R v Farmer [2017] NSWDC 22

District Court New South Wales

Medium Neutral Citation: R v Farmer [2017] NSWDC 22 Hearing dates: 10 February 2017 Date of orders: 10 February 2017 Decision date: 10 February 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to an aggregate term of imprisonment consisting of a non-parole period of 3 years and a head sentence of 6 years Catchwords: CRIMINAL LAW – Sentence – Attempted armed robbery in company – Ongoing drug supply Cases Cited: R v Henry (1999) 46 NSWLR 346; (1999) 106 AcrimR 149 Category: Sentence Parties: The Crown Jak Farmer Representation: Counsel: P Marr – The Crown Mr B Bickford – The offender Solicitors: Director of Public Prosecutions Legal Aid Commission File Number(s): 2014/136835

Judgment 1. HIS HONOUR: When the offender was but 18 years of age, and thus still in many respects an immature young man, he committed two offences of great seriousness. He has now done a substantial time in custody pending sentence. It is Mr Bickford's submission, and the offender's family's hope, that that time in custody will be enough. Unfortunately, the offences committed by the offender are of such seriousness that a non-parole period expiring today would fail to reflect the objective gravity of his conduct. 2. The first offence for which Mr Farmer must be sentenced is an offence of attempted armed robbery. This was a somewhat remarkable offence. Late one evening at the Bull N Bush Hotel at Medowie things were very calm. I know that because the Crown played to me in the course of these sentencing proceedings some closed-circuit television footage. 3. At about 10 o'clock two offenders entered the hotel wearing balaclavas. The first offender held a pistol and the second offender, this offender, held a machete. There was a getaway driver in the car outside. 4. Working behind the bar were two people, a man and a woman. The first offender, the man with the gun said "Give us your money, give us your till" while presenting the pistol towards the bar staff. This offender stood behind the man with the pistol holding his machete. 5. Somewhat remarkably neither of the bar staff appears to have been terribly concerned about what was happening. It was apparent from the video that they were not going to cooperate. Rather than escalate matters the two armed offenders, including the offender before me today, left empty handed, followed by various patrons as they went. It is not known whether the pistol was a real one or whether it was loaded. Certainly no shot was fired. 6. The other serious offence committed by the offender is an offence of ongoing supply of methylamphetamine. 7. Telephone intercepts revealed the offender's drug dealing activities. On 18 April he arranged to buy some drugs and on two occasions agreed to supply some methylamphetamine, half a gram on one occasion and a point on another occasion. 8. On Anzac Day the offender supplied one gram and made agreements to supply more. On 1 May 2014 he agreed to supply half a gram of ice, agreed to supply a point of ice and agreed to supply four points of ice. And on 3 May he agreed to supply a point of that drug. He was arrested soon after and there is no suggestion that the offender would have voluntarily ceased his drug supply activities were it not for the intervention of police. 9. The offender is still a young man, he is only 21 years of age and as I said he was 18 at the time of these offences. He grew up living with his mother and for most of his early life, his then stepfather. He had a good relationship with that man, but when his mother's relationship with him broke down the former stepfather ceased all contact with the offender, a matter which upset him deeply. 10. It is apparent that the offender was doing well in his life. He finished school at Year 10 and got offered a trade assistance job. A reference tendered to me today from his then employer speaks about the offender's work efforts when he first started work. Indeed he was to be given an apprenticeship as management had noticed his efforts. Then dramatic things happened when the offender befriended a new group of people. 11. The employer noticed a decline in the offender's performance, his attitude and then his attendance. Eventually the inevitable happened, he was sacked. He got sacked again from a different job. His behaviour at home changed until, quite understandably, he was asked to leave home. No-one could put up with the sort of behaviour that his mother described. It was relatively shortly after that that he committed these two offences. 12. Since his arrest he has spent a substantial time in custody. At one stage he was given Supreme Court bail to go to a residential rehabilitation facility. He did not last there. His mother explained it was not the sort of residential rehabilitation facility that was likely to do any good. But the fact remains that the offender was bailed to go there and when he breached his bail he did not surrender himself to the authorities, he went on the run. He was rearrested and put back into custody. 13. His mother, who gave evidence today, described a change in his behaviour. She said that when he first went into custody he was very cocky, but he seems to have now displayed a better attitude towards his misconduct. 14. He has substantial support amongst family and friends of family. Many people are willing to assist him to get a job when he is released from custody, a job as a diesel mechanic, on the roads, or in a sugar mill have all been postulated as possible. 15. The offender's pleas of guilty to these offences did not come early. Trial dates were set. Thus the utilitarian value of the offender's pleas are not as great as if they had been entered at the earliest opportunity. Nevertheless there is a value and I will discount the sentence I would have imposed by about 15% to reflect that circumstance. 16. Of course the R v Henry (1999) 46 NSWLR 346; (1999) 106 AcrimR 149 guideline judgment is of application. Many aspects of the common offence referred to in the guideline judgment are appropriate here. The offender was young with little or no criminal history. He was armed with a weapon like a knife, a machete, but there are some differences too. This was an attempt, not a completed offence. And as I have noted the offenders gave up very quickly when the bar staff apparently refused to give in to their demands. 17. The plea of guilty was slightly earlier than that considered commonplace in Henry. But on the other hand it cannot be forgotten that this was an offence committed in company and one of the offenders was armed with a pistol. This was an offence of some considerable seriousness, even if perhaps the bar staff and patrons did not treat it as seriously as maybe they should have. 18. The offender's ongoing supply activities were also serious criminal behaviour. He was a low level dealer, but one who is essential in the drug supply chain. Many people have been harmed by drug use and I have frankly gotten tired of referring to such harms in remarks on sentence such as these. In truth we are all harmed by drugs, drug use and thus drug supply. It is a serious matter indeed. 19. There is no suggestion that the offender was doing anything other than fund his own drug use through drug supply. The Crown makes no suggestion the offender was living a lifestyle of luxury. He was a user/dealer rather than someone who was in this simply to make financial gain. 20. Although the offender's mother speaks about his change in attitude, it is difficult to know what the future holds. He has a support network available to him upon release but he had a similar support network available to him at the time he committed these offences. Really, what the future holds for the offender depends on him and him alone. I cannot say that his prospects of rehabilitation are good or that he is unlikely to reoffend. 21. I have to take into account that the offender did breach his Supreme Court bail in assessing the likelihood that he will conduct himself in a law abiding manner in the future. 22. In assessing the sentences to impose and the overall sentence, it is important to bear in mind that these offences are of quite different criminal behaviour. There must be a degree of accumulation to account for the separate criminal activities that the offender engaged in. 23. I will, of course, take into account his pre-sentence custody when I select the appropriate commencement date and also the quasi custody of about five months at the residential rehabilitation facility when I select the length of sentence. 24. There are special circumstances in this case. The Crown conceded that matter. They relate to the offender's youth and first time in custody. 25. I return to something I said earlier concerning, the length of the sentence to be imposed and in particular the non-parole period. When an offender, even an 18 year old, conducts himself in a manner which involves serious conduct then lengthy sentences must necessarily result, despite the youth of the offender, such as is the case here. 26. I will impose an aggregate sentence of imprisonment. Were it not for the fact that I will impose an aggregate sentence, I would have imposed the following sentences. For the attempted armed robbery four and a half years imprisonment. The ongoing supply matter three years imprisonment. 27. Instead I will impose an aggregate sentence consisting of a non-parole period of three years to date from 23 November 2014 and a head sentence of six years. The non-parole period will thus expire on 22 November 2017 on which day the offender is eligible to be released to parole.