District Court New South Wales Medium Neutral Citation: R v Hall; Hall v R [2015] NSWDC 359 Decision date: 15 October 2015 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: In respect of the failure to comply with a condition of a good behaviour bond, under s 98(2) of the Crimes (Sentencing Procedure) Act 1999 no action is to be taken for the failure to comply. In respect of the appeals against sentence under s 20(2) of the Crimes (Appeal and Review) Act 2001 the sentences are set aside and the following sentences are imposed: For the offence of contravening an apprehended violence order, under s 10A of the Crimes (Sentencing Procedure) Act 1999 the offender is convicted without any further penalty. For the offence of intimidation a sentence of 4 months imprisonment is fixed, to date from 29 April 2015 and to expire on 28 August 2015. For the offence of assault occasioning actual bodily harm a sentence of 6 months imprisonment is fixed to commence on 29 April 2015 and to expire on 28 October 2015. For the two offences of aggravated break, enter and steal an aggregate sentence of 3 years and 6 months is imposed, to commence on 29 July 2015 and to expire on 28 January 2019. A non-parole period of 1 year and 9 months is fixed. Direction under s 97 of the Victims (Crime and Support) Act 2001 that $18,656 be paid out of the property of the offender to Crawford & Company (Australia) Pty Ltd. For the offence of driving a motor vehicle whilst suspended under s 10A of the Crimes (Sentencing Procedure) Act 1999 the offender is convicted without any further penalty. Catchwords: CRIMINAL LAW – Sentence – particular offence – aggravated break enter and steal – in company – break in – residential premises – ram raid – commercial premises – aggregate sentence – gravity of offences – low to mid-range of objective seriousness – principle of totality – course of continuing conduct – nature and circumstances of offender – unstable background – acknowledged that offending related to alcohol abuse – accepts responsibility – remorse – on conditional liberty at time of offending – fair prospects of rehabilitation – special circumstances for altering the ratio between head sentence and non-parole period – youth of offender – first time in adult custody – need for assistance in the community – accumulation of sentences – pleas of guilty at earliest available opportunity – combined 40% discount – Form 1 for offence of stealing a motor vehicle taken into account – appeals against sentence – breach of bond – matters heard together Legislation Cited: Crimes Act 1900 (NSW), ss 59, 112 Crimes (Appeal and Review) Act 2001 (NSW), s 20 Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13, 14 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 98(2)(a) Victims (Crime and Support) Act 2001 (NSW), s 97 Cases Cited: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 McGeown v The Queen [2014] NSWCCA 314 Category: Sentence Parties: Regina (Crown) Corey James Hall (Offender) Representation: Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) W McAuliffe, LBK Solicitors (Offender) File Number(s): 2015/078637;2015/127281 Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 25 August 2015 Before: Holmes LCM File Number(s): 2015/078637; 2015/127281 Judgment 1. I am sentencing a young man who is still only 20 years old, but who has committed two serious offences. The second is more serious than the first. In addition, he was sentenced by a magistrate to some gaol terms and he has appealed against those sentences. Finally he breached a good behaviour bond and I am dealing with him for that as well. 2. In sentencing him I take into account not only what he did and his prior criminal record, but also things which are personal to him, including his background and what happened to him in his formative years. 3. It is always important to start with formally noting of the crimes that I am dealing with. The young man's name is Corey Hall. As I said, he is still only 20 years old. He has pleaded guilty and adhered to the pleas to two offences of aggravated break, enter and steal. They were both committed on 26 April 2015. Both of them are offences against s 112(2) of the Crimes Act 1900 (NSW). That section sets a maximum of 20 years imprisonment to that crime. Not only that, Parliament has fixed a standard non-parole period of five years imprisonment to that crime. They are the two crimes that I am sentencing him for. When I am sentencing him for the more serious of the two aggravated break, enter and steal offences, Corey Hall has asked me to take into account another crime which he committed at the same time of stealing a motor car. I will take that into account and I have signed a form under s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) certifying that I will take that into account. 4. Turning to the formalities of the appeal, Corey Hall was charged with two offences arising out of some disorderly conduct on 15 March 2015, about five weeks before the two break enter and steal offences. One is intimidation which is offence against s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). That offence carries a maximum of five years imprisonment, although the magistrate was limited to a maximum of two years imprisonment. When he came before the Local Court magistrate on 25 August 2015 at Tamworth Local Court, his Honour imposed a sentence of 12 months imprisonment. That commenced on 29 April 2015 when Corey Hall was arrested. His Honour fixed a non-parole period for that sentence of six months. That sentence started on 29 April 2015 and is due to expire on 28 April next year. The non-parole period fixed by his Honour started on the same day and is due to expire later this month on 28 October. 5. His Honour also sentenced Corey Hall for an assault occasioning actual bodily harm which occurred on the same occasion. That is an offence against s 59(1) of the Crimes Act. His Honour imposed a sentence of 12 months with a non-parole period of six months to be served over exactly the same period of time as the intimidation offence. I should say that the offence of assault occasioning actual bodily harm carries a maximum of five years imprisonment. 6. The last matter which the Local Court magistrate sentenced Corey Hall on was for contravening an apprehended violence order. That occurred, it seems, in the early hours of 26 April 2015. It occurred in other words after the two break enter and steal offences. His Honour fixed a sentence of 12 months imprisonment for that with a non-parole period of six months. 7. I should add that Corey Hall pleaded guilty to all three offences before the magistrate and all three offences received exactly the same sentence. In that way, the magistrate's sentence could be regarded as lenient because there were three different offences involving three different victims or interested persons. 8. Finally I have to deal with Corey Hall because he breached a good behaviour bond. He got himself into yet another brawl last year on 25 October 2014. His partner, Alana Purcell, tried to calm him down but when she did this, Corey Hall pushed her to the chest and she became unbalanced and stumbled backwards. Because he was drunk at the time - a problem that he has and that I will come back to - the police, despite the fact that Alana Purcell did not complain, issued a apprehended violence order. One of the terms of the orders was that Corey Hall was not to be with Alana Purcell after he had been drinking. He had to wait for about 12 hours. After he had committed the two break, enter and steal offences he returned to the house of his partner Alana Purcell. But he had been drinking and was fairly intoxicated, so in returning to spend the night at her place he had breached that apprehended violence order. 9. I need to correct what I have said. When Corey Hall was in a brawl on 25 October 2014 he came to be sentenced by the magistrate. The sentence he received was imposed on 6 February 2015. Corey Hall received a good behaviour bond. But then when he got himself into the brawl the following month on 14 March 2015 where he intimidated someone and assaulted somebody else, he breached that good behaviour bond. I have to deal with that breach of the good behaviour bond. It is probably convenient to deal with that straight away. 10. The magistrate in February this year gave Corey Hall a benefit in giving him a good behaviour bond. But he has acknowledged that he breached the bond. The options which I have are set out in s 98 of the Crimes (Sentencing Procedure) Act. Section 98(2) provides that if I am satisfied that an offender has failed to comply with a condition of a good behaviour bond I may decide to take no action with respect to that failure or I may vary the conditions of the bond or impose further conditions, or I may revoke the bond. 11. Because of the various other matters which I am dealing with, including the appeals and two serious break, enter and steal matters, the breach of the good behaviour bond that occurred when he got himself into the brawl on 14 March 2015 fades away in significance. 12. So the first order which I make is this. I am satisfied that Corey Hall failed to comply with a condition of the good behaviour bond imposed on 6 February 2015 and under s 98(2)(a) of the Crimes (Sentencing Procedure) Act 1999 I decide to take no action with respect to that failure to comply. 13. I turn next to the appeals. As I said, there are appeals from three concurrent sentences imposed by the magistrate on 25 August this year arising out of three offences: intimidation, assault occasioning actual bodily harm and contravening an apprehended violence order. 14. I should say what happened to give rise to the intimidation and assault charges. As I said, they occurred because Corey Hall got himself into a brawl. Again, it seems that he was drunk. It was about 9 o'clock at night on Saturday 14 March this year. He turned up at someone's house, walked onto the front lawn and said to one of the occupants "Your kids aren't here, let's have a dig." He was told by one of the occupants to "just clear off", but Corey Hall continued to bait that man into fighting him. He said "Come out, I'll jump all over your head." He removed his shirt and threw it at someone else. Finally the man he was threatening or intimidating went and called the police. There was another man who had been watching this exchange, who told him to "just get in the car and fuck off". Corey Hall returned the abuse. The first man's abuse was justified; Corey Hall's was not. The man continued to tell him to leave, but instead of leaving, Corey Hall grabbed the man's singlet with both of his hands. He then punched the man to his face and head using both fists. The man obviously felt immediate pain and discomfort and did not get a punch away. Corey Hall only stopped when the man's partner intervened. The man, according to the facts of the offence contained in exhibit E "sustained a very swollen left cheek and black left eye. He also sustained a split to his left ear." The injuries caused him pain and discomfort. Arising from that behaviour Corey Hall was charged with the offence of assault occasioning actual bodily harm. 15. The third matter that Corey Hall is appealing from is the offence of contravening an apprehended violence order. That arose in these circumstances. As I said, there was an apprehended violence order in favour of his partner issued by the police. It prevented him from being with her after he had been drinking. As we know, he committed two break enter and steal offences on 26 April this year. What he did after the second was to go home to his partner's place. He had been drinking, hence he breached the apprehended violence order. 16. Breaching an apprehended violence order is regarded as a serious offence. It is dealt with under s 14 of the Crimes (Domestic and Personal Violence) Act. Parliament has fixed a maximum of two years imprisonment to the offence. Parliament has gone on to say in s 14(4) that unless I otherwise order, a "person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person." It is relevant to observe that this breach of the apprehended violence order involved no violence to anyone, although it was clearly a breach. Corey Hall put himself in the presence of his partner despite the fact that he had been drinking. It is the fact that when he drinks it causes a lot of problems in his life including why he is now in gaol. Despite that prohibition he put himself, but more significantly his partner, at risk. His only risk was being caught. His partner's risk was greater because he cannot be trusted after he has been drinking. Again, that offence is not as serious as some examples are. Some breaches of apprehended violence order themselves involve further violence to the same victim. Again, the offence must be seen in its context. I am sentencing him for far more serious offences. What I propose to do - given that there is no suggestion of any personal violence and some efforts on Corey Hall's part in due course to do some rehabilitation - is to simply record a conviction in respect of that offence. 17. So the second formal order which I make is this. In respect of the appeal against the sentence for the contravene apprehended violence order I determine under s 20(2) of the Crimes (Appeal and Review) Act 2001, I determine that appeal against sentence by setting aside the sentence. Instead of that sentence, under s 10A of the Crimes (Sentencing Procedure) Act 1999 I convict Corey Hall and dispose of the proceedings without imposing any other penalty. 18. I now turn to Corey Hall's appeals from his sentences for the intimidation and the assault occasioning actual bodily harm that he committed whilst in the brawl on 14 March this year. The intimidation offence was not a serious example of that kind of offence, but it was a significant breach of the peace. His action persisted as well. I, myself, would not have imposed a 12 month sentence, but I would have imposed a sentence of four months imprisonment. In due course I will do that. 19. The assault occasioning actual bodily harm was a more significant offence in this case. Taking into account the injuries which the victim sustained, I would impose a fixed sentence of six months imprisonment for that offence. 20. Hence, I will make a further order in disposing of those appeals. In respect of the appeals from the sentences for intimidation and assault occasioning actual bodily harm, under s 20(2) of the Crimes (Appeal and Review) Act 2001 I determine those appeals against sentence by setting aside the sentences. 21. For the offence of intimidation I fix a sentence of four months imprisonment to commence on 29 April 2015 and to expire on 28 August 2015. In other words, that sentence has expired. 22. In respect of the offence of assault occasioning actual bodily harm I impose of six months imprisonment to commence on 29 April 2015 and to expire on 28 October 2015. 23. I turn now to the serious crimes that Corey Hall has committed. As I said, there were two aggravated break, enter and steal offences. Both of them were aggravated because on each occasion Corey Hall was in company with a co-offender. 24. Things started harmlessly enough with a group of friends playing two-up on Anzac Day this year. They went home and then Corey Hall and another man, his co-accused called Dylan Lake, turned up. The four of them left late that evening. Before they left, one of his friends left his two-up winnings on the table. There was about $280. All four of them went off to a hotel in Tamworth. What happened there though was that Corey Hall and Dylan Lake were refused entry. What they did after they were refused entry was to go back to the house where their friends or acquaintances lived and broke in. When they broke in they stole the cash and some other coins. When they broke in they tried breaking into the front door but it wouldn't give way, so they went around the back and broke in through a fly screen. They lifted the window by pushing it in. They were looking for alcohol. It seems that Corey Hall didn't know anything about the $280 and that Dylan Lake had likely stolen that but, of course, they were both co-offenders in the break enter and steal. They even tried to get into a safe, but they could not open it. 25. Then they found some car keys belonging to one of the occupants of the house. They talked about stealing the car and doing a job. Corey Hall said that they went back looking for some clothes to cover their identity and some socks to put on their hands. Then they took the keys and stole the car. That is the offence that I take into account when I will be sentencing Corey Hall on the more serious of the two aggravated break, enter and steal crimes. 26. What they then did with the car was to drive to a business called Country Auctions in Armidale Road, Nemingha. They stopped over the road, put their hooded jumpers on and then reversed into the front window of Country Auctions. Corey Hall went in first; he grabbed a till drawer and they left and drove off. They counted the money and divided it up. Corey Hall said he got $250 and he thought that his co-offender, Dylan Lake, also got $250. But in fact the business said that $1,500 in cash was stolen. 27. They disposed of the clothing that was used to try to camouflage them and then Corey Hall turned up at Alana Purcell's place. She dropped Dylan Lake home and Corey Hall stayed there despite the fact that he had been drinking and would be in breach of one of conditions of the apprehended violence order. That second offence, as one can see, was a serious example of this kind of offence and one considered by the courts in the category of ram raid crimes. 28. Corey Hall is still a young man, but despite this he has a criminal record. He was dealt with in the Children's Court for offences such as stealing from the person, goods in custody, break, enter and steal, malicious damage, assaulting school staff and stealing a car. In the Local Court when he became an adult he was dealt with for receiving and common assault. He gets no leniency from his criminal record. It does not, in a case such as this, aggravate the sentence, but he loses any leniency that a person might get for not having any criminal record at all. 29. In addition, when he committed these two crimes he was on his good behaviour bond, in fact more than one, from 6 February 2015. But he was also on bail after being charged with the offences to do with brawling earlier on. What that means is that the magistrates had taken a considered decision not to send him into custody, but instead to sentence him to a good behaviour bond or to grant him bail whilst other offences are dealt with, and to release him into the community for his own betterment and not to expose him to prison. Despite that opportunity, Corey Hall committed these two further serious offences. The fact that he committed those serious offences whilst he was on what we call conditional liberty is an aggravating factor in sentencing him. 30. Ms W McAuliffe appeared for Corey Hall in Tamworth and called her client to give evidence. He confirmed that his partner is still Alana Purcell. She has a daughter and together they have a son who is aged 14 months. He referred to a letter which he wrote to me as the sentencing judge and said that he told the truth in that letter. The letter contained information about his background. He never had a relationship with his father. Indeed, he said when his mother was pregnant with him (Corey Hall) his father wanted her to have an abortion and did not want anything to do with Corey Hall. His father left and his mother formed a relationship with another man. There were other children and he lived in a household of six children altogether. With the other man that his mother lived with in Corey Hall's household there were alcohol, drugs and domestic violence. He said his mother and sisters faced most of the domestic violence. It was from his step-father. Then finally his mother's parents stepped in and took responsibility for the six of them. 31. Despite the fact that his grandparents had six of their own children, they took in Corey Hall and his siblings. He got into a fight with one of his uncles and got into trouble at school and was finally expelled when he was 16. His grandparents insisted on him working and he got a job for a couple of days a week, but he was not earning enough money so his grandparents asked him to leave home when he was 16. He became effectively homeless, sleeping on friends' couches. He started to drink; in fact he started to binge drink. He started to commit more serious crimes. This was so he could afford the alcohol. 32. Then Corey Hall met Alana Purcell. He changed. He stopped drinking for a while, he got himself a job working five days a week. But the pressure built up and they would have fights every now and again. The pressure was increased by them having their little boy. He started going out and drinking. She told him to stop. He acknowledged that his preference was to go out drinking so they split up. He said all of the offences he has committed and that I am dealing with him for were related to alcohol. He has had problems with alcohol since he was 16, except for the time when things were good between him and Alana Purcell. He had no serious help with his alcohol problem. 33. Corey Hall has said that he is prepared to give evidence against his co-offender. I say that in this context because he is presently in custody bail refused, or under sentence from the magistrate, and is in protective custody. Asked by Ms McAuliffe what that meant, he said the hours are the same but he is stuck in a cage away from other inmates. He has received some threats from the relatives of Dylan Lake or people he knows. He confirmed that he is prepared to give evidence against Dylan Lake who is apparently pleading not guilty. L MCAULIFFE: Your Honour if I may interject. I have received email from our Tamworth solicitors who said that Mr Dylan Lake has considered entering pleas of guilty to the offence. I do apologise, but I don't have a confirmation of the change of pleas. W MCAULIFFE: I have a recollection of seeing Mr Lake on Tuesday where he entered pleas of guilty your Honour. HIS HONOUR: Thanks, I do not think that will make a lot of difference. 1. Corey Hall is hoping that his former employer will offer him a job, but that is no guarantee. He acknowledged the impact of breaking into his own friends' home would have on them in losing trust. He has not had an opportunity to apologise in person. 2. He was cross-examined by Ms G Wasilewicz who appeared for the Director of Public Prosecutions at Tamworth. She had asked whether he had done any courses whilst in custody. He said there had been only one AA meeting for the last few months and no courses. He was on remand. He said that he broke into places during the week so that he could drink at weekends. It was feeding his alcohol habit. He broke up with his partner at the end of last year. He acknowledged that his anger was a problem as well and that it had caused the breakup in his relationship. 3. In the letter to me which became exhibit 1 Corey Hall confirmed that part of the troubles he faced as a child meant that he became isolated and that his academic record suffered along with his life at home. That is hardly surprising. He had no one to guide him and felt that he needed to steal money so that he could buy alcohol. He said that he is "ready to deal with the problems". He acknowledges that alcohol leads to further problems rather than to solving them. 4. I have some further information about Corey Hall because he was assessed by someone from the Community Corrections Service at Corrective Services and they prepared a pre-sentence report. It was dated 15 September 2015, so is fairly up to date, and the author said that Corey Hall has "a history of offending related to alcohol abuse. He acknowledged, and his partner and mother confirm, that he is unable to drink alcohol at a 'social' level. He related that he is 'unable to stop' and usually drinks to excess when he consumes alcohol. He reports illogical and unusual behaviour during these periods and frequently with limited recall." It notes his successful attempts at getting some control over his alcohol last year. The author said that Corey Hall "readily admitted his guilt and did not dispute the police allegations. He stated that his abuse of alcohol was the cause. He accepted responsibility for his actions and did not attempt to apportion blame to his co-offender." The author of the report thought that he would benefit from supervision. 5. One other piece of evidence I did not mention is in relation to the ram raid offence. The damage caused to the business that they drove the car into amounts to some $18,000. Exhibit D shows that. 6. I have been assisted by written submissions from Ms W McAuliffe which became MFI 1 and oral submissions from both Ms W McAuliffe and Ms Wasilewicz. I agree with Ms W McAuliffe that the fact that the offences were committed in company is not an additional aggravating factor, it is a part of the crime. One of the offences was committed in the home of the victims. As she pointed out, they were not home at the time, but that might have made the offence worse. They came home to find that their house had been broken into and things stolen. That to my mind is still an aggravating feature. As she fairly acknowledged, the offences were committed whilst her client was on conditional liberty. 7. It was not part of a planned or organised criminal activity. In both cases there was some planning, less for the first crime, but the second crime involved some more planning. They needed to get themselves some camouflage or disguise and they needed to get the car, select a victim's business and then commit the crime. But it was not planning that lasted over hours or days, but probably over half an hour or so. I agree with her that the financial gain involved is part of the definition of the crime. 8. Ms W McAuliffe argued that her client has good prospects of rehabilitation. I hope that his prospects of rehabilitation are good, but realistically I cannot find that. It has not really been tested. He is doing well in prison because he is staying off the alcohol. We do not know how he will go once he is released. I agree with her that he is remorseful and I will find that to his benefit. 9. He has pleaded guilty at what Ms Wasilewicz agrees is the earliest available opportunity and in due course will receive a 25% discount from his sentences. He will in fact receive more than that because there is the additional factor of him being prepared to give evidence against his co-offender. Ms W McAuliffe listed the various factors that I can take into account and I heard argument from her and Ms Wasilewicz that this is not a combined 50% discount case. I think her submission of it being around 40% is right, and in due course I will discount the sentences that I would otherwise impose on Corey Hall by 40% because of that combination of his plea of guilty at the earliest available opportunity and the fact that he was prepared to give evidence against his co-offender. (That is no longer necessary it seems from what I have been told from the bar table.) 10. The non-parole period of five years is a factor which I take into account. It is strictly not applicable because of the plea of guilty, but as Ms W McAuliffe points out, it remains as a signpost to a yardstick which I assess in light of other considerations. 11. Ms W McAuliffe pointed to personal factors for her client. Of real significance to me is the fact that he is so young. He is still aged 20. He identifies as an Aboriginal. He has the support of his family and of his partner and is the father of a young child. He was employed when he was arrested and, significantly, was raised in a home involving alcohol abuse and violence. He had to be put into care, he was expelled from home and became homeless when he was 16. Ms McAuliffe reminds me of what the High Court said in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571. In a joint judgment at [40] their Honours said - "The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way." That is a general consideration relevant to any sentencing and I take that into account. It is a factor which is also relevant when sentencing some Aboriginal offenders as the Court noted in the same paragraph. In any event, it applies in this case. 1. Normally when a judge imposes a sentence involving imprisonment, the judge fixes a non-parole period which is 75% of the overall sentence. Where there are special circumstances a judge can reduce that non-parole period. Ms W McAuliffe argued that there are special circumstances in this case. Her client needs time out in the community to deal with his alcohol abuse problem. It is Corey Hall's first time in adult custody and he is a very young offender. The factor of general deterrence is relevant of both offences, Ms W McAuliffe concedes. She urges me to bear in mind the principle of totality in that both break, enter and steal offences were committed in the same continuing course of conduct. She suggests that the sentences could be totally concurrent. I do not agree with that, but there will be a significant concurrence. 2. Ms W McAuliffe argues that the breaking and entering into the house falls within the lower level of objective seriousness. She acknowledges that it is towards the higher end of that range. I agree with her about that submission. She agrees realistically and correctly that the ram raid break enter and steal falls within the middle of the range of seriousness. I think she is right there. She argues that it would be at the lower end of that range. 3. There is another factor which is relevant in fixing the sentences, and that is that in pointing out to the police when he was arrested that he was not alone, that somebody else was with him. He not only indicated that he was prepared to assist the authorities with that offender, but by his own account made the two crimes that he committed more serious. It meant that instead of being charged with straight break, enter and steal he was able to be charged with aggravated break, enter and steal which is a more serious offence. I will take that into account in fixing the overall sentence as well. 4. Ms W McAuliffe acknowledges, realistically, that her client must receive a custodial sentence, there is no alternative. 5. Ms Wasilewicz pointed to the fact that there was some planning involved in dealing with the ram raid offence. I have made my findings regarding that. She acknowledged that the amount of damage, being just under $20,000, was not as serious as other ram raid offences, pointing to one example in McGeown v The Queen [2014] NSWCCA 314 where the damage was nearly $50,000. 6. Ms Wasilewicz too submitted and I accept that the prospects of rehabilitation could not be described as good. She acknowledged though that they could be described as fair. She agreed on the plea at the earliest available opportunity and agreed that there were special circumstances for making adjustments to the non-parole period. 7. I come now to indicate what I regard as appropriate sentences for these two serious aggravated break, enter and steal offences. For the ram raid offence I regard an appropriate sentence - bearing in mind how objectively serious it was, where it lies in that range, and the various personal factors that I have referred to – as one of five years. For the break and enter of the home and steal in company I regard an appropriate sentence as being one of three years imprisonment. 8. However, Corey Hall must receive the benefit of his early plea and the indication that he would assist. I would therefore reduce those sentences by 40% in each case. That means that instead of the five year sentence for the ram raid he will receive a sentence of three years imprisonment. It means that instead of the sentence of three years for the break and enter of the home, he will receive a sentence of one year and three months imprisonment. 9. I propose to aggregate those two sentences. In fixing the two sentences, one of three years and one of one year and three months, I would have accumulated them by three months. In other words, what I would have done if I had been fixing two individual sentences, would be to fix them so that there was a three month overlap so that he would serve a total of three years and six months imprisonment. That means he serves some time for each of the offences individually. I would not have commenced them at the same time as the prison sentences fixed by the magistrate and re-fixed by me. The magistrate fixed his two sentences started on 29 April 2015. I will fix the aggregate sentence to commence three months later, on 29 July 2015. The aggregate sentence will be three years and six months. It will commence on 29 July 2015 and will expire three years and 6 months later, on 28 January 2019. 10. The overall effect of the sentences, both the magistrate's which I have adjusted and mine which I have just fixed, is a sentence which will commence on 29 April 2015 and will ultimately expire on 28 January 2019. That is some three years and nine months. So overall Corey Hall will receive an effective sentence of three years and nine months. 11. Normally a non-parole period for such a sentence would be two years and nine months. That is 75% of three years and nine months. But because of the special circumstances that Ms W McAuliffe has referred to and Ms Wasilewicz acknowledges, I am going to reduce that non-parole period from two years and nine months to two years. So his non-parole period is two years. It commenced on 29 April 2015 and will expire on 28 April 2017. After that he will have to serve the balance of his term of one year and one month from 29 April 2017 to 28 January 2019. HIS HONOUR: I will sentence you formally now, officially, Corey Hall. Just listen to what I say. I will explain it more in a moment. 1. I convict you of the two offences of aggravated break enter and steal. I fix an aggregate sentence of three years and six months. That will commence on 29 July 2015 and will expire on 28 January 2019. I fix a non-parole period for that sentence of one year and nine months commencing 29 July 2015 and expiring on 28 April 2017. HIS HONOUR: You do the sums, make sure I've got it right and my associate will be doing the same. W MCAULIFFE: Sorry your Honour, I managed to confuse myself slightly. HIS HONOUR: We'll explain to you clearly, Corey Hall, shortly. OFFENDER: Yes your Honour. W MCAULIFFE: An aggregate sentence of three years and six months to commence on 29 July? HIS HONOUR: Correct. W MCAULIFFE: A non-parole period - and that's where I wasn't sure if your Honour said two years or one year and nine months. HIS HONOUR: You're right. I said both, and that's because I realised that I really have to fix a separate non-parole period for the sentence. I'm not aggregating the appeal sentences, I'm just aggregating the sentences for the break enter and steal. However in fixing a non-parole period I have to take into account the overall affective sentence. So I look at when it commenced on 29 April and when it finally finishes on 28 January 19, and I fix an effective non-parole period of two years. That is really notional, because really what I have to do is fix a non-parole period for the aggregated three year and six month sentence of one year and nine months. The effect should be an overall sentence - and this is what I want you to check - of three years and nine months, to commence 29 April 15, expire 28 January 19, an effective non-parole period of two years 29 April 15 expire 28 April 17. So just satisfy yourselves that I've got it right. 1. One of the other special circumstances I might acknowledge is the accumulation of the sentences for the break, enter and steal on sentences I have fixed on appeal. That is a special circumstance. HIS HONOUR: Take your time. W MCAULIFFE: Using my fingers your Honour, it seems that those dates seem right to me. I'm relying on my fingers your Honour, so-- HIS HONOUR: Take your time Mr McAuliffe, and we'll see how my associate - whether she thinks the same. I've got two out of three nods. L MCAULIFFE: Yes your Honour my calculation is correct as well. HIS HONOUR: Okay. Corey Hall, I've had to deal with your appeals, so I've reduced your sentences on the two appeals, one of them is six months, one of them is four months. They both start at the same time so they run together, and you're lucky there because the magistrate fixed them. So your six month sentence that I fixed started when you went into gaol on 29 April. That will expire later this month, in a couple of weeks' time on 28 October. The other sentence has already expired. It started 29 April, expired on 28 August. Do you understand that? OFFENDER: Yes your Honour. HIS HONOUR: Then I've had to fix the sentence for your two break and enters, for the breaking into the house, pinching the stuff there, stealing the car which I have taken into account, not separately sentenced you for, but mainly for the ram raid. Instead of fixing two sentences, I've fixed one sentence to cover both of those, and that sentence is three and a half years. I've kicked that off, not at the same time as the magistrate's sentence, but three months later, so that commenced on 29 July 15. So you've been serving some of that for a few months, but you've got to serve some time for that magistrate's sentence, so you're serving at least three months for that. Then the current sentence which I've imposed kicks in and it will expire on 28 January 19. So your overall sentence expires on 28 January 19 when your sentence will finish. I have to fix a non-parole period and I've taken into account all of the gaol term there and overall you're going to be in gaol for three years and nine months when you count the magistrate's. Normally for a gaol sentence of three years and nine months Parliament thinks that you should get about 75% non-parole period. Of that three years and nine months you should spend two years and nine months in gaol. I've brought that down from two years and nine months to two years and that's significantly lower than Parliament envisaged. I've done that because you're a young man, because you need your rehab and it's your first time in adult prison as a young man, and also because I had to make some adjustment for the fact that I've dealt with the magistrate as well. So the important date for you is 28 April 17, 28 April 17. On that day you become eligible for parole. Do you understand that? That's about a year and a half away, eligible for parole. Whether you get it not is up to the Parole Authority and I'm sure what they take into account is how you're going in prison and your behaviour and things like that. So the important date for you is 28 April 17 and if you're let out on parole, you're still under sentence but on parole in the community, until it finally ends in 28 January 19. Do you understand that as much as you can? OFFENDER: Yes your Honour. HIS HONOUR: Ms Mcauliffe, Mr McAuliffe, anything I need to add or do? W MCAULIFFE: Compensation order your Honour. HIS HONOUR: Tell me about that, who's asking for what? L MCAULIFFE: Your Honour I'd be asking for that. I have the legislation to hand up to you. I believe it's in relation to exhibit D, the letter from the insurance company and they're seeking a compensation order for $18,656.. HIS HONOUR: The legislation you've helpfully given me, where-- L MCAULIFFE: I believe it starts from p 38 s 96 and then s 97. 1. Under s 97 of the Victims (Crime and Support) Act 2001 (NSW) I direct that $18,656 be paid out of the property of Corey Hall to the insurer. W MCAULIFFE: Yes, I think Ms Wasilewicz said that the repairs have been undertaken and completed with the insurance company so the compensation order should be to hopefully-- HIS HONOUR: Sustain loss, okay. To? I don't have the insurer, something called Crawford, it's obviously an agent I expect. AIG, looks like AIG. L MCAULIFFE: Yes, your Honour I believe, and given the difficulty sometimes with insurance, sometimes the debts are sold on to agents and at other times agents represent the insurer company. I believe that it's exhibit D here, it confirms that it's Crawford & Company whom are owed the money, I believe acting on behalf of AIG. 1. I make the order that the figure of $18,656 be paid out of the property of Corey Hall to Crawford & Company (Australia) Pty Ltd. L MCAULIFFE: Your Honour I do apologise but I believe there is one more matter to be dealt with. HIS HONOUR: Yes, there's a related offence, is that right? L MCAULIFFE: Yes your Honour, the 16 section certificate offences. HIS HONOUR: One of them was a Form 1? L MCAULIFFE: Yes, and then the other one is the drive motor vehicle. HIS HONOUR: Drive whilst suspended, what do I do with that? L MCAULIFFE: We ask for a conviction in relation to that offence. HIS HONOUR: Just to be recorded? L MCAULIFFE: To be recorded, just for the disqualification period... 1. In respect of the related offence of driving the motor vehicle whilst licence suspended I record a conviction under s 10A of the Crimes (Sentencing Procedure) Act 1999. ********** 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: 10 February 2016