was diagnosed with "schizophrenia" and treated with a range of "antipsychotic medications". 5. He has been receiving antidepressant and antipsychotic medication in custody from time to time. He said that he had on occasions had hallucinations and also heard voices, and said that he understood and recognised those as not "real", but had difficulty controlling them. 6. Dr Nielssen spoke to the prisoner's father and confirmed the history that the father gave evidence about to me. He noted the prisoner's "symptoms of mental illness" and understood that something was not right with his son. He noted that on an occasion that the prisoner came back from custody he "came home with 20 different pills" and he believed that when he came out of gaol the first time he thought that something was really wrong because he came out "ten times worse off". He said that during his recent period of liberty, that is the last time he was on parole, the prisoner was agitated and could not relax. 7. After a mental state examination he noted the prisoner's capacity for brief and direct answers and other matters, reflecting that the prisoner's intelligence would be estimated to be in the normal range. The doctor expressed the opinion that the prisoner had a chronic psychotic illness, to wit schizophrenia, which was currently in remission. He said there was little in the way of residual signs of schizophrenia during the recent interview and that his symptoms of delusional beliefs and the like were well controlled on a standard dose of medication. This was consistent with a less severe and treatment responsive form of psychotic illness. He also had a diagnosis of the prisoner of substance abuse disorder having regard to his history of abuse of drugs. He also noted the role of drug use in triggering psychotic illness. He thought that the prisoner had largely recovered from an acute or the acute phase of mental illness and would remain well provided he had adequate attention to his medication. 8. I mentioned earlier the prisoner provided a statement to the Court setting out details of his background. He was subjected to, confirmed by his father, racial abuse as a child in the Campbelltown area. This led to a number of changes of school. He also suffered abuse based upon his race in local sport and he was accomplished at particular sports, particularly rugby league but as his father said in his evidence, basically had to abandon his sporting ambitions because of his treatment. He gave details in his statement of the medications he had taken over the years. He claimed that he had been told some time ago that he had Hepatitis C but in fact that was a false alarm. He does not believe he has that. He gave details of his drug use and his current protective custody. He has been stood over by another inmate and was in protective custody at Junee which has restricted his access to programs which I have taken into account. 9. He said so far as the offences are concerned that: "The stress of my life at the time led to the crime spree. I was living with my mum. I had to support my family and kids. I had no job or income and I was using drugs." 1. He said that he was "fried on drugs" and he acknowledged the fear that may have or did cause the victims and would hope to improve in the future. 2. The father's evidence, as I said, supported the account of the prisoner in his statement and he reflected upon the prisoner's treatment at school, the changes of school and the disillusionment with study, being placed in a special school but one that did not encourage any type of academic achievement. It was in these circumstances that he came into contact with what the father described as "antisocial peers" and was ultimately recruited by older people to participate in a ring of children who were stealing from shopping centres. He noted upon his career as a promising footballer and how racism had turned him away from sport. He said that he and his wife did their very best but they could not overcome the problems that were created for their son by his treatment at school and outside of school. 3. I accept the evidence of the father and I accept the account given by the prisoner. This evidence in its own way demonstrates the corruptive and pervasive characteristic of racism and highlights the deleterious effect it has on individuals, discouraging educational attainment, encouraging dissociation from family and the community and leading to a life which is described in the submissions as a life of "social exclusions", or isolation from the mainstream or even one's own community. MR WILLIAMS' CASE 1. With regard to Mr Williams, apart from the presentence report, I have a psychologist's report and it provides a great deal more detail about his background. He attended the Brungle Public School which is a very small school attached to the Aboriginal community at Brungle. I am very familiar with Brungle, I have been there a number of times. In fact I have lived on 'Erambie' at Cowra (an Aboriginal "mission") and I knew many people in Cowra who had family in Brungle. It is a very impoverished disadvantaged community. 2. He reflected upon his employment history to the psychologist and I have already mentioned those matters. He gave some history in his account to the psychologist of mental illness within his family, including his father and people within his community who had committed suicide and self‑harmed. He recalled a history of anxiety and panic attacks beginning in 2000 and he sometimes heard a woman's voice telling him to open his eyes and lower his voice. He has never been diagnosed by a medical practitioner with a major mental illness, although he probably has exhibited a number of symptoms consistent with a psychotic reaction to drugs that he has been taking. He has a history of abuse of crystal methamphetamine from about five years ago which has culminated in the current offending. 3. His history of offending has involved association with peers who themselves were regular offenders and he relates his offending in the past and in the present as largely connected to his associations and his use of drugs. He said of his use of methylamphetamine, and I quote from the report "When on ice, you're not a member of society anymore, lost all morals, everything I stood for went out the window." He would like to undertake a rehabilitation program. 4. The psychologist undertook a number of psychometric tests. He has a moderate level of depression, anxiety and stress. So far as his dependence on illegal substance his score is beyond the threshold required for psychological dependence/compulsive use of illicit substances. 5. With regard to intelligence his score was reasonably good. His score on the Wechsler Abbreviated Scale of Intelligence, Second Edition, was between 86 and 97 on verbal and non‑verbal scales. This places him within the average range. 6. So far as the assessment of the prisoner is concerned the psychologist noted a positive outlook for the future, realistic about his need to gain formal assistance. He reported endeavours to avoid use of substances whilst in custody and it was noted that the prisoner would have symptoms of anxiety and depression and stress naturally exacerbated by his circumstances in custody. 7. It was recommended that he participate in a rehabilitation program on his release from custody and this will be a matter for the Parole Authority. Odyssey House was recommended by the author and also he would benefit from Community Offender Services naturally enough and would require some psychotherapy. SUBMISSIONS OF MR WILLIAMS 1. In relation to the submissions, I will deal firstly with the submissions that were put by Mr King. Mr King in his usual skilful way gave a fair and balanced assessment of the material available. He accepted that although the prisoner played a different role than his co-accused in the Tumut robberies, ultimately their roles were equal, particularly given their involvement in a joint criminal enterprise in which they jointly took advantage of the actions of the other. 2. He made submissions about the dangerous weapon which I have already referred to and made submissions of the level of seriousness of the offending given that the fact that the weapon was not capable by discharge of inflicting serious harm. 3. It was acknowledged in relation to matters of aggravation, there was the threatened use of weapons, the fact that the prisoner and his co-accused were in‑company, the use of force, although causing limited injury, limited planning and that it was not a feature of any of the common offences between his client and the co-accused that planning was an aggravating factor. 4. The Crown had later submitted and had provided to Mr King written submissions that the planning was more extensive than Mr King was submitting, on the basis that the planning extended back to the taking of the motor vehicle and the stealing of the number plates. This is a submission that I do not accept but I will deal with that shortly. 5. Mr King pointed to the fact the prisoner knew the people involved and had a reasonable expectation of the fact that there may be drugs available at the premises he attended, although he noted of course that a number of people were robbed within their own home which is an aggravating factor. 6. It was acknowledged by him that the victim was vulnerable in the armed robbery of the service station. There was the use of violence, but again, there was not planning such as to make that an aggravation. He said that in relation to the break enter matters on 22 September 2013, including by that description the attempted breaking and entering, the circumstance of aggravation was that the people were "in‑company". This is a circumstance of aggravation on the facts of this case at the lower end of the range of aggravations that may be pleaded. I agree with that submission. There was no one home, there was no violence. I understand that there are circumstances of aggravation that would be more serious than the ones with which I am concerned. 7. Emphasis was placed upon his prospects of rehabilitation, and particularly I was taken to para 36 and 37 of the psychologist's report which reflect upon his future plans, particularly rehabilitation programs outside of gaol and cooperation with the Community Corrections service which I have already noted. It was also noted that his extended period of time of employment between 2006 and 2011 had led to considerable stability and a marked reduction in his offending. 8. It was noted that he had come from a background of considerable disadvantage and had many events occur in his early life that deprived him of opportunities that people ordinarily would expect to be available to them. 9. He submitted that one might divine what he described as some "blue‑sky" any future prospects. 10. It was submitted and I rightly take it into account the issue of totality of sentencing as discussed by the High Court for example in Pearce v R (1998) 194 CLR 610, particularly in the majority judgment at [45] and the Court of Criminal Appeal judgment of [2000] of Hammoud. I need to take into account the sentencing at the Local Court which I have done in the manner I have foreshadowed. It was submitted that I should find special circumstances. SUBMISSIONS OF MR ROBERTS 1. Dealing with the submissions on behalf of Mr Roberts, there were extensive submissions that were tendered and many of the oral submissions focussed on those written submissions. 2. The primary submission made on behalf of Mr Roberts, that he was profoundly affected by racism from his early years and that the evidence revealed taunting and abuse and violent pursuit that led to acts of self‑harm and the prisoner "spiralling out of control" falling into a pattern of drug use, criminality and psychosis. 3. The issue of racism and its affect upon him was reflected in a number of studies, the copies of which were provided to me and about which there was specific submissions made. One such study from 2011, published in the Medical Journal of Australia, entitled "Racism as a Determinative Social and Emotional Wellbeing for Aboriginal Australian Youth", concluded that there was a nexus between the experience of racism and the development of anxiety, depression, suicide risk and overall poor mental health for victims of it. 4. These findings were consistent with studies internationally and what were "cross‑sectional studies" in Australia. Late adolescence and early childhood were identified as a time of heightened vulnerability to psychological stress resulting from experiences of racism. 5. It was argued in submissions that the racism suffered by the prisoner can be taken to be a form of "social exclusion" which has been the subject of a number of studies in the United States, including a study from 2007 in 'The Journal of Personality and Social Psychology', the learned authors identified in the written submissions, and another study "The Inner Dimension of Social Exclusion: Intelligent Thought and Self‑Regulation Among Rejected Persons", from 'The Journal of Personality and Social Psychology'. These various articles and others, with learned authors such as Professors Twenge and Baumeister, were the subject of comment by his Honour Rothman J in the sentencing of Mr Lewis for murder earlier this year ([2014] NSWSC 1127). 6. These studies to which his Honour referred observe that "self-regulation and a cognition instead of emotion were the most important in a process of change as a response to social exclusion". 7. Baumeister and others said in one of the articles: "It rejected or excluded people. Exhibit poor self‑regulation in many spheres. They also show impairments in intelligent thought, though these are limited to forms of thought that are linked to self‑regulation (i.e., thinking processes that depend on effortful control by the self's executive functioning)." 1. The learned authors and others point out that patterns of behaviour across a number of groups within the United States show, "high aggression, self-defeating behaviours, reduced prosocial contributions to society as a whole, and ... impaired self-regulation", arising from social exclusion caused by racism. 2. In referring to these studies Rothman J concluded that: "In the way that Fernando principles had been taken into account in sentencing Aboriginal people in particular circumstances the matters identified by Baumeister and his colleagues may be used to mitigate or fashion an appropriate sentence, but not so as to impose a sentence that does not reflect the seriousness of the offence." (Lewis at [41] - [43]) 1. It was submitted that the behaviour of the prisoner mirrored the outcomes of studies identified in the judgment of Rothman J, including high aggression, self‑defeating behaviours, reduced prosocial contributions, inappropriate acceptance seeking and impaired self‑regulation. These were reflected by the commission of offences, drug use, criminality, self-harm, suicide ideation, limited positive work in the community, falling in with older criminals and the like. It was submitted that racism that the prisoner suffered as a child amounted to independent subject matter that could be considered in mitigation of the sentence imposed being a foundation for "descent into drug addiction and criminality." 2. Reference was also made to the decision of Bugmy v R [2013] HCA 37, noting the observations of the High Court at [43] - [44], that the experience of growing up in an environment of alcohol abuse and violence may leave its mark on a person for life as will the effects of profound childhood deprivation. 3. Observations may also be cited from the case of Munda v Western Australia ([2013] HCA 38) concerning the disinhibiting and emotionally neutralising effect of an environment of deprivation. 4. Reliance was also made upon the observations of Simpson J in R v Millwood [2012], particularly at [69], that a dysfunctional childhood and a lack of opportunity has a bearing upon the assessment of the moral responsibility of an offender. A tragic and dysfunctional upbringing was a relevant consideration in mitigation, although limited, similar to the approach taken by Wood J, as he then was, in R v Fernando ((1992) 76 A Crim R 58). 5. These matters I accept. I will come back to Bugmy and Munda shortly, but in the context of what has been submitted in the context of Mr Roberts it could well be said of course, in fact in one sense more so, that these observations have applicability to Mr Williams, coming from the unstable community in which he grew up as opposed to the more stable domestic circumstances of Mr Roberts. 6. With regard to Mr Roberts it was submitted the history of early drug use following upon alcohol use graduating through methylamphetamine by the age of 17 or 18 set the scene for an understanding of the circumstances of the commission of crimes to obtain money to obtain drugs (SS v R [2009] NSWCCA 114). The occurrence of drug addiction at a very young age has been recognised as an exception to the general rule laid down in the matters discussed by Wood J in R v Henry (1999) 46 NSWLR 346, particularly (at [273]) when his Honour discussed, if I might call them, the qualifications to the general proposition that drug use or addiction does not mitigate sentence in the sentencing for armed robbery matters. 7. Of course I am mindful of what s 21A(5AA) Crimes (Sentencing Procedure) Act 1999 states about prohibiting use of "self‑induced induced intoxication" at the time of the offence as mitigation. That provision, as was pointed out in submissions, does not specifically concern itself with the context in which particular offending may occur. 8. Reference was also made to the observations of McClellan J in DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [177]. In that case his Honour specifically summarised the principles that relate to the sentencing of an offender suffering from a mental illness, intellectual handicap or other mental problems. 9. The many cases that his Honour cited were summarised by him in the following manner: "Where a state of a person's mental health contributes to the commission of the offence in a material way the offender's moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced for the reduction of sentence." 1. His Honour said that it may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which might otherwise have been imposed. It may mean that a custodial sentence may weigh more heavily on the person because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced. It may reduce or eliminate the significance of personal deterrence. It may conversely mean, as Gleeson CJ points out in Engert, that greater emphasis may be required to be given on protection of the community because of the danger that that person represents. Here it is submitted that the prisoner is an inappropriate vehicle for general deterrence and that custody in its various forms will be onerous for him given his history of self‑harm. Also, his moral culpability is less and the need for specific deterrence is moderated by what is said to be success in treatment and maintaining his illness. I accept these submissions to varying degrees. 2. It is submitted further that he is entitled to the benefit of recognition of his contrition and remorse following upon his pleas of guilty. It is common ground to both offenders of course that their pleas of guilty are matters that will lead to substantial discounts to recognise the utilitarian benefit of their pleas. 3. Mr King had submitted that his client was entitled to a discount of 25%, as I understood the submission of counsel for Mr Roberts. In my view and in accordance with the guideline judgment each of the offenders should receive such a discount. 4. Submissions were made about the issue of the time already spend in custody and I was taken to the decision of Simpson J in (Callaghan (2006) 160 A Crim R 145) and the need for consideration of totality of criminality. 5. It was also submitted that I should make a finding of special circumstances including having regard to the relative youth of the prisoner, his circumstances of custody, the avoidance of institutionalisation and the need for particular supervision and guidance in a range of areas. In relation to the issue of institutionalisation I was taken to the decision of Jackson v R [2010] NSWCCA 162, particularly at [25]. It was ultimately submitted I should not impose a crushing sentence. 6. As I said, most of those matters that I have summarised from the written submissions were repeated in the oral submissions and there is very little to add to what has already been quoted but I have taken all submissions into account from the parties. CROWN'S SUBMISSIONS 1. The Crown provided some helpful summaries which went through what he had pointed to be aggravating and mitigating factors arising under s 21A Crimes (Sentencing Procedure) Act. In relation to Mr Williams the Crown emphasised that he was involved in what it described as a "travelling road show" of criminal activity and it was in this context that the planning issue that it raised was to be considered. It noted the use of firearms that were in the possession of the offenders for a lengthy period of time, the possession of a metal bar, the stealing of number plates in Murrumbateman to which I referred and the use of what was effectively a stolen motor vehicle for the commission of the crime. It was said that this reflected upon the degree of planning, particularly in relation to the armed robberies at Tumut. 2. It was submitted by the Crown that an inference of preplanning could be had from these matters. But, as I pointed out to the Crown, if it was to be found as a matter of aggravation it would be a matter that I would need to be satisfied beyond reasonable doubt about. I have a reasonable doubt that the taking of the number plates or the taking of the car were part of a plan to commit armed robberies, let alone the armed robberies at Tumut, to which I am particularly concerned. 3. In relation to Mr Roberts, the Crown's specific oral submissions that it was not a matter of considering the issue of sentencing of Aboriginal people, it was a matter of considering the issue of disadvantage in general. Ultimately, though, the Crown conceded that racism may be regarded as a relevant matter in the way in which the defence submitted its effect was to be considered. But it reduced, it was submitted, because drug use was the primary course of the offending. 4. It must be fairly said that the interrelationship between the conditions for "social exclusion" and dependence on drugs is clearly demonstrated, it seems to me, anecdotally let alone without regard to the learned writings of Judges superior to me or learned authors in Australia or the United States. The correlation between drug abuse and disadvantage is overwhelmingly established by the parade of human suffering and misery that comes through the doors of these Courts in most of the cases we hear. 5. The Crown pointed to the Justice Health records and the presentation of the prisoner in custody after his release and submitted that the medical records were relevant to assessing his prospects of rehabilitation. It noted from these records that he seemed to have limited insight in relation to his situation and this was a matter that would cause the Court to have a pause in considering that he had real prospects of rehabilitation. SUBMISSIONS IN REPLY 1. In reply it was conceded that whilst there is evidence to which the Crown referred that could be taken into account in relation to Mr Roberts in relation to his prospects of rehabilitation, there was still the issue of his youth and his mental illness that were pertinent to assessing these matters and also the issue of special circumstances. CONSIDERATION 1. With the helpful summaries that were provided by the learned Crown, I wish to deal with some of the matters that arise under s 21A. Certainly I accept, as I must, in relation to the robbery at St Helens Park that, common to both offenders, was the actual and threatened use of weapons, the fact that the offenders were in company and that Mr Azzi was a vulnerable person. 2. The Crown would submit that there were multiple acts. Theoretically that may be so, arising under s 21A(2)(m), but I cannot conclude that it is an aggravating factor. The planning aspect of that offence was neutral. 3. With regard to both offenders in relation to the Tumut offences, the actual and threatened use of weapons in company in the home of the victims clearly are aggravating factors, there can be no dispute about that, but I have earlier indicated that I could not conclude that planning is an aggravating factor in those matters. 4. With regard to Mr Roberts' involvement in the earlier armed robbery on 27 August, the fact is that the offence was committed in company and that the victim was vulnerable, allowing for the fact that there was another employee was present, as it was the early hours of the morning and the people in the shop were confronted by armed persons, albeit armed with screwdrivers, not dangerous weapons or knives capable of inflicting serious injury. With regard to Mr Roberts, of course, a common aggravating factor is the breach of conditional liberty on parole for armed robbery. 5. If one wanted a model for the complexities and subtleties of sentencing one could not go past the challenge that this sentencing exercise has presented, not only in respect of each offender has there been a need to pay close attention to the concept of totality of sentencing given the number of offences over the varying periods of time committed by each of the offenders but there are also many other issues, some of which I have already addressed above. 6. These include taking into account matters on a Form 1 as arise in relation to the armed robbery on 30 August common to both men. I do so in accordance with the guideline judgment from 2002 of the Court of Criminal Appeal. There the learned Chief Justice discussed the issue of matters being taken into account on a Form 1 and pointed out that where matters are to be taken into account on a Form 1 depending upon which matters they are, there is a need to give close attention to the communities entitlement to extract retribution where greater weight would be given to personal deterrence the entire point of the process it was said was usually to impose a longer sentence, or to alter the nature of the sentence that would be imposed if the principal offence had stood alone. 7. Of course, as the Court pointed out, the process of sentencing is concerned with the principal sentence and discreet recognition of the effect of the Form 1 matters is not required. There are matters which limit the effect of matters on a Form 1 in the sentencing exercise, the express provisions of the Act, the maximum penalty for the primary offence and of course the principle of totality. 8. Rarely is it appropriate for a sentencing judge to attempt to quantify the effect of the sentence for a principal offence taking into account Form 1 matters. In general terms I refer to the various observations of the Chief Justice between [18] and [43] of that judgment. 9. Of course in each sentencing exercise there is a need to have regard to the various purposes of sentencing set out in s 3A of the "Sentencing Procedure" Act acknowledging them, as the High Court famously said in Veen (No 2) in 1988, that the four purposes of sentencing that the majority of that decision identified (which are now included, amongst the more numerous purposes of sentencing in s 3A of the Act) were "guideposts" that sometimes pointed in opposite directions. 10. So far as Mr Williams' breaking, entering matters the primary aggravation is of course pleaded in the charge and, of course, an aggravating factor that is an element of the offence is not to be taken into account additionally under s 21A of the Act. 11. With regard to the offending of the offenders I have ultimately concluded that mitigating factors that arise are that none of the offences were part of a planned or organised criminal activity, the pleas of guilty of each of the accused as acknowledged by the Crown. 12. I am prepared to accept some expressions of remorse by Mr Williams, albeit that the weight to be given to that is somewhat leavened by the observations of a Community Corrections officer, the pleas of guilty of course reflect some remorse on the part of that prisoner as well. With regard to Mr Roberts his expressions of remorse are more clear, although only marginally so. 13. Of course I cannot find as mitigating factors that either of the offenders had no significant record, were persons of good character or are unlikely to reoffend. I do not believe I can conclude that they necessarily have "good prospects of rehabilitation" as a mitigating factor, but having said that, in both offenders, there is some "blue sky" to use the words of Mr King. 14. As to s 44 Crimes (Sentencing Procedure) Act, in each offenders' case I have made a finding of special circumstances, of necessity it arises from the various partial accumulations of sentence but in my view there is in each case a need for an extensive period of supervision to assist them to adjust to community living and to receive appropriate direction and supervision in relation to a raft of matters that are worthy of professional assistance. 15. Of course s 5 of the Act falls away because there is no other penalty other than imprisonment that can be imposed. 16. The two prisoners, as I have pointed out, have a number of common offences. These matters and other aspects of the sentences exercise require consideration of parity principles or the principle of "equal justice". 17. My task has been somewhat more complicated because at the 'heel of the hunt', about which I do not complain now but was somewhat less than happy about it at 9.30 this morning, I have received material in relation to a co‑offender who was apparently sentenced on 13 November, I would have much appreciated this material to be made available to me before the last few days when I had spare moments preparing these remarks on sentence. 18. The matter I am referring to is that in respect of the offence on 27 August for which Mr Roberts is to be sentenced a co-offender Mr Kinchela has been sentenced by his Honour Judge Conlon at the Wollongong District Court. In relation to that matter I have the facts, I have Mr Kinchela's criminal history, I have material from the State Parole Authority setting out details of his failings on parole and other matters which apparently were taken into account by his Honour Judge Conlon. I do not have his Honour's remarks on sentence. What I have is the sentence imposed which is a total sentence of four years imprisonment with a non-parole period of two years. I have no idea what particular case was run on behalf of Mr Kinchela. I have taken into account his Honour's sentence as best I can, given the paucity of information. 19. One matter I should point to in relation to what I do know about Mr Kinchela in the context of sentencing Mr Roberts for the same offence is that Mr Kinchela is two years older, he has what can fairly be said to be a lengthier criminal history. He too was on parole in relation to an offence of robbery in company for which he was sentenced to a term of imprisonment of over four years. He was in breach of his parole in relation to that matter at the time of the offending, as was Mr Roberts. I note in relation to Mr Kinchela's criminal history that he has a number of terms of imprisonment imposed upon him, much greater than the number of terms of imprisonment that have been imposed upon Mr Roberts to this point. 20. Speaking of that matter and the sentencing of Mr Williams it is to be noted that where offenders are to be sentenced in relation to common offences the penalties imposed upon each should be such as not to give rise to a "justifiable sense of grievance" as was discussed by the High Court in the 1984 decision Lowe v R. The complexities of that term came to bear in subsequent decisions where for example an otherwise appropriate sentence may be not excessive but may be found subsequently, sometimes years after the event, to be excessive because of a subsequent sentence imposed upon a co-offender who was more leniently dealt with. The concept of the 'parity of sentencing' has to some extend morphed into the concept of "equal justice" which as I may have mentioned earlier in various places has been described as a "fundamental aspect of the exercise of judicial power". 21. Rothman J, to whom I referred earlier as the Judge in the decision of Lewis adopting what could be called "Baumeister" reasoning about which he has written an article ("The impact of Bugmy and Munda on sentencing of Aboriginal and other offenders": Vol 26 No 23, Judicial Officers' Bulletin April 2014) addressed the matter of equal justice in the context of parity of sentencing in the decision of Jimmy v R (2010) 77 NSWLR 540, particularly at [254] - [266]. 22. His Honour followed upon the observations of Dawson and Gaudron JJ concerning "equal justice" in parity of sentencing in the High Court judgment of Postiglione v R and Aristotelian principles of equality. In the context of equal justice arise also consideration of sentencing principles concerned with the treatment of Aboriginal offenders too, particularly in the context of the sentencing of offenders who are products of their own unique social or personal circumstances, such as Mr Williams coming from a community outside of Tumut riven with complex social and economic issues of disadvantage, discrimination and dysfunction, and Mr Roberts growing up in a more stable environment in Western Sydney, but subject to racism and bullying leading to what has been described as social isolation and the consequent impact upon his social and emotional wellbeing, an impairment of the self‑regulationing and his capacity for prosocial behaviour. 23. Not only is the spirit of what I may call Fernando principles alive in each sentencing exercise here, allowing of course for some important factual distinctions between the circumstances of Mr Fernando in Brewarrina and the crimes and the social conditions of the crimes of these offenders committing offences to obtain resources and money to buy drugs, but more pertinently are the general principles discussed by the High Court in the two decisions earlier referred to of Bugmy and Munda. Reference in those decisions was made to Fernando, the decision of Eames JA (Victoria) in Fuller-Cust, Neal and other cases. All these cases point to consideration of the social circumstances of Aboriginal offenders and their varying ways as being relevant to the assessment of moral culpability of the particular offender (see Bugmy at [40] - [52]) and I have taken that into account here. 24. In the context of the narrow issue of parity there are a raft of competing considerations. Although each of the offenders in relation to their common offences performed different roles they actively participated in specific joint criminal enterprise to which they have pleaded guilty. So far as the objective facts are concerned making allowance for their different roles, the different level of threats, the different weapons and their different actions the objective seriousness of each of their offences is very much the same. 25. I am very mindful of the fact that Mr Williams was more likely to have had knowledge of the victims of the Tumut robberies as a source of purchase of drugs but that could only be of some of the victims in any event. He may have led the way in introductions and other vocalised participation but also Mr Roberts was an active and enthusiastic follower or participant and in those offences there is ultimately very little to distinguish them. 26. I am not assisted in sentencing the two prisoners in understanding how the dividend of their criminal activities was divided. But one could reasonably assume that it was divided equally between themselves and the other participants. 27. Subjectively, of course, there are many significant differences between the two offenders, the differences in age of course are an important matter. Some of the differences, however, cancel each other out to the extent where the offending is common. 28. Mr Williams does not have any prior findings of guilt in relation to armed robbery, although, he does have a finding of guilt in relation to robbery many years before. 29. Both of them, as I have earlier said, have criminal histories that disentitle them to any particular leniency, but not criminal histories that constitute aggravating factors pursuant to s 21A(2) of the Act. The criminal histories, of course, have got to be seen in the context of their personal and social backgrounds. 30. On the other hand, in a short period of time, Mr Roberts developed a formidable record, and a significant distinction between he and Mr Williams is the fact that Mr Roberts committed his offending whilst subject to parole, and Mr Williams was not subject to conditional liberty. 31. I bear in mind also Mr Roberts has committed the armed robbery of 27 August before committing the robberies which were common to him and Mr Williams. On the other hand, Mr Williams has a criminal history that is concerned with a longer period of time. Mr Williams also went on to commit the other crimes while Mr Roberts was in custody. 32. Mr Roberts has certain mental health problems which are more significant than the circumstances of Mr Williams. Mr Roberts has produced objective evidence of his medication and treatment for his health problems over a long period of time, adding support for the contentions of his counsel as to the corrosive effects of what is described as social isolation. 33. On the other hand, Mr Williams has had the opportunity of employment in his mid‑20s and has provided for him a settled lifestyle and has demonstrated his capacity to lead a law-abiding life. I have already pointed out that that was disrupted through no fault of his. 34. Mr Roberts has had almost no employment opportunity and has really spiralled out of control since leaving school. Even his settled parents and his partner have not been able to help him in that regard. I note, of course, Mr Roberts has an extra armed robbery matter for sentence. 35. Mr Williams has other offending, itself serious, carrying a maximum penalty of 20 years with a standard non-parole period of five years. I also note Mr Williams was subsequently involved in a police pursuit which led to a substantial sentence. 36. In relation to the armed robbery matters I have had regard to the decision of Henry which I have earlier cited and particularly the guideline pointed out by his Honour by reference to categories of case which are "sufficiently common for the purposes of determining a guideline" set out at [162]. I am also mindful of matters of what could be called aggravation or other matters, the intensity of which will vary reflecting upon the appropriateness of the guideline summarised by his Honour at [170]. 37. With regard to the offences Mr Williams faces, in respect of which there is a standard non-parole period, I am mindful of the terms of s 54A(2) of the Act which provides that in fixing a non-parole period for an offence that has the standard non-parole period, as I am obliged to do, the Court is in that sentencing exercise to note that the standard non-parole period identified represents the standard non-parole period taking into account only the objective factors. In determining where the offence fits in the range of seriousness, s 54B(2) provides that the standard non-parole period for an offence is a matter to be taken into account by a Court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for the offender. In this regard of course I note the decision of Muldrock v R (2011) 244 CLR 120, where the majority of the High Court held, leading to the statutory regime we now have, that consistent with "Markarian principles" the standard non-parole period was but one of many matters to be taken into account in determining the appropriate non-parole period. Here the relevant offence is below the meddle range of objective seriousness. 38. With regard to both offenders, of course, there are different considerations in relation to the commencement dates of their sentences. In sentencing the offenders, not only is the seriousness of the offending, the interests of the victims and the varying aggravating factors as identified by the parties to be taken into account. But I am required also to have regard to the interests of the individual offenders in the way in which those matters have been discussed in cases such as Blackman and Walters, from 2001, where Wood J adopted what had been said by King J in Yardley & Betts v R in 1978 relating to the protection of the community being enhanced by the reformation of offenders. 39. I also am aware of the obiter observations of Wood J in Moffitt v R (1990) 20 NSWLR 114 to which counsel for the accused Roberts referred, and particularly what his Honour said in pp 120 – 121, where his Honour identified matters relevant to the consideration of a finding of special circumstances, there considering of course s 9 of the Sentencing Act 1989, the predecessor to the current s 44, particularly risks of institutionalisation, the youth of offenders and the like. 40. I have also taken into account the observations of Simpson J in R v Callaghan for the need to avoid double‑dipping in fixing an appropriate sentence where a breach of conditional liberty has been taken into account, and also as I have earlier pointed out, making an assessment of the moral culpability of the offenders have regard to all relevant circumstances. 41. Although both offenders, for either obvious, or different reasons, require different commencement dates for their sentence, and whilst I have decided ultimately that the total sentence to be imposed upon Mr Roberts will be slightly less than that imposed upon Mr Williams, the differences between their respective sentences is relatively marginal. The most compelling matters that warrant an adjustment in favour of Mr Roberts are his comparative youth and the significance of the matters identified in submission arising from the summary of relevant principles in De La Rosa, given the more convincing evidence of the presence of mental health issues in the background of the prisoner Mr Roberts. CONCLUSION 1. I am sorry to take so long, gentlemen, it must have been excruciating for you but there are many things to be addressed. If you don't address them, people complain and thus they have to be given their appropriate attention. 2. Mr Roberts, would you mind standing up first, please, if you do not mind? 3. In relation to the offence of armed robbery committed at Mount Pritchard, you are convicted. You are sentenced to a term of imprisonment of three years and six months to date from 1 March 2014 and to expire, on my calculation, on 31 August 2017. In relation to that offence I decline to fix a non-parole period for obvious reasons because that sentence will be absorbed into other sentences. 4. In relation to the offence committed on 30 August 2013 you are convicted. Taking into account the matter on the Form 1 you are sentenced to a term of imprisonment by way of non-parole period of two years and nine months from 1 March 2015 expiring, on my calculation, on 30 November 2017 the balance of sentence expiring on 28/02/2019. The balance of the sentence being one year and three months is to expire on 28/02/2019. The total sentence of imprisonment is four years. I find special circumstances. You will be eligible for release to parole on 30/11/2017. 5. In relation to the offences committed at Tumut, it is the robbery whilst armed with a dangerous weapon, taking into account the matters on the Form 1, given the close relationship of all those offences to one another, noting all that has been said by the Court of Criminal Appeal in relation to taking matters into account on a Form 1 but also the very intimate relationship of the matters on the Form 1 to the principal offending, I propose to impose concurrent sentences for each of those matters. You are sentenced in respect of each count to a term of imprisonment by way of non parole period of two years to date from 1 March 2016 to expire on 28 February 2018. In relation to each of those sentences I fix a balance of sentence of three years and three months. That is a total sentence, on my calculation, of five years and three months. The starting point of that sentence was seven years with a discount of 25%. 6. You can take a seat, thank you very much. 7. Mr Williams, do you mind standing thanks very much. 8. In relation to the offences of aggravated breaking and entering, and attempted aggravated breaking and entering, or however it is specifically described in the Court Attendance Notice, you are convicted in each matter. 9. In respect of the breaking and entering offence you are sentenced to three years imprisonment to date from 17 July 2014. That acknowledges the nine month non-parole period fixed by the Magistrate. That sentence will expire on 16 July 2017. In relation to that offence, because I am required under law to fix a non-parole period I fix a non-parole period of one year to date from 17 July 2014, to expire on 16 July 2015. 10. In relation to count 2, the attempted offence as it is called, I give you a lesser sentence. You are sentenced to two years imprisonment, that shall date from 17 July 2014 and expire on 16 July 2016, 16, not 17. I fix in relation to that offence a non-parole period of one year to date from 17 July 2014 and expiring on 16 July 2015. 11. In relation to the s 116 certificate, Madam Crown, I am right, there are two related offences, one of take and drive a conveyance, the other of unlicensed driving? 12. SMITH: That's correct, your Honour, and in relation to the backup offences I'd ask that they be dismissed. 13. HIS HONOUR: I am happy to do that, I will dismiss the backup charge, it's a malicious damage charge, isn't it, from memory? 14. SMITH: That's correct, your Honour. 15. HIS HONOUR: I haven't got the certificate. I couldn't find the certificate when I was sorting this out early this morning. 16. In relation to the take and drive vehicle matter, you are sentenced to six months imprisonment, that will date from 17 July 2014, expire on 16 July 2015. 17. In relation to the drive whilst unlicensed pursuant to s 10A you are convicted without penalty. 18. In relation to the armed robbery matter committed on 30 August, that is with a dangerous weapon, taking into account the matter on the Form 1 you are convicted. You are sentenced to a term of imprisonment by way of non‑parole period of three years and three months to commence on 7 July 2015. That period of non-parole will expire on 16 October 2018. In relation to that offence I fix a balance of sentence of one year three months to date from the expiry of your non-parole period, that balance of sentence will expire on 16 January 2020. 19. In relation to the matters in Tumut, likewise, I fix concurrent sentences taking into account the matters on the Form 1. In respect of counts 1 and 2 you are convicted. In respect of each matter you are sentenced to a non-parole period on each offence to two years and five months to date from 17 July 2016. That non-parole period will expire on 16 December 2018. On my calculation that leaves a balance of sentence in relation to each offence of three years and seven months. That balance of sentence on my calculation will expire on 16 July 2022. 20. You will be eligible for release to parole on 16 December 2018; and Mr Roberts will be eligible for release to parole, on my calculation, on 28 February 2018, and the differences between your sentences I trust I have explained. 21. Madam Crown, are there any technical matters? 22. SMITH: Your Honour, in relation to the offender Roberts, in respect of the very first sentence that you imposed at Mount Pritchard, if your Honour could just please give me the dates in relation to that because I think I mistranscribed them? 23. HIS HONOUR: As I have noted it in handwriting, and I hope I said it the way I have written it out in hand, three years six months imprisonment dating from 1 March 2014, expiring on my calculation 31 August 2017. 24. SMITH: Thank you, your Honour. 25. HIS HONOUR: That is taking into account the four year sentence imposed by his Honour Judge Conlon, in relation to the other offender, making allowance for the paucity of information and all the rest. 26. SMITH: Thank you, your Honour. 27. HIS HONOUR: What I know of the others criminal history and the fact they were both on parole. 28. STYLES: Your Honour, just one matter, for the record I made a note, your Honour may or may not have said this but in respect of-- 29. HIS HONOUR: I am sure I said it and I'm sure it's wrong but you tell me what I've said? 30. STYLES: In respect of the offence for Mr Roberts on 30 August 2013 at St Helens Park. 31. HIS HONOUR: Yes. 32. STYLES: Your Honour, I think said that the penalty was expiring in 2007 which fairly obviously on my interpretation was 30 November 2017. 33. HIS HONOUR: No. No. Just let me double-check my figures. Two years nine months from 1 March 2015 expiring on 2017. 34. STYLES: Yes, I think you might have expressed 2007. 35. HIS HONOUR: That's what I have written, 2017. If it slipped out '2007' that is an obvious error and the balance of sentence expiring on 28 February 2019. The fixing of the non-parole period for that is to permit the accumulation of the other sentence. 36. STYLES: Yes. 37. HIS HONOUR: But the overall effective sentence in your client's case will be seven years three months with an effective non-parole period of four years reflecting a finding of special circumstances on a range of basis, and likewise in relation to Mr Williams, a finding of special circumstances on a range of basis but effectively for him a total sentence of eight years with a non-parole period of four years five months but different commencement dates. 38. STYLES: Your Honour, just for the prisoners who I fear we may not be able to see before they get shipped, can your Honour just repeat the ultimate possible release dates? 39. HIS HONOUR: I am going to do that. 40. STYLES: Thank you, your Honour. I have nothing other technical to add. 41. HIS HONOUR: This is just a barrage of words for your client and Mr King's client, I understand all that, it's a barrage of words that might be expressed in shorter detail by another judge, I don't know, but certainly requires attention to many issues that if not mentioned will be the subject of complaint. 42. Mr Williams, in your case, you are going to be eligible for parole on 16 December 2018, that is going to be in about four years' time, just over four years' time, do you understand that? 43. And in your case Mr Williams, you are going to be eligible for parole on 28 February 2018. 44. OFFENDER WILLIAMS: I am sorry your Honour, who's that, who was that for, you said Mr Williams twice? 45. HIS HONOUR: Sorry. Mr Roberts. Mr Roberts is eligible for parole on 28 February 2018. So you're eligible for parole about nine and a half months after Mr Roberts' is eligible for parole. But your sentence starts a bit later because of that non-parole period fixed by the Magistrate and it will be a matter for the Parole Authority whether you are released to parole at that time. I can't come downstairs with you and explain it all to you again, I'm afraid, I don't mean that unkindly but I'm hoping you will understand in your case the total sentence imposed is eight years with a non-parole period of four years five months, and in the case of Mr Roberts it is a total sentence of seven years three months with a non-parole period of four years with different commencing dates. 46. Thank you, you are excused. Thank you, gentlemen, very much. Thank you to the Corrective Services Officers. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 January 2016