R (Cth) v ARMSTRONG

District Court of NSW|2023-12-04

Judgment

There are two sets of proceedings involving Harley David Armstrong. He appears for sentence in respect of two charges of fraud type offending and he appeals against what is asserted to be the severity of sentence imposed by a Magistrate at the Wagga Wagga Local Court in respect of a number of charges relating to the supply of prohibited drugs. The Commonwealth Director of Public Prosecutions appeared in both sets of proceedings, which were heard simultaneously at the Wagga Wagga District Court on 4 December 2023. For the sake of convenience, I will refer to the fraud matters as the sentence matter and the drug matters as the appeal matter.
In respect of the sentence matter the offender appeared before a Magistrate at the Wagga Wagga Local Court on 19 July 2023 and entered pleas of guilty to two charges, namely that (he): 1. (sequence 1) between 22 March 2022 and 5 April 2022 dishonestly obtained a financial advantage namely $64,092 from another person, namely the Commonwealth, contrary to s 134.2 of the Criminal Code, 1995 (Cth); and further 2. (sequence 3) between 9 April 2022 and 16 April 2022, attempted to dishonestly obtain a financial advantage, namely $123,855.00 from another person, namely the Commonwealth contrary to s 11.1 and 134.2 of the Criminal Code.
The pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 4 December 2023. Accordingly, the offender is entitled to consideration for facilitating the course of justice including the utilitarian value of the plea, which I assess at the numerical value of 25%.
The maximum penalty in respect of each of those matters is 10 years imprisonment.
In respect of the appeal matter, on 28 November 2022 the offender appeared before a Magistrate at the Wagga Wagga Local Court having pleaded guilty to the following charges that (he):

H89088968 1. Sequence 1: On 16 April 2022 at Temora in the State of New South Wales, did knowingly take part in the supply of a prohibited drug, namely 28 grams of methyl amphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act, 1985, and further, 2. Sequence 2: On 23 April 2022 at Coolamon in the State of New South Wales did knowingly take part in the supply of prohibited drug, namely 28 grams of methyl amphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act, and further 3. Sequence 3: On 24 April 2022 at Coolamon in the State of New South Wales, did knowingly take part in the supply of a prohibited drug, namely 7.7 grams of methyl amphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act, and further 4. Sequence 4: On 29 April 2022 at Coolamon in the State of New South Wales, did knowingly take part in the supply of a prohibited drug, namely 28 grams of methyl amphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act; and further

H91579044 1. Sequence 1: On 21 July 2022 at Junee in the State of New South Wales, did knowingly take part in the supply of a prohibited drug, namely 7.7 grams of methyl amphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act.

In respect of the matters attaching to H89088968 the offender first appeared before the Local Court on 9 May 2022 but on 29 June 2022 entered pleas of not guilty to each of the matters. Brief service orders were made. On 28 September 2022 pleas of guilty were entered to those matters. The learned Magistrate on passing sentence allowed a 20% discount for the utilitarian value of the pleas of guilty. On appeal, I would likewise allow 20% discount for the utilitarian value of the pleas. Senior Counsel for the appellant made no submissions in respect of this issue. The plea of guilty to the one matter attaching to H91579044 was entered at an early stage and accordingly the Magistrate allowed, as do I the full 25% discount for the utilitarian value of the plea of guilty.
The maximum penalty for the appeal matters if dealt with on indictment is 15 years imprisonment. The jurisdictional limit in the Local Court is 2 years. Noting authorities such as Park v The Queen [2021] HCA 37 at [22] and Greaves v R [2020] NSWCCA 140 at [66] the jurisdictional limit is precisely that: a jurisdictional limit and not a maximum penalty reserved for a worse category type case.
The learned Magistrate imposed an aggregate sentence of 2 years 6 months, with a non-parole period of 1 year 8 months with the sentence and non-parole period to date from 28 November 2022. I note that although the appellant was in custody from his arrest on 9 May 2022 on 12 September 2022 he was sentence to a total sentence of 9 months with a non-parole period of 5 months to date from 9 May 2023. It occurs to me that the appeal must be successful at least to the extent that the sentence should commence on a date earlier than the commencement date nominated by the Magistrate.

Facts - Sentence matter - fraud and attempted on the Commonwealth

In respect of both the sentence and appeal matters this offender is a co-offender to Wayne Garrett, who was sentenced at the Wagga Wagga District Court on 17 November 2023 in respect of the charge of three counts of fraud type conduct. The offender's mother is also a co-offender.
The facts in respect of the fraud and attempted fraud offending are set out in a comprehensive Statement of Facts and Tab 1 of the Crown Tender Bundle, exhibit A on sentence. No apparent objection or issue was raised by Senior Counsel for the offender and accordingly I will treat them as Agreed Facts. For the purpose of proceeding to sentence I am satisfied beyond reasonable doubt of the following facts.
In March 2022 New South Wales police lawfully intercepted tele-communications used by the co-offender Wayne Garrett. Although the facts set out this was regarding "unrelated offending" the irresistible inference is that the police were investigating the supply of prohibited drugs, particularly methyl amphetamine. Whilst monitoring the calls and text messages investigators identified this offender as being involved in the submission of false information to the Australian Taxation Office (ATO).
Between 23 March 2022 on 4 April 2022 the offender lodged a quarterly business activity statement and 12 amended business activity statements to the ATO for the reporting period 1 January 2022 to 31 March 2022. The offender claimed to have made business purchases to obtain GST input credits (refunds). The offender received refund in the sum of $61,092. This offending relates to the first charge for which the offender appears for sentence.
Further refunds totalling $123,855 were withheld by the ATO. This relates to the other federal offence to which the offender appears for sentence.
The offender did not carry out a business enterprise at any stage during the period of the offending and accordingly each business activity statement and amended business activity statement he submitted contained false information and he was not entitled to the refunds as claimed.
Between 22 March 2022 on 5 April 2022 the offender also submitted a false claim to Services Australia for the Australian Government disaster relief payment claiming that he lived in a flood affected region and his home and other possessions had been damaged by floodwaters. This was not the case. As a result of the claim, the offender received $3,000 to which he was not entitled. The sum of $3,000 is included in the total amount pleaded in the particulars relating to the first of the federal offences for which the offender appears for sentence. Overall the value of the fraud perpetrated by the offender is $64,092.
The facts explained that the GST is a 10% tax on those goods and services in Australia. It is collected by registered businesses at each step in the supply chain. If the business is registered for GST it sends the GST it collects less GST credits it can claim to the ATO monthly, quarterly or annually. GST registered taxpayers are required to report the periodic tax obligations and entitlements to the ATO on a business activity statement. For an entity to participate in the BAS lodgement process it is required to hold an Australian business number (ABN) which then allows a GST registration to take place. On the BAS the business is asked to include the GST charged on sales made to customers and the GST which the business pays for purchases from suppliers, called GST credit. Based on the figures set out in the BAS, the entity must then determine whether they are entitled to a GST refund from the Commonwealth or whether they have a tax liability to the Commonwealth arising out of GST collected sales. If a refund is owed to the entity for the Commonwealth the ATO deposits the amount of the refund via electronic funds transfer into a nominated bank account. The GST system of taxation relies upon the honesty of business entities in completing the BAS.
The facts then set out the procedure in accessing the ATO online via myGOV. A myGOV account enables a person to create a link to the ATO online services. Sole traders operating a business registered for GST may lodge and revise the BAS by accessing the ATO online via such an account. Only a user who has successfully authenticated in myGOV and has linked their myGOV account to the ATO can access the ATO online. A unique email address is required to create such an account. The users are provided with the user name and login procedures.
On 29 January 2022 the offender registered an ABN online with an effective start date 29 January 2022, listing his main business activity as "food delivery service for restaurants". On 14 March 2022 the offender called the ATO to request his tax file number and he was assisted in linking his myGov account to ATO online services. On 22 March 2022 the offender registered for GST via ATO online and backdated the registration to 30 January 2022. On 22 March 2022 the offender also added his bank account details in his name via ATO online.
Going to sequence 1, that is the actual fraud, on 23 March 2022 using ATO online the offender lodged an activity statement for the period 1 January 2022 to 31 March 2022. As a result of that lodgement he was issued a refund of $11,225 on 29 March 2022.
Then, between 29 March and 4 April 2022 using ATO online the offender amended the BAS four times for the period 1 January to 31 March 2022. As a result of those amendments the offender was issued a further $49,867 in credits to which he was not entitled. The refunds were deposited into the offender's Commonwealth bank account.
Paragraph 35 to 39 inclusive of the facts deal with the amount of $3,000 which forms part of the offending to which sequence 1 relates. On 22 March 2022 the offender submitted a claim to the agency for the February 2022 New South Wales floods disaster recovery payment. He claimed that on 23 February 2022 his usual place of residence (a Tweed Heads address) was impacted by the floods. Particulars were given that the interior of his home was exposed to the elements; floodwaters had entered his home, there was damage to the roof and walls and to the interior of the home. His motor vehicle and other assets such as a caravan trailer shed and water tank were also damaged or destroyed and he was without utilities and food was spoiled. He further claimed that floodwaters were at knee height and ruined all furniture and appliances. He assessed there to be $21,000 worth of damage to the home, $21,000 worth of damage to his motor vehicle, $3,800 worth of of damage to his electric scooter and $1,878 worth of damage to his laptop.
The claim was false as the offender was not residing at a Tweed Heads address. The address at which the offender claimed he was living is a property owned by the Department of Housing New South Wales and has been rented to another person since 1991. As a result of the deception the offender received $3,000 from the agency in three separate $1,000 transactions on 24 March 2022, 30 March 2022 on 5 April 2022. The money was credited to the offender's Commonwealth Bank account.
Going to the other federal offence (sequence 3), between 9 and 16 April 2022 using ATO online the offender amended the BAS a further eight times for the period 1 January to 31 March 2022. The offender claimed further GST refunds totalling $123,855. Those refunds were stopped by the ATO and were never issued to the offender. The offender did not run a genuine business during the period of the offending. The facts recite and it must clearly be the case that the offender created the entity and registered for GST for the sole purpose of obtaining fraudulent refunds from the ATO.
The facts then go on to set out how the offending was detected. On 20 April 2022 an ATO audit finalisation letter was issued for the activity statement period 1 January 2022 to 31 March 2022. The letter advised that the ATO had recently noticed unusual refund activity, the ATO took a closer look, and that the ATO decided the amounts reported are incorrect as information held by the ATO indicates no evidence that the offender was carrying on a business. The offender did not respond to the letter.
On 25 April 2022, during a lawfully intercepted telephone call, the offender and Garrett had a conversation about the ATO fraud. During the conversation the offender told Garrett he was not able to do anything on his ATO online account. The accused said he wanted to meet up with Garrett to discuss the "ATO thing". Garrett told the offender he could "come up with the documents" to fix his problem and that he would show him how to forge them.
On 22 November 2022 the offender was conveyed to the Wagga Wagga Police Station by NSW Corrective Services. As was his right he declined to be interviewed in respect of the alleged offending.

Assessment - fraud matters

I go now to make an assessment of the seriousness of the offending, noting that although there are two charges the offending is essentially one ongoing course of conduct. The amounts of money involved are quite substantial, with the offender actually receiving $64,092 by fraudulent activity and him attempting to obtain a further $123,855. The offending occurred over a period of some weeks. There was a real degree of sophistication, noting in particular the requirement to register a business entity and obtained an ABN. Given the offender's unchallenged evidence at the sentence hearing I am satisfied that the co-offender Garrett persuaded the offender to engage in the fraudulent activity. Noting the nature of the offending, the level of sophistication involved, and the amount of money involved I am of the opinion the matter is within the mid-range of seriousness, however, it is less serious than the offending engaged in by Garrett. I note in particular Garrett was sentenced in respect of three fraud type offences.

Facts - appeal matters

The facts in relation to the drug supply matters subject of the appeal that is before the court before the court are by way of a police fact sheet. No apparent objection is taken to any of the contents and accordingly I will deal with the contents of the fact sheet is agreed facts.
In March 2022 investigators established Strike Force Morag to investigate the supply of prohibited drugs in the Wagga Wagga area. As a result, police applied for and obtained a telephone interception warrant for Wayne Garrett's telecommunication service. Physical surveillance was also conducted by investigators. Monitoring of the telephone calls and SMS messages indicated that Garrett and this appellant were actively involved in the supply of prohibited drugs.
There are a total of five charges of Knowingly Take Part in the Supply of a Prohibited Drug, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, four of the offences being committed in April 2022 and the fifth being committed in July. The offender's mother is a co-offender in respect of the July matter. The offender was in custody at Junee Correctional Centre at the time.
Between 13 and 16 April 2022 evidence was obtained from lawfully intercepted calls and SMS messages between this appellant and Garrett relating to the supply of prohibited drugs. All charges relate to the supply of methamphetamine or "ice". The contents of those messages are set out in the facts sheet. There were conversations on 15 and 16 April between the two of them relating to the price of an ounce. Garrett agreed to supply this appellant one ounce for the price of $7,500. Conversations monitored on 16 April 2022 confirmed that the transaction took place. The quantity was purchased by this appellant to onsupply the substance.
The next offence occurred on 23 April 2022. Evidence was obtained from lawfully intercepted SMS messages between this appellant and Garrett relating to the supply of drugs. The precise messages are set out in full within the facts sheet. It is tolerably plain that this appellant was seeking to purchase an ounce (28 grams). Intercepted calls and messages indicate this appellant travelled to Coolamon to receive the prohibited drugs from another person "Shane". The purchase was for the purposes of onsupply.
Going to the third offence on 24 April 2022, evidence was obtained from lawfully intercepted calls and messages between this offender and Garrett that related to the supply of prohibited drugs. There was a conversation between the two of them as set out in the facts sheet. Part of the call is Garrett indicating that he had "only half a one left" and further "it's literally one big rock and it's 15 g". At this appellant's request Garrett sent a photograph of the substance. There was a further conversation and Garrett agreed to supply this appellant 7.7 grams - i.e. half of what he had available - for $2,000. This appellant purchased that substance for the purpose of onsupply.
Offence 4 took place on 29 April 2022 and involves the quantity of 28 grams or 1 ounce of methamphetamine. Evidence was obtained from lawfully intercepted calls and messages between this appellant and Garrett on 29 April 2022 relating to the supply of prohibited drugs. This appellant asked "have you got exactly a full one but?" Garrett replied in the affirmative. Further calls confirm the transaction took place. Garrett supplied this appellant with an ounce (28 grams) of methamphetamine for the purposes of on supply.
Garrett was arrested on 5 May 2022. Police seized 90 grams of methamphetamine at the time of Garrett's arrest. The facts sheet sets out that investigators were of the opinion that Garrett was this appellant upline supplier.
This offender was arrested at about 10:50 AM on 9 May 2022 at his residence at McCormack's Lane, Marrar, i.e. the farm. Police attempted to seize the appellant's mobile phone however he became agitated and smashed the phone on the ground. The phone was however still seized. The appellant was taken into custody and declined to be interviewed.
The appellant received 91.7 grams of methamphetamine for the purposes of on supply.
As earlier stated, the July offence occurred while the offender was in custody on remand at the Junee Correctional Centre. On 21 July 2022 the appellant made a telephone call to his mother through the Correctional Centre phone system using his personal account. The appellant indicated to his mother that his old cellmate was about to leave, that that person was going to Junee and that he would probably ring her and that he told him 25, meaning $2500. His mother asked for how many; the appellant replied "2 bags". The appellant is also heard speaking to the person Timothy Scott (the cellmate) in the background. The appellant tells his mother to make sure that two bags are supplied. At about 2 pm police stopped a silver Toyota Prado on the Olympic Highway at Junee. The appellant's mother and Scott were in the vehicle. A search revealed two small resealable bags containing a crystalline substance, methamphetamine. There was a total weight of 7.7 grams inside the bags. The appellant was charged with this offence on 22 November 2022.

Assessment - drug matters subject of the appeal

While the quantity of drugs involved is an important consideration it is neither the only factor nor the most important factor in assessing the seriousness of an offence relating to the supply of prohibited drugs. A number of authorities have indicated that the role of the offender and the level of his or her participation and the sophistication of the enterprise is also a very important element determining the seriousness of the matter relating to the supply of prohibited drugs.
The offender was obtaining reasonably substantial quantities of the substance but I cannot be satisfied beyond reasonable doubt other than that he was supplying to end users rather than to some other supplier. Essentially the appellant was what could commonly be called street dealer.
Nevertheless, the five matters involved a total something very close to 100 grams of the substance. This is 20% of the commercial quantity. The indictable quantity is 5 grams. Accordingly the appellant was involved theoretically in the supply of 20 times the indictable quantity. The enterprise was not particularly sophisticated. I accept that the appellant was involved in the supply of drugs partly to finance his own habit.
In all the circumstances I am of the opinion that the supply drug charges are all below mid-range.

Criminal history

The following is relevant to all matters that are before the court. The offender was born on 4 November 1991 and accordingly is now 32 years of age and he was 31 at the time of offending. He has an unenviable criminal history. In 2010 he was convicted of affray and drive vehicle with an illicit drug present in blood or oral sample. In 2011 he was convicted of traffic matters. In 2012 he was convicted of a street offence (language) and in 2012 convicted of various domestic violence offences including Stalk/Intimidate and contravene domestic violence order. In 2014 he was convicted of further domestic violence offending including common assault in contravention of an apprehended violence order. In 2014 he was convicted of escaping from lawful custody in respect of which he was sentenced to imprisonment. He was also given good behaviour bonds for supply a prohibited drug and possess prohibited drug. In May 2015 the good behaviour bond was called up and he was sentenced to imprisonment. His record contains a number of charges of possess prohibited drug.
The offender's criminal history also includes serious driving offences such as driving whilst disqualified in respect of which he was sentenced to community service. In September 2019 he was dealt with on indictment in the District Court for supplying a prohibited drug in respect of which he was sentenced to a term of imprisonment to be served by way of intensive correction order. There are further convictions for driving whilst disqualified. On 12 September 2022 he was sentenced to a total sentence of nine months with a non-parole period of five months for the charge of Stalk/Intimidate. On 28 November 2022 the offender was sentenced in respect of the matters to which the appeal presently before the court relate.
Overall, the criminal history of the offender is one that does not entitle him to any particular leniency. Further, while I deal with the record on that basis nevertheless an aspect of specific deterrence must be factored into to the sentence to be ultimately imposed on the offender at least to some extent.

Some aspects of s 16A(2) Crimes Act 1914 - relevant to the fraud matters

When setting out the facts and making an assessment of the seriousness of the matters I have dealt with the nature and circumstances of the offences - see s 16A(2)(a) of the Crimes Act 1914 (Cth). I note and have regard to the requirement set out in s 16A(1) that the court is required to impose a sentence that is of a severity appropriate in all the circumstances of the offence. In this regard I also note and have regard to s 16A(2)(k) that in passing sentence I must take into account the need to ensure that the offender is adequately punished.
Going to the other matters mandated by s 16A(2) of the Crimes Act 1914 there are no other offences to be taken into account. I am satisfied that the offending does amount to a course of conduct, although the period over which it was committed was limited to a few weeks.
The victim is the Commonwealth. While the offending is most certainly not a victimless crime in that honest taxpayers are the ultimate victims of the offending, I am not able to make any finding so far as s 16A(2)(d) of the Crimes Act 1914 is concerned. The injury loss or damage is $64,092. The second charge relating to the attempt relates to an attempt to obtain a further $123,855. As I have already observed these are substantial amounts of money, the total being $187,947. I observe that figure is well beyond the average wage or salary for a worker in Australia. Section 16A(2)(ea) is not relevant to the matters before the court.
Section 16A(2)(f) relates to remorse and contrition. I will deal with that issue as well as the offender's prospects of rehabilitation when I deal with the subjective case later within these reasons. There has been no attempt to date to repay any of the money defrauded from the Commonwealth. However, the offender gave evidence that his family have agreed to provide $20,000 and arrangements will be made so far as the balance of the $64,092 is concerned. I understood the offender to give evidence to the effect that this would be deducted from his inheritance. While the money will be repaid it does not involve any sacrifice on the part of the offender. A reparation order will be made as part of the formal orders in this matter. There is nothing done by the offender which in my view would amount to co-operation with law enforcement agencies.
Clearly there is an aspect of general deterrence to be addressed in this sentencing exercise. As the plurality said in Hili & Jones v The Queen (2010) 204 A Crim R 434 at [63]: "The applicants' offending was sustained over a long time. It was planned, deliberate and deceitful, requiring for its implementation the telling of many lies. The applicants acted out of personal greed. The amount of tax evaded was not small. Detection of offending of this kind is not easy. Serious tax fraud, which this was, is offending that affects the whole community. As was pointed out in Ruha, the sentences imposed had to have both a deterrent and a punitive effect, and those effects had to be reflected in the head sentences and the recognizance release orders that were made."
The offending in that case was more serious than the matter under consideration and occurred over a longer period of time. However, that part of the extract above about acting out of personal greed, detection not being easy, tax fraud affecting the whole community and the need for general and specific deterrence has a broader application and is certainly apposite to the matter presently under consideration. However, for reasons upon which I will expand later in these reasons the role of general deterrence is decreased to an extent in the matter presently under consideration because of mental health issues.
There is also an issue of general deterrence to be addressed so far as the matters subject of the appeal are concerned. See for e.g. Parente v R (2017) 270 A Crim R 412 at [107]-[110].
I will now go to the subjective material, which has application to all of the matters before the court. The offender gave evidence and a volume of written material, which is indexed, was tendered and became Exhibit 1 on sentence. I will initially go to the evidence of the offender, including the affidavit he affirmed on 21 November 2023.
The offender is now 32 years of age. He was born on 4 November 1991. The offender did not know his father until he was 18 and was raised by his mother, Helen Armstrong, and his grandmother, Shirley Armstrong. He was of the belief that he was an only child until he met with his father when he was 18 and discovered he had five step siblings. He has not established any relationships with any of his stepsiblings. He had the benefit of going to the Kings School but was expelled. He was subject to bullying at school particularly about his weight.
While the offender was at boarding school in Sydney the offender's mother travelled to Sydney and took the offender and a friend on a jet boat. There was an accident as a result of which the offender's mother was quite severely injured. In oral evidence the offender said he went to St Stanislaus school at Bathurst after he left the Kings School.
Returning to the affidavit the offender sets out that he felt guilty over his mother being injured and felt it was his fault. With this and the bullying he lost interest in school and his mental health deteriorated. He felt alone and felt lost. Those feelings continued after left school and he began using drugs at the age of 16. He commenced using cannabis and progressed to methamphetamine (ice). He stopped using cannabis when he was 24.
He commenced using methamphetamine when he was 18 or 19 and has used that substance on and off since that time. There have been periods when he was abstinent, for example while he was in residential rehabilitation in Queensland in 2019 and for some time thereafter. While at that rehabilitation facility he was prescribed Oxybutynin for excessive sweating. He found however that had significant side-effects. The side-effects continued even when he stopped the medication. He relapsed and recommenced using methamphetamine.
The offender sets out in his affidavit that he was using approximately 1 gram of methamphetamine per day, which is valued at about $500. He was spending $3,500 a week on the drug which he purchased from his co-accused Wayne Garrett. He then commenced selling methamphetamine for Garrett in order to support his own habit. He sold to people that he knew and that he knew were drug users.
Appropriately the offender (at paragraph 23) says that he did not give any thought to the harm he was perpetuating and selling drugs and he did not think of the consequences at the time.
The offender then goes on to explain that it was Wayne Garrett who gave him the idea of committing the tax fraud and further it was Garrett who told him how to go about committing fraud. He maintained that he gave his co-accused the money that upon which they had agreed on the remainder of the money he received was spent financing his drug habit.
Although the offender has been in custody before, he maintains (paragraph 29) that this is the hardest time he has done so far. He's been in custody continuously since 9 May 2022. He has applied to do the "Bupe" program but has been told it will be some few months before it could enter the program.
Further, the offender maintained his mental health has suffered while in custody. The affidavit refers to auditory hallucinations. In his oral evidence the offender said that those auditory hallucinations ceased.
The offender caught Covid-19 while in custody, which made him sick. Due to having Covid he was unable to have physical visits for some few weeks. He began to overeat and eat the wrong kind of food as "comfort food". In around June 2023 he made a decision to make some positive changes to his lifestyle; he has altered his diet and is exercising regularly and has lost 12 kg. He is now 180 kg and his goal weight is 125 kg. The exercise regime is set out in the contents of his affidavit.
So far as his future is concerned he notes that his mother is 57 years of age and his grandmother is 81 years of age and that there are no men in their lives. They run the farm "Armdale", near Marrar. The property is some 710 ha. Crops are grown and the property also runs a sheep stud. They have 300 to 400 sheep at any one time on the property. Both his mother and grandmother have their own health issues. For example, his mother has had two discs replaced on her back, both knees reconstructed and a hip replacement. His grandmother suffers from severe scoliosis and is almost fully bent over from the waist. Despite that she works on the farm. The offender sets out what he was doing on the property before going into custody and annexes to his affidavit a schedule setting out the work he will be doing on the farm upon his eventual release. The offender understands that the farm will be passed to him at some point in time and that he needs to start the process of operating the farm while he can rely on his mother and grandmother for support and guidance. He expresses a desire to work on the farm and make that his life.
The offender, both in his affidavit and oral evidence, maintains he has been abstinent from drugs in custody. He maintains he wants to engage with appropriate professional assistance and guidance upon his release to ensure that he remains abstinent. He has made a connection with a psychologist, a Mr Chafic Awit, who has prepared a report which is part of Exhibit 1 on sentence and to which I will later return. He maintains also that he will engage the medical practitioner at Junee upon release to assist in the coordination with various services. He is looking forward to maintaining pro social associations upon his eventual release.
I turn now to the oral evidence the offender gave at the sentence hearing. He confirmed that the content of his affidavit was true and correct and that he had told the authors of the various reports relied upon the truth. The evidence continued that he has seen Dr Roger Blake, a psychologist at Wagga Wagga and Dr Luke Johnson a psychiatrist, who was practising at Wagga Wagga. Dr Johnson has since had his registration as a medical practitioner cancelled and is unable to reapply for registration for two years - see Health Care Complaints Committee v Johnson [2023] NSWCATOD 165.
The evidence of the offender then turned to the contents of paragraph 12 of the report of Mr Awit, psychologist, which sets out that at the age of 24 the offender was the victim of a shooting. Initially the offender maintained his evidence that he did not remember that incident but later in his evidence recalled that it occurred at an address at Tarcutta Street, Wagga Wagga. The incident involved a shot gun being discharged at close range in his direction. He maintained that the projectile missed him by about 30 cm. I remain somewhat circumspect about this aspect of the offender's evidence, noting in particular that he initially did not remember the incident, and that he spoke of a projectile where he maintained the weapon involved was a shotgun.
The offender maintained a little later in his evidence that his initial lack of memory about the incident was because he was extremely nervous, that he had a lot going on his mind and that he had been "stressing out" about the sentence proceedings for a long time. Be that as it may it occurs to me that being shot at within a relatively short range is not something that would be easily forgotten.
Further, when he was 19 he was the victim of a home invasion at his home at Junee. He was stabbed by the intruders who he maintained he did not know. He maintained this was not drug related. A little later in his evidence he said that surgery was required in respect of the stab wounds and that he suffered from post traumatic stress following the home invasion.
The evidence continued that Wayne Garrett was the offender's upline supplier who he met through a mutual friend. He was not currently on any medication. He found that if he stopped taking medication he stopped hearing voices. He gave some further detail about his exercise regime.
Mr Bellanto KC then took the offender to his earlier life. He was clearly traumatised by the boating accident in which his mother was injured. The offender was 14 and attending boarding school. His mother travelled to Sydney and took the offender and a friend on the jet boat ride as a treat. In the course of the boat performing a 360° turn the seat where his mother was situated dislodged and she was severely injured.
The evidence continued that he was expelled from the Kings School following an incident at the boarding house where he became engaged in a physical dispute with a fellow student. The account the offender gave is that he stood up for himself where the other student was engaging in bullying. He then went to St Stanislaus school at Bathurst until the end of year 10.
He was 16 years of age and left school at the end of year 10. He commenced an apprenticeship that lasted about a year, after which he was terminated following a disagreement with his employer. He maintained that the employer was not being as helpful as he could in teaching him the trade. He then engaged in work with Ridgeway's removals and also a steel supply company.
The evidence continued that he had been in a toxic domestic relationship and maintained he was the victim of both physical and mental abuse in the course of that relationship.
In respect of drug use the offender gave evidence that he started using cannabis at 16 and by 17 was using that substance on a daily basis. He also used MDMA (ecstasy) in social settings. He began using methamphetamine (ice) when he was 18 or 19 and he also has taken GBL. The offender maintains he still suffers from depression and has regular nightmares.
The offender was then asked about his criminal history. He maintained that the domestic violence matters occurred during the course of what he described as a toxic relationship, which lasted for about five years. He said that that relationship was unstable. He commenced seeing a psychiatrist and received regular counselling as a result of issues relating to that relationship. I understood the evidence was that he was taking cannabis and MDMA at the time. In respect of the Escape matter on his record, the offender said that was the first time he had been refused bail and he was afraid about going to gaol.
In the context of being asked about his initial lack of memory in respect of the shooting incident, the offender maintained that given his history of drug taking and depression he sometimes has difficulty with his memory. I maintain my earlier observation that being shot at is something that would not be easily or readily forgotten.
Continuing with his evidence the offender maintained he was abstinent from substances while in residential rehabilitation in Queensland. He confirmed that whilst at the facility he began to take Oxybutynin. He found that produced side-effects such as auditory hallucinations, back pain and kidney pain.
The offender acknowledged that he has been in custody for approximately 18 months. He has remained drug-free and maintains a health and exercise regime. He maintains he will keep up that regime as long as he remains in custody and that he does not want to go backwards. He is not hearing voices. He accepts that he has put his mother and grandmother "through hell". He accepts that given their respective health issues that his mother and grandmother cannot continue working on the farm. He understands the effect of any breach of parole.
The offender then gave evidence about a family dispute between his family and an uncle who operates a property adjoining their property "Armdale". He also said that he will be forfeiting some of his inheritance to pay restitution to the Commonwealth. Arrangements have been made for the family to provide $20,000 as an initial payment. I observe the offender should consider himself extremely fortunate that his family have continued to support him the way in which they have. This is particularly so given that he managed to get his mother involved in supplying drugs on his behalf.
On a couple of occasions in his evidence the offender said that Wayne Garrett was his upline supplier who he met through a mutual friend. He maintained that Garrett was involved in a wider range of drug activity than he himself was. The offender maintained that the tax fraud was Garrett's idea and that Garrett was obtaining half the proceeds of fraud. The evidence continued that Garrett knew of the offender's financial position and suggested the scheme to him and told him how to go about perpetrating the fraud.
The offender was cross-examined on aspects relating to the home invasion and the shooting as well is the domestic violence matters on his record. Under cross-examination the offender maintained he was selling drugs to pay for his own drug habit. He essentially conceded the money obtained from the fraud was for his personal use. The offender was reminded whilst under cross-examination of $3,000 which he obtained himself as a result of the fraudulent disaster relief payment claim.
Further, the offender maintained that the last time he used illicit substances was the night before his arrest. He wants to go on the "Bupe" program to decrease the risk of relapse.

Reports of Mr Chafic Awit, Psychologist

Contained within the bundle relating to the appeal matters is a report by Mr Awit dated 29 August 2022. I note that it is set out at the beginning of that report that it was prepared in respect of an application pursuant to s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act, 2020. Given the quantity of drugs involved and the nature of the enterprise, such an application in my view would have been extremely optimistic, perhaps even aspirational. Be that as it may, I will need to go to the contents of the report as it forms part of the material that is before the court.
The diagnosis was a generalised anxiety disorder and major depressive disorder. The early history of the appellant is set out as is the employment history and alcohol drug history, some of which has already been dealt with. It is the opinion of the author of the report that the appellant's development of depression and anxiety occurred from the age of 14 following the jet boat accident in which his mother was injured. Further, the author opines that the development of PTSD symptoms occurred after being the victim of a home invasion. He goes on to say that the appellant developed an illicit substance addiction as a means of numbing himself from his underlying symptoms.
At page 5 of the report of 29 August 2022 Mr Awit sets out that it is his professional opinion that the reported symptoms meet the criteria for post-traumatic stress disorder, major depressive disorder and substance use disorder. The auditory hallucinations are also noted although the author goes on to say at the time of the report it was not determined as to whether the auditory hallucinations are substance induced or are a result of an underlying psychotic disorder.
Mr Awit goes on to say (page 8) that at the time of the offending the appellant's mental condition led to a mental impairment; that impairment caused a temporary thought and mood volition; the disturbance would have been regarded as significant clinical diagnostic purposes and the disturbance impaired the emotional well-being and judgement of the appellant. He goes on to opine the appellant's decision-making ability had been somewhat impacted by his mental health impairment. At page 9 of the report it is noted the appellant was heavily impacted by underlying conditions for "quite some time". A treatment plan is set out at the end of the report.
The treatment plan included attending drug rehabilitation, that he continued treatment by the author of the report for 12 months, that he return to Dr Johnson, that he adhered to prescribed medication, that he received cognitive behaviour therapy which will focus on identifying high-risk situations, learning to recognise negative emotions, finding means to reduce exposure to high-risk situations and skills to assist to cope with stress.
I now turn to the report of 14 November 2023, prepared for the purposes of the sentence proceedings. The diagnoses of post-dramatic stress disorder, major depressive disorder, and substance use disorder are maintained.
The early history of the offender is again set out, noting the offender was born in Wagga Wagga and was the only child of his parents' union. He was two when his parents separated. He commenced boarding school at the age of 13 and his mother was employed in responsible positions during his childhood. The issue of the boating accident is set out at paragraph 4 of the report. The offender's schooling, which has been detailed earlier in these reasons, are set out at paragraph 6. His employment history is also set out.
Again, the issue of the home invasion is raised - see paragraph 9 of the report - as is his use of methamphetamine and GBL following the incident. The abusive domestic relationship is also mentioned.
Mr Awit maintained that the appellant's development of depression and anxiety occurred from the age of 14 after his mother was injured in the boating accident. The shooting is mentioned at paragraph 12 of the report. At paragraph 13 it is noted that the appellant since mid-2021 had commenced seeing Dr Luke Johnson. The appellant was prescribed antipsychotic medication and he was instructed to attempt to come off the illicit substances so it could be determined whether or not he was suffering substance induced psychotic disorder or a more serious condition such as schizophrenia.
It is noted at paragraph 16 of the report the final diagnosis contained in the report is not based on psychometric testing. At paragraph 21 Mr Awit opines that the offender suffers from post traumatic stress disorder, major depressive disorder and substance use disorder. It is curious that the author of the report sets out that the offender also suffers from hearing voices in circumstances where the report is dated 14 November 2023 and the offender gave evidence that he no longer suffers from auditory hallucinations. Details and symptoms of the diagnosed conditions are then set out over several pages.
At paragraph 22 of the report Mr Awit maintained that it is his professional opinion that the offender's decision-making ability had been somewhat impacted by his mental health impairment. The offender told the author of the report that all charges that are before the court occurred because of his struggle to support his own drug addiction. Mr Awit sets out at paragraph 23 the offender told him that his cravings for methamphetamine are "long gone" but he is interested in attending further counselling to assist with life time abstinence.
In the absence of anything further it is difficult to determine whether "the offender's decision-making ability had been somewhat impacted by his mental health impairment" amounts to a causal connection so as to enliven the principles enunciated by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178]. Noting the decision of Moiler v R [2021] NSWCCA 73 (particularly per Button J at [58]-[59]) for more abundant caution I am prepared to make a finding that there is a causal connection between the offending and the mental issues suffered by the offender. While those factors impact on the aspects of general and specific deterrence to an extent they do not achieve significant weight in the sentencing exercise. This is particularly so given what appears in paragraph 23 of Mr Awit's report, namely: "…He acknowledges that he has no excuse for his behaviour and indicated that he has often acted before thinking things through. Mr Armstrong advised that both sets of charges occurred due to his struggle to support his own addiction".
Further, particularly so far as the fraud matters are concerned there is the aspect of the planning and the nature of the offending. The appeal matters of Supply Prohibited Drug involve a number of individual and separate transactions.
Mr Awit goes on to opine that the offender has gained some insight into his behaviour and understands the negative impact of his use of substances. He further opines that the offender has not sought sufficient psychological intervention to deal with PTSD and depression symptoms.
At paragraph 25 of the report Mr Awit opines that the offender's risk of re-offending will continue to reduce with both ongoing psychological and psychiatric care together with his abstinence from substances. I also understand Mr Awit to opine that custody will be more onerous for the offender.
Mr Awit sets out a treatment plan, including referral to a suitable psychologist, return to Dr Luke Johnson (this will not be possible given the status with his registration), adherence to medication, Cognitive Behaviour Therapy, counselling relating to substances and counselling to deal with matters such as learning how to deal with emotions and stress.
In dealing with the subjective matters at length I have addressed the requirements of s 16A(2)(m) of the Crimes Act 1914.
I am not prepared at this point in time to make a positive finding that the offender has good prospects of rehabilitation. While it seems that there are very positive signs, not the least of which is the fact that the offender has gained insight into the connection between his offending and substance abuse, much will depend on the manner he engages with the appropriate agencies and authorities upon his release. I assess the offender's prospects of rehabilitation to be reasonable, but those prospects will increase if he remains abstinent and engages in the appropriate treatment and counselling for substance abuse and mental health issues. I note that the offender has good family support from his mother and grandmother, which also goes to the issue of rehabilitation. So far as the fraud offending that should take care of s 16A(2)(n) of the Crimes Act 1914 (Cth).
Further, given the age of the offender and his criminal history, noting the number of orders of conditional liberty he has received over the years, I am not prepared to make a positive finding at this point that he is unlikely to re-offend. Again, much will depend upon the manner in which he engages upon his release from custody.
These reasons are prepared without the benefit of a transcript of the evidence of the offender or the oral submissions made. I have no note or memory of learned King's Counsel addressing on the issue of remorse and contrition. Nor do I have any note or memory of any evidence from the offender that could be construed as indicating remorse and contrition. However, taking the content of the affidavit as a whole I am prepared to find on balance that the offender has shown remorse and contrition but that remorse and contrition achieves little weight.
So far as s 16A(2)(p) of the Crimes Act 1914 (Cth) is concerned there is the material in the affidavits of the offender, his mother and his grandmother. The offender's mother and grandmother operate the farm at Marrar. Both have their own significant health issues. The offender is not there to assist on the farm and accordingly that is an effect on the offender's family that must be factored into the subjective mix.

General Remarks

Mr Bellanto KC submitted that the issue of general deterrence is "modified" by the mental condition suffered by the offender. I have found this is the case, but while ameliorated to an extent because of the mental condition the issues of general and specific deterrence still have work to do in this sentencing exercise. The extent and nature of the mental condition were the subject of comprehensive oral submissions.
The submissions on behalf of the offender continued to the effect that superimposed on the mental health conditions was the evidence of life-changing matters. I accept the issues of bullying and the like at school. However, the offender has had what can be described as almost a privileged background. Indeed, I was left wondering during the oral submissions whether despite that background King's Counsel was putting that the principles enunciated in Bugmy v The Queen [2013] HCA 37 were enlivened. Despite the adversity suffered by the offender those principles are not enlivened in this case.
Submissions were made on the evidence of the offender, including that his lifestyle of taking drugs and medication led to the offender selling drugs to feed his own addiction. The fact that the offender was selling drugs to feed his own habit has been taken into account in the determination of the seriousness of those matters. Further, the offender has made a meaningful start to his rehabilitation. The family support the offender enjoys from his mother and grandmother was appropriately emphasised.
Learned senior counsel also submitted and used the expression "the vagaries of youth". The offender is now 32 years of age and cannot be described as a young offender.
Mr Bellanto KC put as his ultimate submission that the sentence in respect of the drug matters would be reduced, that the partial accumulation of sentences would not be significant and that overall the court would impose sentences which would have the practical effect of the offender being released early in 2024. With respect to very able and experienced King's Counsel, that submission was optimistic.
The Crown Prosecutor relied on her written submissions, which are comprehensive and helpful. I have dealt with much of what is contained within those submissions by the findings earlier in these reasons. The Crown appropriately emphasised the need for general and specific deterrence but acknowledged the mental health issues suffered by the offender in oral submissions. The Crown maintained that the mental health conditions were part of the subjective mix rather than enlivening DPP (Cth) v De la Rosa at [177]-[178]. I have found that those factors are enlivened to an extent. In all the circumstances those factors do not attain the weight they might in other circumstances. The practical effect on the ultimate sentence would be essentially the same whether I simply include the mental health conditions as part of the subjective material or whether the principles enunciated in De la Rosa are enlivened to the extent that they are in this case.
The Crown also accepted that this offender is less culpable than Garrett. Further the Crown submitted, correctly in my view, that I would be guarded at this point in time of making a finding that the offender had good prospects of rehabilitation. The Crown likewise submitted, again correctly, that I would not make a positive finding that the offender was unlikely to re-offend.
With their usual thoroughness the Commonwealth have provided a number of authorities said to be like cases, those authorities being Acosta v R [2015] VSCA 94, Rasel v R [2022] NSWCCA 239, Sabra v R [2015] NSWCCA 38. I have read and considered those authorities. The amounts of money involved in Rasel are quite similar to the matter presently under consideration but the offending was different in that nine false tax refunds over two days and a further 20 false tax returns over 57 days. The matter also involved the offender using his position of employment in accessing identification information.
So far as the appeal matter is concerned, I will need to give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999. Section 3A sets out the purposes of punishment, namely: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
Section 5(1) of the Act provides: A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
Given the offending, including but not limited to the quantities of substances involved in the transactions, the criminal history of the offender and the need for general and specific deterrence (which in this matter is ameliorated to an extent) I am firmly of the opinion that there should be a custodial sentence. I did not understand King's Counsel for the offender to submit otherwise.
The authority of DPP (Cth) v Beattie (2017) 270 A Crim R 556 at [146] is authority for the proposition that an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 can be imposed in respect of Commonwealth offending. I will adopt that course with the Commonwealth offending.
There is a clear issue of parity to be addressed in this matter. The co-offender Garrett was sentenced for the fraud matters committed by him to an aggregate sentence of 3 years and 4 months with a non parole period of 1 year 9 months. He was however sentenced in respect of three offences and his offending was somewhat, but not significantly, more serious, both in respect of the fraud and the drugs than the matter presently under consideration.
In respect of the drug matters Garrett was sentenced in the Local Court to an aggregate sentence of 3 years with a non-parole period of 2 years. The aggregate sentence involved four offences, the indicative sentences being 2 years, 2 years, 4 months and 18 months.
Although I have described Garrett as a co-offender the situation is that while this offender and Garrett were involved in the same enterprises, the offences for which they appear and appeared for sentence were offences committed by themselves.
Further with this offender, there is an issue of totality to be addressed, noting that the sentence imposed in respect of the drug matters. On 12 September 2022 the offender was sentenced in the Local Court to a total sentence of 9 months with a non-parole period of 5 months for the offence of Stalk/Intimidate. The non-parole period commenced on 9 May 2022 and expired on 8 October 2022. Be that as it may, the learned Magistrate commenced the non-parole period on 28 November 2022. The appeal must succeed to a limited extent on the issues of parity and the commencement date of the sentence and non-parole period.
There should be a reasonably generous finding of special circumstances in respect of the sentence for the drug matters. Those include a need for a longer period of supervision to ensure that the offender receives the intensive and extensive supervision he will require to treat the substance abuse and mental health issues. There is also an issue given the length of the sentence of the offender requiring assistance in reintegration into the community. Those same issues go to inform the ratio between the total sentence and the time in actual custody so far as the fraud matters are concerned. On the issue of special circumstances or the ratio between total sentence and time in actual custody there is also the issue of partial accumulation of sentences.
There will need to be some degree of meaningful partial accumulation of the sentence for the fraud matters.
As I propose to impose an aggregate sentence for the fraud matters it will be necessary for me to set out what sentences I would have imposed had separate sentences been imposed. In respect of the charge of Obtain Financial advantage by Deception the appropriate starting point is a sentence of 3 years, which with the deduction for the facilitating the course of justice including the utilitarian value of the plea produces a total sentence of 2 years 3 months. In respect of the Attempt charge the appropriate starting point is a sentence of 18 months, which with the deduction for facilitating the course of justice including the utilitarian value of the plea produces a total sentence of 13 months. There would need to be some degree of partial accumulation if separate sentences were imposed.
In respect of the appeal matter it is also appropriate to impose an aggregate sentence. Noting what I have said about the issue of parity and taking into account the various matters to which I have referred in these reasons the sentences that would have been imposed had separate sentences been imposed are: H89088968 Sequences 1 and 2 - total sentence of 1 year 9 months indicating a starting point of 2 years 3 months; and In respect of sequences 3 and 4 - total sentence of 11 months indicating a starting point of 14 months; and In respect of H91579044 sequence 1 - total sentence of 12 months indicating a starting point of 16 months.

Appeal matters

The appeal is upheld. I set aside the sentence of the Local Court. In lieu the offender is sentenced to an aggregate sentence of 2 years and 2 months with a non-parole period of 1 year 4 months. The non-parole period is to date from 9 August 2022 and will expire on 8 December 2023. The balance of term of 10 months will commence on 9 December 2023 and will expire on 8 October 2024. The offender is to released to statutory parole at the expiration of the non-parole period. I accept this will have no practical effect because of the sentence I am about to impose in respect of the Commonwealth matter.

Commonwealth matters (fraud) In respect of each matter to which the offender has pleaded guilty, he is convicted.

The offender is sentenced to an aggregate sentence of 2 years and 9 months (33 months). This sentence is to date from 9 May 2023. After a period of 1 year 3 months (15 months) the offender is to be released on a recognizance himself in the sum of $1000 to be of good behaviour for a period of 2 years. The recognizance is conditioned that the offender: 1. Be of good behaviour and not commit any further offences; 2. Appear for sentence in respect of any breach within the specified period; 3. Accept the supervision and guidance of the Department of Community Corrections and obey all reasonable directions as to ongoing treatment and counselling for substance abuse and mental health conditions. 4. Notify the Registrar of this court of any change of address.
I make a reparation order in favour of the Commonwealth in the sum of $64,092.
The drugs in respect of the appeal matters are to be destroyed.
A copy of the most recent report of Mr Awit, Psychologist is to be forwarded to the Department of Corrective Services with the relevant warrant(s).
The ratio between the total sentence and the period in actual custody so far as the fraud matters are concerned is lower than what would otherwise be appropriate because of the issue of partial accumulation of sentences.
It is the court's intention that the offender be released after acknowledging the recognizance on 8 August 2024.

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: 20 December 2023

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Judgment (14 paragraphs)

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