R v Ackling-Nicholson

Category: Sentence

Parties: Rex (Crown)
Jake Barry Bob Ackling-Nicholson

Representation: Counsel:
Mr Hart (for the Offender)
Solicitors:
Ms Sigalla (for the Crown)
Mr Clowry (for the Offender)

File Number(s): 2023/00316213

Publication restriction: Sensitive information was redacted from the remarks as published. The parties have been provided with the unredacted version of the remarks.

JUDGMENT

INTRODUCTION

1. The offender, Jake Barry Bob Ackling-Nicholson, appears today to be sentenced for a range of offences, committed during a period of two months in September and October 2023. The offending took place over two incidents, the first occurring between 4 and 9 September 2023, and the second occurring on 5 October 2023. The offender was arrested and charged with the offences before the Court on 5 October 2023. He has been in custody since this date, having spent a total of 660 days in custody for this offending. The offender is entitled to a 25% discount on sentence for his early guilty plea.

CHARGES

2. The offences, maximum penalties, standard non-parole periods and findings as to the objective seriousness for reasons given in these remarks are set out in the Table which is attached to and forms part of these remarks. The Table also sets out the charges placed on the Form 1 documents as they attach to the primary charges for sentence.

MAXIMUM PENALTIES

3. The maximum penalties and the standard non-parole periods are guideposts for sentencing Judges as to the seriousness with which the community, through parliament, views offending of this type.

4. In Markarian v The Queen (2005) 228 CLR 357 at [30]-[31], Gleeson CJ, Gummow, Hayne and Callinan JJ said:

"Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance …

It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick."

STANDARD NON-PAROLE PERIOD

5. The standard non-parole period is a matter to be taken into account as part of the determination of sentence. The legislation in Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA) specifies that the standard non-parole period applies to an offence found within the middle of the range of objective seriousness for such an offence, taking into account only objective factors, and without bringing to account any matters that are unique to the offender or the class of offenders.

6. Ultimately though, the standard non-parole period is but a factor to be taken into account in the sentencing exercise, together with the objective and subjective matters. This process of instinctive synthesis, as described by McHugh J in Markarian v The Queen [2005] HCA 25 at [51], mandates that a sentencing judge:

“identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case”.

7. Indeed, in a single judgment, all Justices of the High Court in Muldrock v The Queen (2011) 244 CLR 120 held at [17]:

“It remained, and remains, essential to recognise, however, that the fixing of a non-parole period is but one part of the larger task of passing an appropriate sentence upon the particular offender. Fixing the appropriate non-parole period is not to be treated as if it were the necessary starting point or the only important end-point in framing a sentence to which Div 1A applies”.

8. Thus, even though an offence might be found to be within the middle of the range of objective seriousness, it does not follow that the standard non-parole period will apply, nor that there shall be a percentage calculation performed where the offence might be found lower on the scale of seriousness.

9. The process is not arithmetical but more intuitive, however the law requires that I determine where on the scale of objective seriousness the offence does fall. The precise positioning of the offence along the scale is a matter of judgment and is not easy to identify. While I am not compelled to impose a standard non-parole period, s 54B(3) of the CSP**A requires a sentencing judge to make a record of reasons for setting a non-parole period that departs from the standard non-parole period, as well as identifying the factors taken into account when doing so.

10. In this matter I do not intend to impose the standard non-parole period, as to do so would result in a sentence which would, in my view, be unduly harsh.

FORM 1 OFFENCES

11. There are four Form 1 documents signed by the offender, carrying a total of 8 additional offences.

12. By signing the certificates to those documents, I confirm that I have taken those charges into account in sentencing for the principal charges to which they attach. Charges on Form 1 documents are to be taken into account with a view to increasing the penalty that would otherwise be appropriate for the principal charges.

13. I intend to apply the standard guideline judgment for Form 1 offences and have regard to the relevant authorities and principles set out by her Honour Judge Huggett in Tukuafu v R [2024] NSWCCA 84 at [86]-[131]. Offences contained on Form 1 documents are considered by the Court with a view of increasing the ultimate penalty imposed for the principal offences, for one or more of the following purposes:

14. a further offence may increase the weight to be afforded to personal (or specific) deterrence and retribution;

15. a further offence may provide the context of the offending for which an offender is to be sentenced;

16. a further offence may demonstrate that a principal offence was not isolated or aberrant but is representative of an ongoing course of conduct;

17. a further offence may inform an offender’s moral culpability;

18. a further offence may establish that an offender is not a person of good character;

19. a further offence may establish an offender’s motive, state of mind, and/or intention at the time the principal offence is committed.

20. Consistent with Huggett J’s judgment in Tukuafu (at [130]-[131]), where further offences are relatively minor, it may add little – or nothing – to the otherwise appropriate sentence imposed when sentencing for the principal offence. However, where the criminality of that further offence is significant or substantial, subject to the constraints of totality, proportionality, and the maximum statutory penalties that apply for the principal, its effect on the ultimate sentence imposed may be “substantial”. This is not because that further offence increases the objective seriousness of the principal offence, but rather because the appropriate sentence is determined by reference to several matters – including whether the further offending listed on the Form 1 bears upon any of the purposes outlined above.

AGREED FACTS

Background to offending

15. The offender was born in June 2002. At the time of the offences, the offender was 21 years old. He resided in Penshurst.

16. The Penshurst premises was a detached, residential dwelling with three bedrooms, one bathroom, a rear yard, a detached garage, and an underground level beneath the house. The offender leased and resided at the Penshurst premises with his co-tenant.

4 September 2023

17. The following facts relate to Count 12. At 12:20pm on 4 September 2024, the offender was captured on CCTV-footage arriving outside Kennards Hire Burwood located at Lucas Road, Burwood NSW 2134. The offender arrived in a white Toyota Hilux bearing NSW registration starting with BZ. He was seated in the passenger seat and the vehicle was driven by Dominic Emmanuelidis.

18. By 12:35pm, the offender and Ms Emmanuelidis had exited the Toyota Hilux and entered Kennards Hire Burwood. Mr Emmanuelidis approached the front Counter and completed a rental hire agreement for a white Toyota Hilux bearing NSW registration starting with CQ and a Kookaburra silver-box trailer bearing NSW registration starting with TD. The offender and Mr Emmanuelidis exited the storefront and returned outside.

19. At 12:45pm, Mr Emmanuelidis was depicted driving the original Toyota Hilux out of the carpark and away from the location. Shortly thereafter, the offender entered the driver’s side-door of the rented Toyota Hilux. The offender drove the rented Toyota Hilux, which had the trailer attached and towed at the back, out of the Kennards Hire carpark towards Parramatta Road, Burwood.

20. At that time, the offender was subject to a Court-ordered disqualification period of 6 months. The offender was aware of that disqualification period, and he knew that he was not authorised to drive on NSW roads.

9 September 2023

21. The following facts relate to Counts 1 and 2. On 9 September 2023, the offender – and co-offender, Bilal Bou Melhem – were captured on CCTV-footage arriving at the Olds Park construction site, located at Forest Road, Penshurst. The offender was seated in the passenger seat and driven by the co-offender in the rented Toyota Hilux with the trailer attached.

22. At 5:30pm, the offender and co-offender entered the boundary of the Olds Park construction site by climbing underneath the temporary fencing on the western side of the park. The offender and co-offender approached the red DiggerKing23 excavator, and the offender entered the driver-seat of the vehicle. The offender – with the assistance of the co-offender – managed to ignite the excavator and commenced driving the DiggerKing23 by about 6:01pm (count 1).

23. Shortly after 6:24pm, the co-offender had driven the excavator away from the construction site and loaded the DiggerKing23 onto the trailer. Before leaving the site, the offender picked up a black toolbox – containing DeWalt power tools valued at $4,500 – from the ground of Olds Park (count 2).

24. The offender took the toolbox and power tools with him as he returned to the passenger side of the rented Toyota Hilux. The co-offender then drove the rented Toyota Hilux and trailer, carrying the DiggerKing23, back to the offender’s Penshurst premises.

25. The excavator and DeWalt power tools belonged to C-Sustainable Pty Ltd and SPC Australia. The offender and co-offender did not have permission to take the vehicle or remove the property away from its original location at the Olds Park construction site.

11 September 2023

26. At about 6:40am on 11 September 2023, a sub-contractor for C-Sustainable Pty Ltd, Joseph Furey, attended the Olds Park construction site, where he noticed the red DiggerKing23 excavator and De-Walt power-tools were missing. Joseph Furey reported the matter to Police, who attended the scene shortly after.

27. Police commenced their investigation, which eventually led to the identification and detection of the offender and co-offender, for the offences arising on 9 September 2023. The offender was initially charged with the Counts 1 and 2 offences on 5 October 2023.

5 October 2023

Search warrant

28. At 11:30am on 5 October 2023, police drove past the offender’s Penshurst premises and noticed the red DiggerKing23 excavator parked outside. Police applied for an authorised search warrant, which was granted by Sutherland Local Court and executed later that day.

29. At about 5:53pm, Special Tactical Officers and police gained entry into the front-door of the Penshurst property in accordance with the terms of the search warrant. At the time, the offender, his co-tenant, and another uncharged person were located inside the property.

Arrest of the offender

30. The offender was placed under arrest and cautioned with respect to the Counts 1, 2 and 12 offences. Police located the red DiggerKing23 excavator in the backyard of the Penshurst premises, which was recovered by Joseph Furey that same evening. Police also identified some – but not all – of the missing DeWalt power tools in a pink bucket underneath the offender’s house.

31. Between 6:06pm and 8:20pm, during the execution of the search warrant, police located and seized several further items that were found to be in the offender’s possession and later the subject of additional criminal charges. The offender acknowledges his guilt in relation to each of those items and agrees that they were found to have been in his exclusive possession on 5 October 2023:

(a) Relating to Count 13, at 6:16pm, a large bag of green and blue pills that was found to be 280.48 grams of 3,4-methylenedioxy-methlamphetamine (MDMA) was located in the backyard of the Penshurst property. Police noticed that the bag of MDMA was thrown out of a window from inside the property upon their arrival. (b) Relating to Count 17, at 6:16pm, next to the bag of MDMA, police located a black box with a red ‘Delinger’ inscription on it. Inside that box was ammunition – as defined under section 4(1) of the Firearms Act 1996 (NSW) – namely, 30 x .22 long rifle calibre cartridges and 6 x 12-gauge shotgun cartridges. Police also located 3 x .308 Winchester calibre fired cartridge cases, which were found to have contained ridge details consistent with the fingerprints of the offenders. (c) Relating to Count 3 (Form 1 offence), at 6:31pm, police located a Chinese manufactured spring-operated repeating pump-action gel ball air gun – a ‘firearm’ as defined under s 4(1) of the Firearms Act 1996 (NSW) – on the floor of the co-tenant’s bedroom. The offender was cautioned in relation to the gel ball air gun. The offender told police that the gun is his, and that his little brother plays with it when he comes over. (d) Relating to Count 11, at 6:45pm, police located a black flick-knife – a prohibited weapon as defined under the Weapons Pro**hibition Act 1998 (NSW) – on the coffee table in the lounge room. At the time, the offender did not hold a permit for the flick knife, nor was he authorised by any means to have this flick knife in his possession. (e) Relating to Count 15 (Form 1 offence), at 7:03pm, police located 13.59 grams of methylamphetamine in total; separated and contained across two large mason glasses in the back of the spare bedroom. The offenders’ fingerprints were positively identified on both jars. (f) At 7:05pm, police were directed to the location of his North-Face branded bum-bag. He was wearing this bag during the commission of the Counts 1 and 2 offences on 9 September 2023. Relating to Count 16 (Form 1 offence), police searched the contents of the bum-bag and located a purple ‘Eclipse’ mint container, black disposable gloves, a black balaclava, the offender’s wallet, and several identification cards in the name of the offender. Police found a further eight resealable plastic bags contained 3.30 grams of cocaine, in total, in the mint container. (g) Relating to Count 14 (Form 1 offence), at 7:07pm, police located another clear box in the back corner of the spare bedroom, which contained six resealable plastic bags, containing a total of 176.1 grams of cannabis leaf. (h) Between 7:46pm to 8:12pm, police searched underneath the house of the Penshurst premises and located the following firearms and pistols in the offender’s possession:

(i) Relating to Count 4, a gas operated gel ball air pistol (Exhibit X0004577108). The pistol was located inside a white cylinder situated on a brick ledge underneath the house. It was ballistically examined and confirmed to be a ‘pistol’ as defined under section 4(1) of the Firearms Act 1996 (NSW). (ii) Relating to Count 5, a 12-gauge, privately made slam-fire shotgun (Exhibit X00045777102). The shotgun was found in a deep brick enclave underneath the house. A DNA trace swab was conducted on both sides of the grip and returned a positive identification match with the offender. It was ballistically examined and confirmed to be a ‘prohibited firearm’ as defined under s 4(1) and Item 14, Schedule 1 of the Firearms Act 1996 (NSW). (iii) Relating to Count 6, a gel ball air pistol (Exhibit X0004577097). The pistol was located on a brick ledge underneath the house. It was ballistically examined and confirmed to be a ‘pistol’ as defined under section 4(1) of the Firearms Act 1996 (NSW). (iv) Relating to Count 7 (Form 1 offence), an imitation of an antique pepper-box percussion revolver (Exhibit X0004577106). The revolver was located inside the white cylinder with the gel ball air pistol (count 4), underneath the house. A DNA trace swab was conducted on both sides of the grip and returned a mixed DNA-profile, and the offender could not be excluded as a contributor. It was ballistically examined and confirmed to be an ‘imitation firearm’ and ‘pistol’ as defined under sections 4D(3) and 4D(2)(a) of the Firearms Act 1996 (NSW). (v) Relating to Count 8 (Form 1 offence), a revolving chamber spring operated air pistol (Exhibit X0004577105). The pistol was located in the same white cylinder as the pistols identified at Count 4 and Count 6. It was ballistically examined and confirmed to be a ‘pistol’ as defined under section 4(1) of the Firearms Act 1996 (NSW). (vi) Relating to Count 9 (Form 1 offence), a .303 British calibre Australian manufactured bolt action repeating rifle (Exhibit X0005321508). The rifle was located in a secondary white cylinder situated in a brick-enclave under the house. A DNA trace swab was conducted on the trigger area of the rifle and returned a mixed DNA profile, and the offender’s DNA could not be excluded as a contributor. It was ballistically examined and confirmed to be a ‘firearm’ as defined under sections 4(1), 4(2) and 152 of the Firearms Act 1996 (NSW). (vii) Relating to Count 10 (Form 1 offence), a .22 shot long rifle calibre Rossi repeating (pump-action) rifle (Exhibit X0004531653). The rifle was located in the second white cylinder, alongside the .303 British calibre rifle (count 9 – Form 1). It was ballistically examined and confirmed to be a ‘firearm’ and a ‘shortened’ firearm as defined under sections 4(1), 4(2) and 152 of the Firearms Act 1996 (NSW).

(i) At the time of the above offences, the offender was not the holder of any firearms licence or permits in NSW and was not authorised to have any firearms, pistols, imitation firearms, or ammunition in his possession. (j) Relating to Count 18, at 8:02pm, police identified a black and orange KTM Duke motorcycle with QLD registration starting with 123, next to the clothesline in the backyard of the Penshurst premises. The registered owner of the KTM Duke motorcycle was Prashant Ghimire, who reported the motorcycle as missing from his apartment on 20 June 2023.

32. Consistent with Count 13 (including Form 1 offence Counts 14, 15 and 16), police also located several items of drug paraphernalia inside the Penshurst property which the offender identified as his. This included multiple resealable plastic bags, a heat sealer, and five mobile phones. The offender’s mobile phone was later downloaded by police and depicted the offender engaging in conversations with others for drug supply.

SENTENCING FOR FIREARMS OFFENCES GENERALLY

33. When sentencing an offender for firearm offences, there are a range of general principles that I must consider.

34. The Court must seek to implement the overarching statutory principles and objectives as enshrined by section 3 of the Firearms Act 1996 (NSW), upon which Courts have repeatedly stressed the importance of giving full weight to the intent of the legislature. It was recognised by Latham J in R v Krstic [2005] NSWCCA 391 at [14], in the context of a prohibited pistol, that:

“the policy of the legislature evinced by the enactment of the offence and a maximum penalty of 14 years is to deter and punish possession of firearms;”

35. Further, part of my assessment of the seriousness of the offending according to Howie J in R v Tolley [2004] NSWCCA 165 at [53], and by reference to section 3 of the Firearms Act 1996 (NSW), is to:

“control the possession and use of firearms in the community by honest citizens, and not simply to disarm the criminally minded.”

36. The observations of Wilson J in Chan**dab v R [2001] NSWCCA 186 at [81] are also relevant, that:

“Firearms in the hands of those not permitted to possess them, and even more so in the hands of the criminally minded who may be the subject of a prohibition order, represent a clear and profound threat to the safety of the community. No doubt for this reason, and despite the relatively low standard non-parole period that applies to such offences, the maximum penalty proscribed for offences of this nature reflects the seriousness with which the Parliament and the community view firearms offences. The rule of law and the safety of others equally are imperilled by the unauthorised possession of firearms, and such offences must be treated as serious contraventions of the criminal law - to punish offenders, to deter others, and to protect the community.”

SENTENCING FOR DRUG-SUPPLY OFFENCES GENERALLY

37. I adopt the general principles espoused in Parente v R [2017] NSWCCA 284 at [108]-[112].

38. It is necessary that I have regard to the purposes of sentencing listed in section 3A of the CSPA, specifically, pertaining to deterrence (section 3A(b)) and community protection (section 3A(c)).

39. It must also be considered that a consistent message of deterrence Is required by the sentencing Court, given that one of the inherent characteristics underlying activity associated with illicit drug supply involves the steps taken by the participant to ensure it is carried out covertly. The result of this is that significant resources are devoted by law enforcement agencies for the detection and successful prosecution of such offences. Likewise, and by extension, having regard to the social impact of drug use, particularly as an underlying cause of other criminal offending, protection of the community will usually be of significance as well.

40. I must also remain mindful of the maximum penalty and any standard non-parole periods which apply in this case, noting that while such factors are legislative guideposts (per Muldrock v The Queen (2011) 244 CLR 120), for drug offences, they are set at a high level.

41. Finally, as recognised by Simpson J in Robertson v R [2017] NSWCCA 205 at [50]:

"it may be accepted that examination and analysis of sentencing practices establishes that, where the facts of an offence demonstrate drug dealing "to a substantial degree", a sentence of imprisonment will ordinarily be imposed. Moreover, recognition of the serious social implications of drug dealing (reflected, if in nothing else, in the maximum prescribed sentences) suggests that, in the ordinary case, a sentence other than imprisonment will fail to meet sentencing objectives."

OBJECTIVE SERIOUSNESS

42. I am assisted by the submissions from both the Crown and the offender (MFI 2 and 3 respectively) in assessing the objective seriousness of the offences. In accordance with R v Whyte (2002) 55 NSWLR 252, I must form a preliminary view on the objective gravity of each offence separately and without reference to the subjective case of the offender and, per Adamson J at [36] of McDowall v R [2019] NSWCCA 29, identify “fully the facts, matters and circumstances” which bear upon the sentence imposed. Per Yehia J in DH v R [2022] NSWCCA 200 at [59], for all offences, including those attracting standard non-parole periods, (here, Counts 4, 5, 6, 11 and 13), I need not assess where each offence falls on a notional scale of seriousness. Although not necessary, I will indicate where on the notional range each offence falls to ensure clarity.

The first incident – 4 and 9 September 2023

43. For Count 1, steal motor vehicle in breach of s 154F of the Crimes Act 1900 (NSW), I consider that there was an element of planning involved in the offending, namely that the offender and co-offender hired a car and a trailer to assist them in the commission of the offence. I acknowledge that the offender’s role in the transportation of the excavator was lesser than that of his co-offender, who drove the excavator onto the trailer, and the trailer back to the offender’s house. I find the objective seriousness for Count 1 to fall just below the mid-range.

44. For Count 2, larceny, I note that the offending was opportunistic and impulsive with limited sophistication or prior planning involved. I also note that a number of the power tools stolen were later recovered, and any unrecovered property in relation to this offending would have been of a nominal commercial value. I find the objective seriousness to fall within the low range.

45. For Count 12, drive motor vehicle while disqualified, I note that the facts are silent as to the nature and manner of the offender’s driving at the time, the duration of his trip, and the conditions of the road. The facts demonstrate only that he operated a motor vehicle while disqualified. I find the objective seriousness to fall within the low range.

The second incident – 5 October 2023

46. For Counts 4 and 6, both possess unauthorised pistol, there is no evidence of use of the firearms. The firearms were located on a brick ledge underneath the house; one inside a white cylinder (Count 4), which indicates an attempt to conceal them and an awareness of illegality. The firearm subject to the charge under Count 4 is a gas operated gel ball air pistol which does not fire live ammunition. Similarly, the firearm subject to the charge under Count 6 is a gel ball air pistol which does not fire live ammunition.

47. In the circumstances which exist here, the s 5 threshold was not crossed. I find the objective seriousness for Counts 4 and 6 to fall within the low to mid-range. I note in relation to Count 3, which attaches to Count 4 via a Form 1, that the offender told police that his little brother plays with the firearm when he comes over. Plainly, allowing a child to handle a firearm is irresponsible and conduct deserving of sanction.

48. For Count 5, possess prohibited firearm, I consider that there is no evidence of use of the firearm, and the firearm was not loaded. The firearm is however a 12 gauge slam fire shotgun, capable of firing live ammunition. The firearm was not kept in a gun safe, but was instead, located in a deep brick enclave underneath the offender’s house, which does indicate an attempt to conceal it and awareness of illegality. I find the objective seriousness for Count 5 to fall within in the mid-range.

49. For Count 11, possess a prohibited weapon without a permit, the facts are largely silent as to the use or details of the knife in question, other than to say that it was a flick-knife. I recognise that leaving the knife in a communal area of a shared house posed a general risk to public safety. I find the objective seriousness of this offence to fall within the low range.

50. For Count 13 (with Counts 14, 15 and 16 attaching on a Form 1 document), supply prohibited drugs of larger than or equal to a commercial quantity, I consider that there was actual supply of drugs that took place, per the offender’s evidence. The offender was using drugs at the time of the offending and was funding his drug addiction through supply. I also note that the bag of drugs was thrown from the window of the house upon the arrival of police, indicating a general awareness of culpability. I do find that the facts are sparse in relation to the nature and duration of the offender’s role and engagement in the possible supply enterprise, and accordingly, find his offending to fall within the mid-range of objective seriousness.

51. For Count 17, a summary offence, I note that the facts are limited in relation to the offending. I find the objective seriousness to be low.

52. For Count 18, I note that the facts are, again, limited, and the motorcycle is presumed to have been returned to its rightful owner. I find the objective seriousness of this offence to be low.

s 5 THRESHOLD

53. Section 5(1) of the Crimes (Sentencing Procedure) Act requires me not to sentence an offender to imprisonment, unless I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

54. In the current case, the objective seriousness of some of the offending leaves me no choice but to sentence the offender to a term of imprisonment. In Sarhene v R [2022] NSWCCA 79, Hamill J said at [38]:

“While there are crimes so grave that there is no real alternative but to impose a sentence of imprisonment, the decision under s 5 should include considerations of all matters relevant to sentence, not only the objective facts of the crime and the requirement for general deterrence.”

55. Considering all of the matters relevant to sentence, I find that the section 5 threshold has been crossed in relation to Counts 1, 5 and 13. Indeed, the offender conceded that the section 5 threshold has been crossed in relation to those Counts. For these Counts, no sentence other than imprisonment is appropriate.

56. The Crown made submissions that the section 5 threshold had also been crossed in relation to Counts 4, 6 and 11. Considering all of the factors relevant to sentencing, including the subjective case of the offender, I reject these submissions and do not find the threshold crossed in relation to these Counts.

SUBJECTIVE CASE

Sentencing Assessment Report

57. Amongst the material available for me to consider is a Sentencing Assessment Report provided by Community Corrections, dated 8 April 2025, marked Exhibit B. The offender expressed shame, embarrassment and disappointment as a result of his drug use and offending. He has been diagnosed with ADHD and wishes to engage with a psychologist to address underlying grief and mental health related issues. The offender was assessed as showing insight into his offending, and a willingness to engage in intervention to prevent further offending. He has not previously been subject to supervision and was assessed to be at a medium risk of reoffending.

Psychological Report

58. A psychological report was provided by Forensic Psychologist Ms Amina Ahmed, dated 12 February 2025, marked Exhibit 1. The report speaks of the offender’s unresolved childhood trauma, ADHD, and persistent depressive symptoms. The report provides extremely useful insight into the offender’s subjective case.

59. The offender had a difficult childhood, particularly following the separation of his parents when he was two years old. [Redacted]. In his early teenage years, the offender began living with his grandmother, Mary in Sydney. She became his primary caregiver and provider of emotional support, before she was diagnosed with pancreatic cancer and passed away in 2023. Her passing had a profound emotional impact on the offender and resulted in a significant increase in his substance use.

60. The offender told the psychologist, Ms Ahmed, that when on drugs he “[didn’t] care about anything” and that there was “nothing good about [his] life” (page 6). He has a history of drug use commencing when he was aged 14, and has used cannabis from this age, alongside ice and ecstasy, following the death of his grandmother.

61. The offender’s criminal history aligns with the period of increased drug abuse, following the death of his grandmother. Largely, his criminal offending was engaged in for the purpose of funding his drug addiction. He admitted to allowing others to store illegal items at his house, in return for money to buy drugs. He now recognises the recklessness of his actions.

62. Notably and positively, the offender has abstained from taking drugs since the date of his incarceration, being 5 October 2023.

63. The offender was diagnosed with PTSD, ADHD, Persistent Depressive Disorder and Substance Use Disorder. Contributing factors to his offending include his unresolved childhood trauma, bereavement and emotional dysregulation, substance abuse, and negative peer influence. Ms Ahmed noted a number of protective factors that reduce his risk of reoffending, including:

64. remorse and insight into his offending;

65. sustained sobriety and commitment to abstinence;

66. his strong relationship with his partner, Taylor;

67. his ability to obtain stable employment with his mother’s firewood company, and structured routine;

68. stable accommodation and a supportive living environment, with his partner, Taylor;

69. commitment to therapy and mental health treatment; and,

70. family reconnection and prosocial intentions.

71. Ms Ahmed, in her report, also made a number of treatment recommendations for the offender, to ensure continued rehabilitation and prevent relapse.

72. She considered that the mental health of the offender contributed to the offending, stating that his offending behaviour appears to be directly linked to:

73. unresolved childhood trauma;

74. bereavement and emotional dysregulation;

75. substance abuse;

76. negative peer influences.

77. Ms Ahmed stated that further incarceration will be unlikely to serve a rehabilitative purpose. The offender has spent a significant period of time in prison already, and the report recommends his release into the community, with structured mental health treatment and post release conditions in place, to support his reintegration. Ms Ahmed finds the offender’s risk of reoffending to be low.

Letter from the Offender’s Mother

67. The offender’s mother, Leanne Fitzgerald, provided a letter to assist in my Sentencing of the offender, dated 8 June 2025. It is marked Exhibit 2. The letter confirms the offender’s diagnosis with ADHD and ODD. It emphasises the closeness of the offender and his grandmother, and the significant impact on the offender’s life that her deterioration and subsequent death, had. The letter speaks of the offender’s life spiralling out of control as a result.

68. The offender’s mother shares that the offender is remorseful and feels guilty for his actions. The offender’s family is proud of him for abstaining from alcohol, and restoring connections with old friends, from prison, who have a positive impact upon him.

69. The offender’s family is supportive of him and miss him terribly. They wish to bring him home so that they can support him to get his life back on track. I note that during the sentence hearing, the offender had considerable support present in the Court room.

Evidence of the Offender

70. The offender gave evidence at the sentence hearing on 12 June 2025. His evidence was consistent with the subjective material provided to the Court. The offender told the Court of his drug addiction, and the significant impact it had on his mindset and wellbeing. He told the Court that at the time of offending, his addiction and lifestyle was being supported by supplying drugs.

71. The offender told the court that prior to his offending, he was undertaking an apprenticeship as a panel beater and almost completed it. He intends to finish his education in this area, upon being released from custody. Panel beating is a trade with demand around Sydney, and the offender intends to eventually obtain employment in this area.

72. The offender told the Court that he is embarrassed about his offending, and that the person he was at the time “wasn’t the real me.” [T11.41] Of his firearm offending, he told the court that he wasn’t in the right state of mind when he allowed persons to store firearms at his house, and that he didn’t care at the time, as he was only concerned with supporting his drug addiction. He told the court that he never used the firearms, except for the toy rifle that he’d allow his younger brother to play with at times.

73. The offender told the Court that he is willing to take part in the treatments recommended to him by the psychologist, Ms Ahmed. He is also happy to comply with the recommendations of Community Corrections, and conditions pertaining to abstinence, rehabilitation, and supervision. He told the Court he has not used drugs since his incarceration.

74. The offender expressed remorse for his offending, which I accept. The offender has been exposed to violence whilst in prison and has missed out on a number of significant milestones, including the birth of his nephew. He has shown significant insight into his offending and accepts that his actions were wrong. He has expressed a desire to rehabilitate himself and resume his life in the community. I accept his evidence and find him to be an impressive witness.

FINDINGS REGARDING THE SUBJECTIVE CASE

The offender’s drug addiction

75. The Offender’s history of addiction must be given consideration in the exercise of the sentencing discretion, as to both the length of the sentence itself, and in determining the extent to which the Offender would benefit from serving all or part of the sentence in the community.

76. Generally speaking, drug addiction is not a mitigating factor, as clarified in the decision of R v Valentini (1989) 46 ACR 23 at [25], as well as the remarks of Spigelman CJ in R v Henry & Ors [1999] NSWCCA 111 at [206].

77. I am cognisant of the remarks of Gleeson CJ in R v Engert (1995) 84 A Crim R 67, most significantly in his observation, at [68], that it is erroneous in principle to approach sentencing:

…as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.

78. In the matter of Henry, Simpson J observed at [336] that in some cases drug addiction may have its origins in arrogance, in an antipathetical attitude to the laws of society, or in weakness of character. She also noted, however, that addiction may have originated in deeply seated sociocultural or socioeconomic factors such as poverty, social deprivation, sexual assault, exploitation or unavoidable exposure from a young age. In the latter examples, her Honour noted that “drug addiction is not always the disease; it is, as often as not, a symptom of social disease”.

79. At [344] her Honour further remarked that in circumstances such as these, it may be appropriate for rehabilitative aspects of sentencing to assume a more significant role than might otherwise be the case, to the extent that rehabilitation may indeed outweigh other sentencing factors. However, she also cautioned at [344]:

In order for those circumstances to provide a reason for reduction of sentence, there would need to be strong evidence of real progress towards actual rehabilitation. I would not wish to be understood to be saying other than that leniency of the kind to which I refer depends heavily upon demonstrated (as distinct from theoretical) rehabilitative prospects.

80. In Henry, Wood CJ at CL remarked at [272] that the origin or extent of a drug addiction, or any attempts to overcome it, may be relevant in the sentencing process, particularly in relation to subjective considerations, where an addiction might:

(a) impact upon the prospects of recidivism; (b) impact upon the prospects of rehabilitation; or (c) suggest that the addiction was attributable to some other event for which the offender was not primarily responsible thereby removing personal choice.

81. These such considerations may all contribute to a finding that a particular offender may be positioned at “a crossroads”, which may justify special consideration in determining an appropriate sentence: R v Osenkowski (1982) 5 A Crim R 394. I accept that this Offender is at a crossroads.

82. I accept that the Offender commenced his drug addiction at an age where he was not of rational choice and was influenced by factors including his difficult upbringing and the death of his grandmother. I intend to give appropriate weight to his addiction in arriving at an appropriate sentence. It is but a factor to which regard must be had in the court’s performance of instinctive synthesis. In doing so I am mindful that self-induced intoxication is not a mitigating factor.

83. Further, I find that the Offender has taken prominent and visible steps towards rehabilitating himself, and therefore intend to make a positive finding which accords with the principles contemplated by Simpson J in Henry.

The offender’s mental health impairment

84. I find that the offender suffers from the mental health conditions outlined in the report of Forensic Psychologist, Ms Ahmed, that I referred to earlier. [Redacted].

85. In the case of DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, McClellan CJ at [177] said the fact that an offender has “a mental illness, intellectual handicap or other mental problems” may be considered at sentencing. Principles which his Honour summarised at [177], and which are also relevant to this Offender, are:

“Where the 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”;

…

“It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would 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”…

86. In the case of Luque v R [2017] NSWCCA 226, Hamill J noted that the application of De La Rosa is not burdened by a lack of causation between the offending and the mental health of the offender. At [114], his Honour said:

“…a sentencing Judge dealing with evidence of an offender’s mental condition or intellectual impairment ought not to approach the task in an unduly technical or restrictive way. The issue to be determined is not the same as deciding the issue of causation in a civil case. The issue is whether the fact of the disorder mitigates the punishment that ought to be visited upon the offender.”

87. His Honour continues at [114]:

“the impact of an offender’s mental condition is not conditional upon any link (causative or otherwise) between the condition and the offending. For example, the condition may mean that the offender is not an appropriate vehicle for a sentence containing a large component of general (or specific) deterrence. Further, incarceration may be more onerous as a result of an offender’s difficulties. Those matters do not require the judge to find any link or connection between the condition and the commission of the crimes.”

88. I note more recently in the matter of RG v R [2025] NSWCCA 36, Yehia J at [74]

“The test applied when considering the impact of mental health issues upon an applicant, derives from the well-known principles enunciated in De La Rosa.”

89. Her Honour then refers to [177] of De La Rosa, before continuing at [76]:

“It is often the case that a history of sexual abuse will result in the onset of mental health issues such as, for example, post-traumatic stress disorder. The interplay between these features is sometimes difficult to disentangle. It is worth noting, however, that the “material contribution” test applies in circumstances where an offender is suffering from a mental illness, intellectual handicap or other mental health conditions”.

[77] “The use of terminology such as “causal link” or “causal nexus” is prone to unnecessarily and unduly elevate the threshold that an offender must meet before the evidence of childhood sexual abuse can be taken into account to reduce moral culpability. In my view, a sentencing judge should not become preoccupied with the issue of “causation” as a technical matter.”

90. Her Honour then goes on to refer to Hamill J in Luque at [114], where his Honour stated that a sentencing judge ought not adopt “an unduly technical or restrictive” approach.

91. I am satisfied that the mental health of the offender connects to the offences in question. Plainly, the offender was driven by his substance use disorder to engage in the offending behaviour. A primary motivating factor of the offending was to support and finance his drug addiction in light of his substance use disorder, however I note that the poor decision of individuals to take drugs cannot be a mitigating factor on sentencing.

92. The offender’s depressive disorder exacerbated by bereavement following the death of his grandmother, led him into drug addiction and thereby offending. I also consider the offender’s diagnosis of ADHD with persistent symptoms affecting impulse control, emotional regulation and executive functioning.

93. Accordingly, I find that in light of his mental health issues, the offender’s moral culpability is reduced. I am also satisfied that the offender’s mental health makes him a less appropriate vehicle for general deterrence, and that a custodial sentence may weigh more heavily on him.

Youth of the offender

94. The offender was 21 years of age at the time of the offending. According to R v Hearne [2001] NSWCCA 37 at [27], an offender’s youth is a recognised mitigating factor and, generally, the younger the offender, the greater the weight it should be given. In the case of IE v R [2008] NSWCCA 70, Latham J at [19]–[21] finds that an offender’s youth does not generally impact upon the assessment of the offence’s objective seriousness but may impact upon the assessment of the offender’s moral culpability.

95. In BP v R [2010] NSWCCA 159, Hodgson J observed at [5]:

“emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties”

96. In JM v R [2015] NSWSC 978, in the context of a decision in relation to bail pending trial, with respect to a 21 year old, Garling J observed:

[119]… “For anyone to be held in custody for such a period is undesirable. For a person of a relatively young age, the adverse effects of such a length of time in custody are magnified. The applicant’s age means that he is still at a stage of intellectual, academic and vocational formation. It is well known that emerging scientific research, largely from the availability of longitudinal neuro-imaging studies, suggests that young males may not reach full intellectual maturity until their early to mid-twenties.”

97. The offender was 21 years of age at the time of offending, and accordingly, should be entitled to a finding that his youth may have impacted both his decision to partake in drug taking, and the behaviour which composes these offences.

s 21A MITIGATING FACTORS

98. Assisted by the submissions on behalf of the offender, I find a number of s 21A Crimes (Sentencing Procedure) Act 1999 (NSW) mitigating factors apply.

99. The offender is of relatively good character, his prospects of rehabilitation are positive, his risk of reoffending is low, he entered a plea of guilty to the offences at his earliest circumstance, and he has shown genuine remorse for the offending.

SPECIAL CIRCUMSTANCES

100. Sections 44(2) and 44(2B) of the CSP Act provide that the non-parole period for either a single sentence or an aggregate sentence must not fall below three quarters of the term of sentence unless there is a finding of special circumstances and, in the event such a finding is made, reasons for doing so are recorded.

101. A finding of special circumstances is a discretionary finding of fact (R v El-Hayek [2004] NSWCCA 25 at [103]). The full range of subjective considerations is capable of warranting a finding of special circumstances (R v Simpson (2001) 53 NSWLR 704 at [46]). It will be comparatively rare for an issue to be incapable, as a matter of law, of ever constituting a “special circumstance”.

102. In this matter, it was submitted by the defence that special circumstances ought to be found due to prospects for rehabilitation, young age, and his first time in custody. I accept and adopt these submissions.

103. The offender has not previously been in custody, except for custody relating to these offences. Further, the offender is of a young age, and has high prospects of rehabilitation, showing promising prospects in both his personal and professional lives. I find there to be special circumstances which should apply to reduce the non-parole period below the statutory ratio, and I have varied the statutory ratio accordingly.

SENTENCE

104. The offender is convicted of the 10 offences to which he has pleaded guilty.

105. A further 8 offences have been taken into account on various Form 1 documents.

Imprisonment – Counts 1, 5, 13

106. For Counts 1, 5 and 13, for which I find the s 5 threshold has been crossed, I intend to impose an aggregate sentence of imprisonment and am required to provide indicative terms accordingly, noting that all incorporate a discount of 25% for the offender's guilty plea:

107. for Count 1, an indicative sentence of 12 months imprisonment;

108. for Count 5, an indicative sentence of 2 years imprisonment;

109. for Count 13, an indicative sentence of 3 years imprisonment.

110. For Counts 1, 5, and 13, I sentence the offender to a total aggregate sentence of 4 years imprisonment, with a non-parole period of 2 years, meaning that:

111. allowing for time served, the head sentence commenced 5 October 2023 and expires 4 October 2027;

112. the non-parole period commenced 5 October 2023 and expires 4 October 2025, at which time the offender will be eligible for consideration of parole.

113. I direct the offender be supervised by Community Corrections while on parole and to obey all directions given by them.

Conditional Release Orders – Counts 2, 4, 6, 11, 12 and 18

109. For Counts 2, 4, 6, 11, 12, and 18, I impose Conditional Release Orders with conviction for a term of 2 years commencing 25 July 2025 and expiring 24 July 2027;

110. The standard conditions of the order are as follows:

111. the offender must not commit any offence; and

112. the offender must appear before the Court if called upon to do so at any time during the term of the Conditional Release Order.

113. I also impose the following additional conditions:

114. supervision condition: the offender must submit to supervision by Community Corrections for the period of the CRO;

115. rehabilitation and treatment condition: the offender must submit to and undertake any rehabilitation and treatment reasonably requested of him by Community Corrections, and those rehabilitation and treatment plans outlined in the Sentencing Assessment Report and the report provided by Psychologist Amina Ahmed;

116. abstinence condition: the offender must abstain from consuming drugs and alcohol, except any drugs prescribed to him by a medical practitioner;

117. enforcement condition: the offender must submit to random testing by police or Community Corrections for the purpose of ensuring compliance with the abstinence condition.

Other orders

112. For Count 12, I also record a 6-month licence disqualification.

113. For Count 17, I record a conviction but impose no further penalty, in accordance with s 10A Crimes (Sentencing Procedure) Act 1999 (NSW).

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Annexure - Sentence Remarks Table (113 KB, rtf)

Amendments

28 July 2025

Coversheet - publication restriction added. Paragraphs [59] and [84] - sensitive content redacted.

15 October 2025

Paragraph [111] - corrected additional conditions.