R v Cikar

FACTS

5. The facts are agreed for each of the substantive offences, and, in summary, are as follows, commencing firstly with the conceal offence. Those facts note, by way of background, that in June, 2024, police commenced an investigation into drug supply in Sydney, which was named Strikeforce Curch. As part of this investigation, an undercover operative was used who was exchanging text messages, up until 15 July, 2024, with an unidentified person, who I will call Mr X, in relation to drug transactions. The UCO and Mr X entered an agreement for the supply of 138.2 grams of methylamphetamine for the payment of $16,250.

6. On Monday, 15 July, 2024, just before 6pm, an unidentified person delivered 138.2 grams of methylamphetamine to the UCO at Lethbridge Street, Penrith, in exchange for $16,250 in cash. Some of the conversation relating to this transaction was recorded by the UCO. The methylamphetamine was seized, and when analysed, was found to be 80% pure.

7. At the time of this transaction, the offender’s movements were being observed by police. He was in the vicinity of where the transaction took place and was seen inside a white Hyundai, which was registered to his father. Police followed the Hyundai as it travelled from Lethbridge Street, Penrith, to premises at 8/97 Sherwood Road, Merrylands West.

8. It is agreed between the Crown and the offender that the offender was not Mr X and was not aware of the text messages between Mr X and the UCO. However, it is also agreed that the offender was aware of a drug transaction occurring in the vicinity of Lethbridge Street, Penrith, and that it involved a person known to him and another person who was not known to him. The offender, however, was not aware of more specific details or involved in the planning of the transaction, nor did he have any knowledge of the planning of the transaction. It is an agreed fact that, despite his knowledge of the drug supply transaction, the offender did not provide police with any information about it.

9. The offender was not arrested at the time of this transaction. However, on 4 December, 2024, police executed a search warrant at the premises in Sherwood Road, Merrylands West. After entry was gained to the premises, the offender was arrested. At the time, police located two mobile phones and some clothing. The offender was asked to provide the PIN access codes to the two mobile phones. This direction was made pursuant to a Digital Evidence Access Order which had earlier been issued at Parramatta Local Court at the time that the search warrant was granted. The offender refused to comply with the request to provide the PIN codes to the two phones, thereby failing to comply with the Digital Evidence Access Order.

10. He was arrested and taken to a police station where he declined to be interviewed. Those, in summary, are the facts relating to the conceal serious indictable offence matter, and also the matter on the Form 1 document attached to that first offence.

11. I turn then to the facts relating to the second substantive offence, which is one of assault occasioning actual bodily harm in company. This offence occurred on 28 February, 2025, at Shortland Correctional Centre, Cessnock. At the time, the offender, and all other persons to whom I will refer, were in custody at the correctional centre. The victim of the assault was Lachlan Woods, aged 29. The incident occurred in the exercise yard, where the victim was, at the time, walking. Initially, two men, Dalton Hough and Russel Rajapaske, walked up to the victim and appeared to engage in conversation with him. They were then joined by two other men, namely Luke Caban, and Cody Flood, while the conversation with the victim appeared to continue, as the group walked laps around the yard. The group was then joined by Brody Dalzell and this offender, while the group continued to walk around the yard.

12. At some point, Dalton Hough placed his hand into his pocket, removed an item, and placed it over his left knuckle area. After walking a few more steps, Hough turned in front of the victim, placing his hand across the victim’s chest, and then punched the victim once to the face. Hough then was seen to “bounce back and fourth in a boxer’s stance, and threw another punch to the victim’s face.” As this was occurring, the offender, Mr Cikar, punched the victim to the left side of the head with a closed fist, while the victim started to defend himself. At about the same time, another inmate, named Bowman, who shared a cell with the victim, entered the yard, while Hough tackled the victim to the ground. The offender then punched the victim to the back of the head, while Rajapaske and Dalzell moved into the melee, shaping to strike the victim.

13. However, at about this time, Bowman, the victim’s cellmate, punched this offender to the face. Hough and the victim fell to the ground, with the offender standing over them. The offender then grabbed the victim to the head and neck area and forced him backwards to remove him from Hough, who was underneath him. At this time, Rajapaske kicked the victim in the head, which caused the victim to fall onto his back. At this time, while the victim was on his back, the offender punched and kicked the victim multiple times, while at the same time Hough punched the victim multiple times, and Flood and Rajapaske kicked him multiple times. Although Caban shaped to kick the victim a number of times, he was unable to get close enough to strike him.

14. The victim got up and retreated from the group, but was then cornered against a wall. As this was occurring, Dalton Hough was seen, again, to reach into his pocket and retrieve an item which he placed over his right knuckle area. While the victim was against the wall, this offender, Mr Cikar, punched him several times and kicked him once, while Hough, Flood, and Rajapaske also punched him multiple times. The victim then stumbled towards a concrete bench, but was then dragged to the ground by the offender, and the offender then punched the victim and kicked him several times. The co‑offenders, Caban, Rajapaske, and Hough also engaged in punching and kicking the victim at this time.

15. There was then a short pause, during which the offender was yelling at the victim, who was on the ground. At that time, Corrective Services and officers of the Immediate Action Team, were preparing to enter the yard, while at about the same time, Hough returned and kicked and punched the victim to the head. After the assault, all inmates moved to a rear wall, as directed by the Immediate Action Team officers. Hough was seen to remove the item covering his knuckles and throw it over the fence. This item was later found by Corrective Service officers and found to be a gaol‑made set of knuckledusters. It is not suggested that this offender was aware of Hough being in possession of the knuckledusters, however, prior to the assault on the victim.

16. It is an agreed fact that the victim was significantly larger in size than the offender and the other alleged co‑offenders. None of the persons involved, including the victim, provided statements or interviews to police. As a result of the attack, the victim was admitted to the John Hunter Hospital, in Newcastle, for four nights, and sustained a number of injuries. Those included a comminuted nasal bone fracture, in other words a broken nose where the bone is fractured into multiple pieces; a small right pneumothorax, with “bilateral pulmonary contusions,” which is described as bruising in the lungs; thirdly, significantly pina swelling, that is to the area of the ear.

17. The facts note, however, that subsequent examinations, prior to the victim’s discharge, revealed that he had no issues with nasal obstruction or pain. His lungs were clear. He had no appreciable pneumothorax, and the swelling to his ear had resolved.

18. The offender, Mr Cikar, was formally arrested for the offence on 10 April, 2025. Those, in summary, are the relevant facts of the assault occasioning actual bodily harm in company offence. I note that the incident also was captured on CCTV, although that material was not shown to me.

OBJECTIVE SERIOUSNESS

19. It is necessary that I make an assessment of the objective seriousness of each of the offences before the court. Each of them carry significant periods of imprisonment, which marks them as potentially serious. That is especially the case with respect to the assault occasioning actual bodily harm in company offence.

20. Commencing with the conceal offence, I make the following observations and findings. This offence involved the offender failing to inform police of his knowledge about a relatively serious drug transaction. There is, however, no suggestion that the offender was, himself, a party to the drug transaction or that he knew specific details about the agreement to supply, or the actual supply itself. While the underlying offence of supply was a serious one, itself carrying a maximum penalty of 15 years imprisonment, it is by no means the most serious type of offence to which s 316 of the Crimes Act can apply. As was submitted for the offender, the underlying supply offence involved a supply to an undercover officer, and so there was no direct harm arising from the drugs being supplied. It would appear, therefore, that the offender’s silence about his knowledge of the offence, fortunately does not appear to have itself caused any direct harm to the community. There are no aggravating circumstances relied upon by the Crown in relation to this offence, and I assess the offence as being towards the low range of objective seriousness. This offence was committed while the offender was on conditional liberty in the form of parole. This does not increase the objective seriousness of the substantive offence, but it is an overall aggravating matter in the sentencing exercise to which I have had regard.

21. There is also, as I have noted, a Form 1 document, with an agreed matter on it of failing to comply with a Digital Evidence Access Order direction. Form 1 matters do not increase the seriousness a substantive offence. However, they can be taken into account, in an appropriate case, by increasing the sentence by giving greater weight to personal deterrence and retribution for serious offences. While the matter on the Form 1 is not an overly serious offence, I am satisfied that it is appropriate to increase the penalty for the substantive offence, given that the Form 1 involved a separate act, separated also in time from the substantive offence, and given the need for personal deterrence.

22. Turning then to my assessment of the seriousness of the assault occasioning actual bodily harm in company offence. This offence carries a substantial maximum penalty of seven years imprisonment. However, it is important that I look at the particular circumstances of the offence that this individual offender committed. In his evidence on sentence yesterday, the offender effectively asserted that the offence involved his having “reacted” by becoming involved in a “fight,” which had broken out between others.

23. However, in my view, this is not consistent with the Agreed Statement of Facts. Based on those facts, I strongly suspect that this was a pre‑planned targeted attack on an individual by numerous men, one of whom was this offender. However, given that this would be an aggravating feature, and also not one that the Crown pressed on me, it is not a matter of which I can be satisfied beyond reasonable doubt, and so I put this strong suspicion aside.

24. Nonetheless, it is, in my view, a considerable understatement to describe the offender’s role in the melee as being a reaction to a “fight.” A “fight” is suggestive of a physical confrontation which has some level of mutuality about it, or some level of “fairness,” if that is the right word. The agreed facts, however, in this case, point to a situation where the victim was set upon by five men, one of whom was this offender. While it was not this offender who started the incident, he very quickly joined in the attack by punching the victim to the head without any apparent provocation by the victim. The offender then continued with the attack on the victim, along with the other attackers, and punched and kicked the victim many times, even though the victim was heavily outnumbered. While it might be assumed that the victim, who apparently was a larger man than the offender and the other offenders, had engaged in some sort of provocation, there is no evidence of what this might have been, and so I put the suggestion aside. What I am left with, therefore, is a situation where one man has effectively been set upon by multiple others, which demonstrates that this was a cowardly assault.

25. As I have just noted, the offence was committed “in company.” This is not, however, an aggravating factor, because it is an element of the offence. However, an “in company” offence is capable of being made out by a person being in company with just one other person. The objective seriousness of the offence now before the court is therefore increased, by reason that the offender was in company with four other persons, which would have increased the intimidation experienced by the victim, and increased the physical violence which he faced. Also, the assault was not brief, but went on for some time, with numerous opportunities for the offender to desist.

26. On the other hand, the evidence does not permit me to reach the conclusion that the offence was sophisticated or involved planning. The injuries suffered by the victim were significant, but, fortunately, not of a permanent nature. While the injuries did not amount to grievous bodily harm, they were, in my view, towards the higher end of actual bodily harm.

27. It is also relevant that the offence was committed while the offender was in custody, with the obvious disruption that this would have caused in the good management of the correctional centre.

28. I specifically record that I have not taken into account, in assessing the objective seriousness of the offence, the fact that some knuckledusters were used by one of the assailants, given the Crown concession that this offender was not aware of them.

29. I assess the objective seriousness of this offence as being near the mid range.

30. An offence of affray is to be taken into account in sentencing for the assault offence. However, I am of the view that there is very considerable overlap between these two offences, and therefore, in my view, the Form 1 matter ought not increase the penalty to be imposed for the substantive offence.

SUBJECTIVE MATTERS

31. Turning then to subjective matters relating to the offender himself. I have fairly limited material relating to his background and recent and current circumstances. It would appear, however, based upon the offender’s own evidence and that of his father, who each gave evidence yesterday, that he has come from a fairly stable family background. There is no evidence suggesting that he was the subject of abuse or exposure to domestic violence or drugs or excessive alcohol usage. He is now aged 31. His criminal history does not assist him, and he has spent a significant period of his young adult life in custody.

32. I have a letter from the offender’s fiancé, who makes observations of a positive nature about the offender, and confirms her support for him and their intention to marry. I also have a letter from the offender, and, as I have said, he gave evidence in the sentencing proceedings yesterday. In his letter and in his evidence, the offender expressed his regret, and apologises for his offending, and accepts that he has done wrong. He says that in custody, he has been appointed to the relatively trusted position of sweeper, which involves some responsibility and trust. He confirmed that he has a seven year old daughter, who is technically in his care, but presently being cared for by his sister and his father. The offender says that he is motivated to stay out of trouble so that he can take responsibility for his daughter. The offender also said, in evidence, that he has “turned a corner,” and wants to avoid offending in the future. In particular, he says that he is motivated not only by his daughter, but also by his wish to do the right thing by his mother who passed away in 2016, and also do the right thing by his father, who wishes to retire and have the offender take over the running of his restaurant. The offender’s father gave evidence and confirmed his support for the offender and his wish that the offender should take over the restaurant.

33. I accept that the offender is genuine in his expressed wishes and intentions. However, the real test for the offender will be once he is released. It will be at that time that he will again be subject to the temptations and influences that he has, to date, given in to, and which have led to his spending much of his adult life behind bars.

REMORSE

34. The offender has expressed remorse in his letter to the court and in his oral evidence yesterday. I accept that this is genuine.

RISK AND REHABILITATION

35. The offender’s criminal history, and the fact that the assault occasioning actual bodily harm offence was committed while he was in custody, are matters that point to his being a continuing risk of reoffending. As I have earlier said, I accept that the offender genuinely wants to avoid returning to custody. I also accept that there are positive factors. These include his satisfactory response to supervision prior to his arrest. They also include the support of his family, and his fiancé, and his wish to look after his daughter. However, most of these supposed motivators were present at earlier times, and yet, the offender continued to offend. I am left with the conclusion that the offender remains a significant risk of reoffending. At best, his prospects of rehabilitation are guarded.

DETERMINATION

36. Turning then to my ultimate determination. I have had regards to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. All of those matters are of relevance in this case.

37. I am satisfied, for the purposes of s 5 of the Crimes (Sentencing Procedure) Act, that no penalty other than one of imprisonment is appropriate for each of the offences. The conceal offence, if taken on its own, would perhaps not meet that description of requiring a period of imprisonment. However, given that I will be imposing a sentence of imprisonment for the assault offence, it is appropriate, in my view, to also come to the conclusion that s 5 is passed in relation to the conceal offence.

38. I intend to impose an aggregate sentence, given that there are two matters to be dealt with. It is necessary, therefore, that I set out the indicative terms for those two offences, which otherwise would have been imposed. In determining the indicative terms and the ultimate aggregate sentence, I have had regard to the fact that all offences are capable of being dealt with in the Local Court. This is of some significance in relation to the “conceal” offence, which in other circumstances would likely have remained in the Local Court. However, the availability of Local Court jurisdiction is, in my view, of little relevance in relation to the assault occasioning actual bodily harm offence, given that its seriousness dictated that it should appropriately be dealt with in this court.

39. As I have said, I intend to impose an aggregate sentence. It is necessary, therefore, that I set out the indicative terms for each of the two offences, and I will do that in just a moment. Each of these indicative terms are arrived at after taking into account the 25% discount for the pleas of guilty, and also taking into account the Form 1 matters.

40. The indicative term for the conceal serious indictable offence is four months imprisonment. The indicative term for the assault occasioning actual bodily harm in company is two years, three months imprisonment.

TOTALITY

41. I have given consideration to questions of concurrency and accumulation; in other words, the totality principle. In my view, there ought to be some degree of notional accumulation between the two indicative terms, so as to acknowledge the fact that they relate to quite separate offending. However, I accept the Crown’s submission that the degree of notional accumulation ought to be limited.

42. I have made a finding of special circumstances for varying the ratio between head sentence and non‑parole period. I have reached that finding based on the need for the offender to be monitored once he is released from custody, and monitored for a reasonable period of time, and secondly, the risk of institutionalisation.

43. The offender is convicted of both offences.

44. I have also given consideration to the commencement date for the aggregate sentence that I will impose. The offender has been in custody since his arrest on 4 December, 2024, for the offence of conceal serious indictable offence. He was arrested and refused bail, in relation to the assault occasioning actual bodily harm offence, on 10 April, 2025. However, his time in custody, since 4 December, 2024, has not been due solely to either of the offences before the court. That is because, on 18 June, 2025, the State Parole Authority made an order revoking his parole for an earlier sentence. That revocation was backdated so as to be effective from 4 December, 2024, and, it was on 28 February, 2025, that the offender committed the assault occasioning actual bodily harm offence.

45. Submissions were made by the parties, as to the relevance of s 56 of the Crimes (Sentencing Procedure) Act 1999, in these circumstances. That section provides, effectively, that where an assault type of offence is committed by a “convicted inmate of a correctional centre,” the sentence for that offence is to be served consecutively, ordinarily, with any existing sentence. The agreed position between the parties, with which I agree, is that at the time of the assault occasioning actual bodily harm, the offender was not a “convicted inmate,” because, at that time, his custody was due only to being bail refused, given that his parole had not, at that time, yet been revoked.

46. Nonetheless, and as also agreed, the policy behind s 56 is still relevant. See Kuruppu v R [2021] NSWCCA 261 [at] 181. This policy is of relevance in the exercise of my discretion as to the extent to which the sentence I am to impose ought to be backdated. It would, in the exercise of that discretion, be open to commence the current sentence from the expiry of the offender’s parole on 2 October, 2025, or, alternatively, at some earlier date going back as far as 4 December, 2024, when he was initially arrested.

47. Having regard to all matters to which I have referred, and to the policy in s 56, I intend to backdate the sentence by approximately one third of the period between 4 December, 2024, and 2 October, 2025, which, in round numbers, I will treat as being about 100 days. The sentence, therefore, will commence on 24 June, 2025.

48. I impose an aggregate head sentence of two years, five months. I impose a non‑parole period of one year, seven months. The head sentence, therefore, will expire on 23 November, 2027. The non‑parole period will expire on 23 January, 2027.

49. Mr Crown, Mr Hallas, anything to raise?

50. HALLAS: Not at my end, your Honour.

51. KANAKARATNE: No, your Honour. Thank your Honour.

52. HIS HONOUR: Yes, alright, thank you.

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