Director of Public Prosecutions (NSW) v Hammond

The facts

1. Agreed Facts were tendered without objection. They indicated that the victims in the matter, Matthew Hawkins aged 20 years and Katey Blacklock aged 18 years reside together in premises in Houston Street, Gymea. Those premises are a single-storey three bedroom home. At about 12.30am on Sunday 8 May 2016 the victims arrived home after having attended a friend's birthday party in Caringbah. When they returned home a number of their friends also attended and they continued to socialise. The group was apparently intoxicated. At about 5am Matthew Hawkins received a telephone call from Hammond who he had known for four years, the men having previously worked together as plumbers. It appears that prior to this evening, Hammond and Hawkins had been good friends, and had regularly socialised together. Hammond informed Hawkins that he was in Gymea and asked if he could drop by with one of his friends. Hawkins agreed to this and Hammond arrived at the premises with three males including Clough. Viliamu was not present. It seems that at least one of the purposes for this attendance was to source illegal drugs, although it is not clear from whom those drugs were to be obtained. After Hammond arrived there was a dispute between him and one of Hawkins friends and as a consequence, Hammond, Clough and the two other males who had attended with them were asked to leave. According to Clough's interview with Police, the group were successful in purchasing illegal drugs prior to their departure. The facts indicate that the concerns about the behaviour of Hammond, Clough and their associates were such as to cause Ms Blacklock to contact 000 and request police assistance. A police vehicle was dispatched to the location. Hammond, Clough and those with them then left the house and Ms Blacklock again contacted 000 to cancel the call for the police to attend.
2. Shortly after Hammond, Clough and their two associates had left the premises, the victims heard footsteps run up the side of the house and the electricity and water were turned off. It is not indicated as to who did this, but it was certainly one or more of these four men. Ms Blacklock again contacted 000 requesting police assistance as she was concerned for her safety. About 10 minutes later Hawkins walked outside the cottage and turned the power and water to the location back on. Sometime thereafter a police general duties vehicle attended the address and spoke with the victims. Hammond, Clough and their friends were not in the area and the police left. Mr Hawkins and Ms Blacklock shut all the doors to the home and went to bed.
3. Mr Hawkins says that at around 8.30am he heard the doorbell ring and then some knocking. Shortly afterwards the victims, who were in their bed, awoke to find Hammond, Clough and Viliamu (who they had not met previously) entering their bedroom. All of the offenders were screaming at the victims. What precisely was being said is not made clear.
4. Viliamu approached Hawkins and slapped him across the face with an open hand causing him immediate pain. Viliamu then attempted to lift up the bed from the side and tip the victims out. At this point Hammond was leaning up against the doorway in the bedroom that opened to an attached sunroom. The victims asked why he would bring these people into their house and told them to get out. Hammond replied "It is out of my hands now. It is between Matt and him. I can't do anything about it". The victims were screaming at the offenders to get out. Viliamu said "This is my land. Every decision that is made around here comes by me" and "I would look like a king if I was eating your toes".
5. Following those plainly menacing words being spoken by Viliamu, Hammond and Clough, who were still in the bedroom said words to the effect "That is enough, we need to go". Viliamu refused to leave. Viliamu then walked out of the bedroom into the kitchen and the victims heard him rustling through the kitchen drawers. Hammond and Clough remained in the bedroom. Viliamu came back 30 seconds later with a large steak knife from the kitchen. At this point Ms Blacklock was not surprisingly extremely scared and thought that she and Hawkins were going to be murdered by Viliamu. Viliamu walked up to Hawkins and held the knife against his toes and said "I am going to cut your toes off".
6. Importantly, so far as this sentencing exercise is concerned, the Agreed Facts make it abundantly clear that neither Hammond nor Clough were a party to Viliamu's use of the knife and did not reasonably foresee that Viliamu would arm himself in the way that he did. In my view, this fact significantly distinguishes the objective criminality of the three offenders.
7. The facts reveal that Viliamu eventually dropped the knife on the ground. At this time, Clough took a bottle of champagne that belonged to the victims from the fridge, opened it, threw the cork at Ms Blacklock and then started to drink out of the bottle.
8. Ms Blacklock then managed to run out of the bedroom and into the dining room where she rang 000 requesting police assistance. Viliamu followed her and said "I am not going to hurt you. I just wanted to scare your boyfriend." He was again requested to leave but refused saying to her "Shut up you are a sook". Ms Blacklock was able to get onto the police operator however found it difficult to explain the situation due to Viliamu standing over her shoulder whilst she was on the phone. Viliamu then said to Blacklock "If you record us you won't know what's going to happen. I'll be back at 1pm. You better be here you little bitches". At that time all three offenders left the premises. Clough left the premises with the victim's bottle of champagne, giving rise to the single charge of larceny that he faces.
9. Police arrived at the premises about 9.45am and established a crime scene. The victims received no physical injuries as a consequence of the incident, however have been significantly traumatised as a result of the actions of all offenders.
10. Over the next number of days each of the offenders was arrested and charged with the matters before the court.

Assessment of objective seriousness

1. I have earlier set out the penalties provided by the Parliament for these offences. People are entitled to feel safe and secure within their homes. The community has a reasonable expectation to such safety and security and it seems to me that courts are required in their sentencing practices to support that expectation. The privacy of a person's home, and indeed their bedroom, are privacies that the law seeks to jealously guard and protect. In Palijan v R [2010] NSWCCA 142, Barr AJ put it this way (at [22]): There is to my mind something particularly repugnant about the forced entry of an offender into a house and violating the safety of that place by carrying out an attack like that of the applicant.
2. In Hardie v R; Phillipsen v R [2012] NSWCCA 6, which was a case dealing in part with an offence under s 114(1)(d) of the Crimes Act, RS Hulme J noted at [22] that in "judging offences of the general nature of those committed by the applicants the courts have regarded it as appropriate to look at the motivation for the offences". Factors such as some inappropriate behaviour by the victims or some significant provocation are matters that can be taken into account in determining the objective seriousness. In this case, there is no suggestion of any such provocation or inappropriate conduct by the victims such as would go to explain the conduct of the offenders. While there is a degree of planning, it is relatively unsophisticated. Of course the offending was committed in company and the combined presence of all three offenders throughout the incident undoubtedly conveyed to the victims an increased threat of violence and resulted in them having an increased concern for their own safety.
3. As in any sentencing task, it is important that I consider their roles and conduct of each offender. So far as Hammond and Clough are concerned, their conduct following the unlawful entry into the house was largely confined to their yelling and screaming at the victims while they lay in their bed. In this regard it is also necessary for me to bear in mind that Hammond's role is distinguished from Clough's by reason of the fact that Hammond had previously been a friend of the victims. If it were not for Hammond's involvement then the entire course of criminal conduct would likely not have taken place. Clough of course committed the further offence of larceny at the tail end of the incident and the commission of that offence must also be borne in mind. Viliamu's involvement in the offending is in my view significantly more serious given the fact that he armed himself with a knife during the course of the offence and once armed, and indeed before being so armed, made serious threats of violence particularly towards the victim Hawkins. I am mindful of the fact that Viliamu being armed is an aggravating feature in respect of the intimidation offences and the offence of remaining in a building with intent to commit an indictable offence. The fact of his being armed is an element of the remaining charge that he faces and should not in those circumstances be taken into account as a matter of aggravation. The facts make clear that upon Viliamu's initial threat to eat Hawkin's toes, Hammond and Clough wanted nothing further to do with the offending and were intent on leaving. It is at that point that Viliamu's conduct escalated the entire episode into something far more serious than it already was. While the offending by all three offenders was of relatively short duration it nevertheless caused significant harm to each of the victims. This is not surprising.
4. In considering the objective seriousness I have borne in mind the submission made by Mr Boulten of Senior Counsel and specifically adopted by Mr Macedone, to the effect that offences under s 114 involve offending with the intention to commit an indictable offence per se. In making an assessment of objective seriousness it is important to keep in mind the indictable offence said to have been intended. In this case, that offence is intimidation, which although itself a serious offence is obviously of less seriousness than other indictable offences sometimes associated with s 114 offences such as those where actual physical violence is visited upon victims. I have also had regard to the facts that the offending was committed in company and that the offending was committed in the victim's home as matters aggravating the objective seriousness. Mr Macedone effectively put to me that I should regard the offending as less serious because it occurred in what he described as a "drug house" rather than an ordinary residential home. I cannot accept that submission. I have been unable to find any authority to support the type of distinction that he seeks me to draw. Further, whilst it does not appear disputed that drugs were sourced by Hammond and Clough at the victim's home earlier that day, there is no evidence which allows me to conclude that either victim were themselves involved in those illegal transactions.
5. Having regard to all of the circumstances, I have assessed the entire offending, save for Clough's larceny charge, at a point somewhere below the mid-range of objective seriousness. I have assessed Clough's charge of larceny at a point towards the lower end of objective seriousness, and have concluded that it can be dealt with in a very different way to the other sentences to be imposed. It is not in my view a charge in respect of which the section 5 threshold is crossed. So far as Viliamu's conduct is concerned, I have assessed at a point above that of Hammond and Clough but still not above the mid-range. So as to be clear I have determined that Viliamu's conduct is the most objectively serious, that Hammond's conduct falls below it and that Clough's conduct falls below that of Hammond. That being said, what remains abundantly clear is that all of the offenders behaviour involved serious criminal conduct of a type that is abhorred by the community and which must result in the imposition of custodial penalties of some type.

Hammond

1. Hammond is aged 31 years. He is a hard working plumber. He resides with his partner and her family in the Cronulla area. He was raised by his single mother in the absence of a father figure and was an accomplished sportsman as a young person. Following the completion of his schooling he undertook an apprenticeship and became a tradesman. It appears to be the case that over a lengthy period of time he has had difficulties with the consumption of alcohol and drugs and that there have been regular episodes of bingeing. Dr Olav Nielssen in his report of 17 February 2017 provides a diagnosis of substance use disorder in remission. At the time of the offending Hammond was drinking alcohol in hazardous quantities and using drugs including MDMA and Cocaine. His drug and alcohol abuse was apparently confined to weekends.
2. He is in a stable relationship and his partner has provided a statement to the court which speaks of the offender's reformation since the time of his arrest. Following his arrest he spent a period of 15 days in custody and this period of time has no doubt had a salutary effect upon him. Following his being charged the offender lost the job that he had held for some seven years. He then commenced his own plumbing business which he continues to operate. He has not consumed alcohol or taken drugs since his arrest and has regularly engaged with psychological counselling. That counselling has undoubtedly been beneficial. He has also undertaken regular urine drug analysis and all of the tests that he has undertaken have been favourable. Mr Boulten of Senior Counsel submitted that "his turn around has been manifest".
3. A complicating and aggravating feature for Hammond is the fact that he was on conditional liberty at the time of the offences. On the 29 October 2015 he had been convicted and placed on a 12 month section 9 bond in the Sutherland Local Court for an offence of common assault. I have read the facts in respect of that assault which occurred on 28 May 2015 and note that it arose in circumstances where his nephew who suffers from a number of disabilities and with whom he enjoys a close relationship, had been taunted and bullied by some other young people. The offender went to his aid following a request from his nephew and whilst doing so struck a single open hand blow to the face of the victim. The law requires me to take this breach of bond into account and I will do so. I also propose to revoke the bond and resentence the offender for that assault. The pre-sentence report dated 17 March 2017 is a positive one. He has expressed regret for his actions on 8 May 2016 and acknowledged the impact that his conduct has had on the victims. The pre-sentence report describes in some detail the positive lifestyle changes that he has made since his arrest. It is not disputed that he spent 15 days in custody following his arrest and this period of time will be taken into account in the sentence to be imposed.

Clough

1. Clough is aged 27 years. He is also employed as a plumber. Like Hammond, he was an enthusiastic consumer of both drugs and alcohol at the time of this offending. He has resided in a de facto relationship with his partner for 5 years and the couple live with her parents. He is a hard worker and he has no prior criminal convictions. At the time of these offences his drug use was heavy however he has not used drugs since the offending and has significantly reduced his alcohol consumption. He has taken up boxing as a sport and trains regularly. I was told by Mr Macedone that this has helped him to maintain focus in his life. It was indicated to me that he was shocked, remorseful and ashamed for the part that he had played in this event. He was granted bail on the day following his arrest.

Viliamu

1. Viliamu is aged 30 years. Like his co-offenders he had consumed a large amount of alcohol, cocaine and MDMA on the night of the offending. He is employed in the building industry. The report of Mr Sam Borenstein, Clinical Psychologist, dated 17 March 2017 indicates that at the time of the offending he was involved in significant alcohol and drug binges on weekends. It is said that at the time his relationship with his then partner was deteriorating and that he was using substances as a means of escaping his circumstances. He was born in New Zealand. According to both his oral evidence, and the report of Mr Borenstein, he commenced to use cannabis when he was aged 12 years. At age 15 he was introduced to "ice" and upon his coming to Australia when he was 16 years old, his use of illicit drugs including ice, cocaine and MDMA escalated significantly. Since his arrest, he has abstained from all illicit drugs and markedly reduced his alcohol intake. I accept that he feels guilt and is remorseful for his conduct and particularly its impact on the victims. Following his arrest he has moved in with his aunt and uncle and attends church regularly. I have read a document from his Pastor confirming this attendance. In addition he has undertaken regular drug and alcohol counselling, consulted a psychologist, and attends AA meetings. He has a criminal history which is lengthier than his co-offenders and which is consistent with someone who has over indulged in both alcohol and drugs over an extended period. His record includes a number of drink driving offences, a number of assault offences and offences relating to offensive behaviour, damaging property, and driving whilst disqualified. A favourable pre-sentence report was provided. It confirmed the positive lifestyle changes he has made since his arrest, his strong employment history, his abstinence from drugs and his regret for his behaviour. He spent 2 days in custody following his arrest and this period will be taken into account in the sentence imposed.
2. It was put on his behalf that his drug addiction ought to be regarded as a mitigating factor on sentence. Some considerable time was spent by Mr Khatiz advancing this submission. In making it, Mr Khatiz properly conceded that as a general rule drug addiction in an offender is not a mitigating factor on sentence. In the armed robbery guideline judgment case of R v Henry (1999) 46 NSWLR 346, Spigelman CJ, made this abundantly clear. Mr Khatiz relied for his submission upon the proposition that the offender's drug addiction from a young age meant that he was in effect not able to control his behaviour. He pointed to the fact that the offender commenced the use of cannabis at age 12, ice at age 15 and then continued to consume drugs with increasing regularity until the time of his arrest. He directed my attention to the remarks of RS Hulme J, in R v Todorovic [2008] NSWCCA 49 at [58], where his Honour said: In R v Henry (1999) 46 NSWLR 346 this Court considered at length and firmly rejected the proposition that, in general, addiction to drugs should be regarded as a mitigating factor. In doing so the Court recognised that there would be cases where the general rule would not apply, for example where the addiction was the result of youth or medical treatment over which the offender had no relevant control but (at p358) it rejected the proposition that a genetic predisposition or a neurobiological or physiological base to an addiction was sufficient to bring an offender within this exception.
3. More recently in Daniels v R [2016] NSWCCA 35 the Court of Criminal Appeal has had cause to consider these comments of RS Hulme J. In that case, the court was constituted by Hoeben CJ at CL, Fullerton J and RS Hulme AJ. The lead judgment of the Court was delivered by Justice Fullerton, with the agreement of both of the other judges. At [39] and following her Honour said this: Counsel also submitted that the applicant's abuse of alcohol from a young age was such that it should be regarded as a factor mitigating the seriousness of his offending. In support of that submission, the Court was referred to a passage in R v Todorovic [2008] NSWCCA 49 at [58] where RS Hulme J observed that although this Court, in R v Henry [1999] NSWCCA 111; 46 NSWLR 346, rejected the proposition that addiction to drugs should be regarded as a mitigating factor on sentence, there might be exceptional cases were an offender's youth, or other circumstances over which the offender had no control and which predisposed an offender to drug abuse, might ameliorate a sentence as an exception to the general rule that drug addiction is not a mitigating factor. I am not persuaded, by parity of reasoning with his Honour's observations in Todorovic or otherwise, that the applicant's teenage drinking is exceptional in duration or degree, or that there is any principled basis upon which the applicant could have invited the sentencing judge to afford him any particular leniency because of his alcohol use, even if, as seems implicit in the submission, his underage drinking might have predisposed him to commit offences of violence.
4. Whilst the comments of the court in Daniels v R concerned the abuse of alcohol, they have equal application to issues concerning drug abuse. It seems to me that what RS Hulme J was referring to in R v Todorovic, and what Fullerton J makes clear in Daniels v R, is that drug addiction in a case where an offender is a very young person or where the addiction was formed at a young age may in an exceptional case, be regarded as a mitigating factor. Regrettably, it is not exceptional for persons to commence the use of drugs at a young age. To adopt the language of Fullerton J, Viliamu's drug use is neither exceptional in duration or degree.
5. Following the decision in Daniels v R, the Court of Criminal Appeal again considered this issue in Hayek v R [2016] NSWCCA 126. There, Wilson J (with whom Bathurst CJ and Schmidt J agreed) had the following to say on this issue: 75 The applicant's contention in this regard appears to be based upon a mistaken understanding that there is a principle of law to the effect that a drug addiction commenced when an offender was young is a mitigating feature for crime committed thereafter. There is no such principle. … … 80 An addiction formed as a child may be a mitigating factor in the particular circumstances of an individual case, but it is an entirely different proposition to suggest that it will always operate in that way, and for any person who began using drugs in youth.
6. Whilst the evidence would allow me to conclude on balance that this offender has been addicted to drugs from a young age, it cannot be said that the circumstances that have arisen in the ensuing period of almost two decades are so exceptional as to mean that he has had no control over the position in which he has now found himself. This is particularly so where he has had many interactions with the criminal justice system and has, following those interactions been provided with opportunities for reform. Regrettably he has not grasped those opportunities. I reject the submission of Mr Khatiz that the defendant's drug addiction ought to be regarded as a mitigating factor. While exceptional cases of the type described by Fullerton J in Daniels v R may exist so as to warrant departure from the general principle, this is not such a case.
7. It was submitted to the court that the defendant had outstanding prospects of rehabilitation. Whilst I accept that there have been some real steps towards rehabilitation taken by him since his arrest, I would not categorise his prospects as outstanding. Rather, given the progress that he has undoubtedly made, his prospects of rehabilitation should in my view be regarded as cautiously optimistic or reasonable. I will return to this issue shortly.

The statutory considerations

1. The Crimes (Sentencing Procedure) Act 1999 mandates that the court is to take into account the aggravating and mitigating factors set out in s 21A of the Act, along with any other objective factor that affects the relevant seriousness of the offending. So far as the aggravating factors in s 21A(2) are concerned, I note that the offending was committed in company, involved the actual or threatened use of violence and a degree of planning. So far as concerns Viliamu it involved the use of a weapon. Further and as earlier noted the offending occurred in the home of the victims, and resulted in substantial harm to them. In addition, both Viliamu and Hammond each have a record of previous convictions. In Hammond's case, he was on conditional liberty at the time. In considering the mitigating factors in s 21A(3) I note that Clough has no record of previous convictions, and that each offender has shown remorse for his conduct, pleaded guilty and has reasonable prospects of rehabilitation. All of these relevant aggravating and mitigating factors will be taken into account.
2. Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the purposes for which a court may impose a sentence. Those purposes are: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, 7. to recognise the harm done to the victim of the crime and the community.
3. In my view, all of these purposes are relevant considerations in this matter, and sentences must be imposed that reflect and pay attention to each of them. So far as concerns the victim, I have read the victim impact statement of Katey Blacklock. I accept that this incident was a traumatic one for her and that she continues to have ongoing difficulties as a consequence including flashbacks, nightmares and a loss of trust in other people. She also describes an ongoing haunting fear of thinking she was going to die. I have taken into account and recognised the harm to Ms Blacklock in determining the sentences to be imposed. While I have not been provided with a victim impact statement from Mr Hawkins, I accept that the incident would have been distressing for him, particularly in circumstances where his friend Hammond was one of the offenders. Further, common sense and life experience dictate that the fear felt by him would have been palpable when Viliamu placed the knife against his toes and said that he intended to cut them off.

The Crown submissions

1. Mr McAuliffe, who appeared for the Director of Public Prosecutions, provided the court with written submissions on sentence in respect of each offender. He also supplemented those by oral submissions in reply to each of Messrs Boulten, Macedone and Khatiz. His written submissions pointed to the fact that the offences were committed in company and in the victim's home. In Hammond's case he points to the fact that Hammond was on conditional liberty at the time of the offending, and submits that there is an element of planning by Hammond. He notes and I accept that without Hammond's prior knowledge the offending could not have occurred. In Viliamu's case he points to the serious nature of the intimidation of Ms Blacklock in following her in her own home while she was trying to telephone for help, and the significant escalation of the offending by his use of a knife. In Clough's case he points to the theft of the champagne and to the throwing of the champagne cork at Ms Blacklock which is said to have exacerbated the fear and humiliation that she was then feeling. In respect of each offender, the Director submits that the section 5 threshold is crossed and that a full time custodial sentence is open to the court. I accept that the threshold has been crossed and my referral of the offenders for an intensive correction order assessment is indicative of that finding. While full time custody is certainly open, I understood Mr McAuliffe to concede at least so far as Hammond is concerned, and by inference Clough, given his slightly lesser involvement and lack of prior history, that there were alternatives open in respect of those custodial penalties that did not result in sentences of full time imprisonment being served. It was also submitted by the Crown that there should be at least partial accumulation to recognise the separate criminality in the different offences committed.

The sentences

1. Given my findings as to the objective seriousness of the offending referred to earlier and the subjective cases of each offender and their pleas of guilty. I have determined that the appropriate sentences are as follows:

Hammond Seq 2 Intimidate Katey Blacklock - 20 months imprisonment, less 25% being 15 months. Seq 3 Remain in building with intent to commit an indictable offence - 2 years imprisonment, less 25%, being 18 months.

Clough Seq 2 Intimidate Katey Blacklock - 16 months imprisonment, less 25% being 12 months. Seq 3 Intimidate Matthew Hawkins - 16 months imprisonment, less 25% being 12 months. Seq 4 Remain in building with intent to commit an indictable offence - 20 months imprisonment, less 25% being 15 months. Seq 5 Larceny - a fine of $800, less 25% being a fine of $600.

Viliamu Seq 2 Intimidate Katey Blacklock - 20 months imprisonment, less 25% being 15 months. Seq 3 Intimidate Matthew Hawkins - 20 months imprisonment, less 25% being 15 months. Seq 4 Remain in building with intent to commit an indictable offence - 2 years imprisonment, less 25% being 18 months Seq 5 Armed with intent to commit an indictable offence - 30 months imprisonment, less 25% being 22.5 months. This sentence will be rounded down to 22 months consistent with Rios v R [2012] NSWCCA 8 per Adamson J at [42] - [43].

How are the sentences to be served?

1. Having determined the length of each sentence, I must now consider how those sentences should be served. On 21 March 2017 I referred each offender for assessment as to their suitability to serve any sentence of imprisonment by way of an intensive correction order (ICO). All of them have been assessed as suitable for that option. Their suitability does not mean that such a sentence will or ought to be imposed. That much is clear from a consideration of s 67(5) of the Crimes (Sentencing Procedure) Act 1999, which envisages a situation where despite suitability such an order is not made. In that event, the section requires the court to indicate to the offender, and make a record of its reasons for declining to make such an order. The ordering of such an assessment and the fact that an offender is assessed as suitable does not result in the court being placed into some type of sentencing straight jacket. The court is still required to impose a sentence that has regard to all of the relevant objective and subjective factors and to all relevant sentencing principles.
2. An ICO is undoubtedly a substantial punishment, however it does reflect a significant degree of leniency as it does not involve the immediate incarceration of the offender: R v Pogson (2012) 82 NSWLR 60. Nevertheless such a sentence does operate to impose restrictions on an offender's freedom. Despite this it is important that the court continue to bear in mind what the Court of Criminal Appeal said in R v Cahill [2015] NSWCCA 53 at [114] per Johnson J: … it is important not to lose sight of the need for an appropriate and proportionate level of punishment, in the form of immediate incarceration, in cases of serious offending. The decision in R v Pogson should not be utilised to pass an entirely inappropriate sentence which sees an offender such as the Respondent, with his magnitude of offending, being dealt with by way of an ICO. Such an approach does not accord with the principle of reasonable proportionality between the offending conduct and sentence and the need for general deterrence with respect to sentencing substantial drug supply offenders.
3. While his Honour's remarks in R v Cahill relate to a case of drug supply they have equal resonance in a case such as this where principles of general deterrence loom large.
4. I have concluded in this matter that the sentences I have determined are to be served Hammond and Clough can be served by an ICO. This is appropriate particularly given their lesser (but still serious) level of involvement in the actual offending. I have come to a different conclusion in respect of Viliamu, and what follows are my reasons for declining to deal with his matter by way of an ICO. In my view, the significantly distinguishing and aggravating factor involving the use of a knife in the circumstances described in the Agreed Facts, coupled with his prior history of offending, do not permit such an outcome. If the court were to deal with him in a way that did not involve the imposition of a term of full time custody, then it would not reflect appropriately the need for general deterrence, the need to punish, the need for community protection, the need to make him accountable for his conduct, the need for denunciation, and very importantly, the need to recognise the harm done to the victims of his criminal conduct. To have Viliamu serve his sentence by way of an ICO would not achieve a reasonably proportionate outcome, notwithstanding the strong steps towards rehabilitation that he has taken since his arrest.
5. So far as all of the offenders are concerned, I am satisfied that the sentences imposed, all arising as they do out of the same course of conduct, can in the circumstances be served concurrently. The total sentence to be served by each of them will result in an appropriate outcome without the need for the sentences to be accumulated or partially accumulated.
6. Hammond's sentences will each be reduced by 15 days to reflect the time spent by him in custody prior to his release to bail. While it is always preferable to backdate any sentence, the fact that his sentence is to be served by way of an ICO precludes that course. Viliamu's sentence will be backdated by 2 days. Given that Clough was granted bail on the day following his arrest I do not propose to make any further adjustment to his sentences.
7. Having regard to my determination that Viliamu is to serve his sentence in full time custody, it is necessary for me to turn my attention to the question of whether the statutory ratio as to the period during which he is to remain in custody should be varied. It can only be varied if there are special circumstances, and there is evidence available to support such a finding being made: see R v Lulham [2016] NSWCCA 287, per Bathurst CJ at [7]. There the Chief Justice observed: In dealing with rehabilitation it seems to me a judge would be entitled to find special circumstances if there is evidence before him or her that demonstrates that the offender has prospects of rehabilitation and that these prospects would be assisted if a longer non parole period was allowed.
8. In this case, there is evidence available to which reference has been earlier made, which establishes that the offender has prospects of rehabilitation which would be advanced by a longer non parole period. This conclusion warrants a finding of special circumstances in his favour.

Orders

1. Hammond:
2. On each sequence he is convicted.
3. Re Seq 2 - He is sentenced to a term of imprisonment of 14 months and fifteen days commencing 28 April 2017 and expiring 12 July 2018. The sentence is to be served by way of an intensive correction order.
4. Re Seq 3 - He is sentenced to a term of imprisonment of 17 months and fifteen days commencing 28 April 2017 and expiring 12 October 2018. The sentence is to be served by way of an intensive correction order.
5. Clough: On each sequence he is convicted. Re Seq 2 and 3 - On each sequence he is sentenced to a term of imprisonment of 12 months commencing 28 April 2017 and expiring 27 April 2018. The sentences are to be served by way of intensive correction order. Re Seq 4 - He is sentenced to a term of imprisonment of 15 months commencing 28 April 2017 and expiring 27 July 2018. The sentence is to be served by way of an intensive correction order.
6. Re Seq 5 - He is fined the sum of $600.
7. Viliamu: On each sequence he is convicted. Re Seq 2 and 3 - He is sentenced to a term of imprisonment consisting of a non-parole period of 9 months and a total term of 15 months, both to date from 26 April 2017. He will be eligible for release subject to supervision on parole on 25 January 2018. Re Seq 4 - He is sentenced to a term of imprisonment consisting of a non-parole period of 12 months and a total term of 18 months both to date from 26 April 2017. He will be eligible for release subject to supervision on parole on 25 April 2018. Re Seq 5 - He is sentenced to a term of imprisonment consisting of a non-parole period of 14 months and a total term of 22 months both to date from 26 April 2017. He will be eligible for release subject to supervision on parole on 25 June 2018. Deputy Chief Magistrate C O'Brien Downing Centre Local Court 28 April 2017

Note: an appeal against sentence by Mr Viliamu was dismissed by the District Court on 29 June 2017.

Amendments 21 November 2017 - Amend the quote at [43] from R v Lulham [2016] NSWCCA 287, per Bathurst CJ at [7] to read as follows:

"However, in dealing with rehabilitation, it seems to me a judge would be entitled to find special circumstances if there is evidence before him or her that demonstrates that the offender has prospects of rehabilitation and that these prospects would be assisted if a longer non-parole period was allowed." 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: 21 November 2017