R v Conroy

Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited: Bugmy v The Queen [2013] HCA 37
DS v R; DM v R [2022] NSWCCA 159
Faleafga v R [2016] NSWCC 178
Makouk v R [2023] NSWCCA 142
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
NK v R [2025] NSWCCA 73
Paterson v R [2021] NSWCCA 273
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Freeman [1999] NSWCCA 394
R v Henry (1999) 46 NSWLR 346
R v MAK & MSK [2006] NSWCCA 381
R v McNaughton [2006] NSWCCA 242
R v Simon [1999] NSWCCA 224
R v Stahl [1999] NSWCCA 160
R v Young [1999] NSWCCA 275
Veen v The Queen (No 2) (1988) 164 CLR 465

Texts Cited: n/a

Category: Sentence

Parties: Rex (Crown)
Jayden Conroy (Offender)

Representation: Counsel:
Ms. Patterson (Offender)
Solicitors:
Ms. Anoya (ODPP)
Ms. Tsang (Legal Aid)

File Number(s): 2024/341525 & 2024/353582

Publication restriction: n/a

JUDGMENT

1. The Offender is a 24-year-old indigenous Australian who committed these offences with the singular motivation of wanting to be arrested and returned to prison because he felt unable to cope with his life in the world while receiving NDIS funded support for only 11 of the 24 hours of the day.

2. The expert psychological and psychiatric evidence confirms his motivation to have been based in mental disorders and psychological dysfunction, the first in time of which being Foetal Alcohol Spectrum Disorder incurred in utero due to his mother's alcohol abuse.

3. The Offender is to be sentenced for the following offences:

4. Sequence H81542827 – 4: Robbery armed with offensive weapon against s 97(1) of the Crimes Act 1900 (NSW) (“Crimes Act”) – maximum penalty of 20 years’ imprisonment.

5. Sequence H81542827 – 1: Police pursuit – not stop – drive dangerously against s 51B(1) of the Crimes Act – maximum penalty of 3 years’ imprisonment; automatic disqualification of licence 5 years (minimum 2 years).

6. Sequence H81542827 – 3: Take & drive conveyance without consent of owner against s 154A(1)(a) of the Crimes Act – maximum penalty 5 years’ imprisonment.

7. H82152357 – 1: Robbery armed with offensive weapon against s 97(1) of the Crimes Act – maximum penalty of 20 years’ imprisonment.

8. In the fortnight prior to these events, the Offender told his support worker, who was also his assistant NDIS coordinator, that he was not coping in his life. He was told that his funding only permitted 11 hours of support per day.

9. He was not referred to a Local Mental Health Unit, or otherwise to professional medical assistance. The evidence is that he had previously voluntarily submitted to admission into a voluntary Mental Health Unit.

10. He was not receiving support in the evening and overnight. It is common ground that the offending occurred during the hours he was not funded for and therefore not receiving supervising support.

11. It is agreed that when arrested by police, the Offender immediately said that he committed the offences with the intention of going to prison. When he was not arrested following the offences of assaulting the taxi driver with a knife and causing a police pursuit with dangerous driving, he committed the third offence involving robbery with the screwdriver weapon at the service station to achieve his aim of being arrested and sent to prison.

12. In these unusual circumstances, the Crown does not submit that the offending was a planned criminal course, but does submit that the Offender did actually intend to commit the offences. That appropriate submission engages with the Agreed Facts that the taxi was recovered undamaged and there was no significant robbery; the taxi driver’s wallet was recovered in the vehicle and the money thieved from the service station was minimal.

13. There are no Victim Impact Statements. Neither the taxi driver, nor the service station attendant, suffered physical harm. The Crown properly submits, and I accept, that each of those victims was vulnerable in that they were alone and were physically forced into close contact with a weapon which would have communicated to them a potentially lethal consequence, and it is therefore likely that psychological harm was caused.

14. That said, the Crown accepts that its onus is to prove that psychological harm occurred beyond reasonable doubt and there is no direct evidence of the extent of it beyond that ordinarily to be accepted beyond reasonable doubt as a consequence for a victim being exposed to threat of potentially lethal action.

AGREED FACTS

Sequence ending 827-4 - Armed robbery in taxi

11. CCTV shows this horrifying incident which occurred in the early hours of 15 September 2024. The Offender entered the taxi of the Victim, Mr Kassim, via the front passenger seat. He produced a large kitchen knife, which he held to the side of the neck of the Victim who, on the Offender’s demand, handed over his wallet while under threat of serious harm. The wallet contained $125 in cash. On the Offender’s demand to do so, the Victim exited the taxi and the Offender moved to the driver's seat and drove away.

Sequence ending 827-1: Police pursuit - drive dangerously

12. When he was detected driving the stolen taxi by Police, he accelerated despite being directed to stop and initiated a dangerous pursuit along Military Road, Marylands. The Offender drove at speeds of up to 120 km/h in a 60 km/h zone. In the course of the pursuit, he crossed to the incorrect side of the road and narrowly avoided collisions with oncoming vehicles. Police terminated the pursuit due to safety concerns.

Sequence ending 827-3: Take and drive conveyance without consent of owner

13. The Offender’s theft of Mr Kassim’s taxi forms the basis of this offence. When the taxi was recovered by police, inside were the knife and the Victim's belongings including his mobile phone, house keys, $40 in cash and driver’s licence.

Sequence ending 357-1: Armed robbery with offensive weapon

14. On the afternoon of the same day as the other offences, the Offender entered Metro Petroleum Station at Lansdowne where Mr Varada, the Victim, was working alone in the store. CCTV shows the Victim sweeping or mopping when the Offender walked in and jumped on him from behind, taking him to the floor. The Offender then stood in a threatening, prone position with hands raised, as is colloquially described as "shaped up”, when the Victim stood.

15. In the course of those acts, the Offender physically restrained the victim before seizing a screwdriver (not shown on the CCTV) from a product stand and brandished it as a weapon. The Offender threatened the Victim and directed him to go into the cashier vestibule and, as the Offender stood by, to open the till. The Offender stole $382 cash and several packets of cigarettes.

Arrest

16. Following the police having recovered the taxi and the taxi driver’s belongings, the Police attended, on that day, a residential address where the Offender had voluntarily organised to hand himself in. The Offender readily made the admissions to which I have referred and explained his motivation as I have described, being his desire to return to prison. He remarked to police that "life is easier inside." He immediately admitted each of the offences, his abandoning of the taxi and that he used stolen money to purchase adult services and gamble. Following arrest, he declined a record of interview.

17. On 24 September 2024, Police attended Silverwater Correctional Centre and placed the Offender under arrest for the robbery in relation to Metro Petroleum. In relation to that offence, the Offender made admissions and participated in a recorded interview.

OBJECTIVE SERIOUSNESS

18. In my opinion, that the Offender’s motivation when committing each offence was to be arrested and returned to prison does not reduce the objective seriousness of the offending. While that was his reason for offending, it was not a state of mind causing or materially contributing to the offending. It was the reason behind his conscious choice to offend. That reason does not reduce the objective assessment of seriousness of the offending. It was not causative in the way that provocation or non-exculpatory duress might be in another case. It was a factor personal to the Offender, which is relevant to moral blameworthiness for the offending in the wider consideration of subjective matters, including his mental state: Paterson v R [2021] NSWCCA 273.

19. It is convenient to deal with the two counts of robbery armed with offensive weapon, an offence against s 97(1), first.

Sequence 827-4:

20. I disagree with the Crown's submission that this offending falls in the upper range of seriousness for offences of this type. In my assessment, this offending is objectively a moderately serious example of this inherently very serious type of offending.

21. With the assistance of R v Henry (1999) 46 NSWLR 346 ("R v Henry"), my assessment is based on appreciation that the large knife held to the side of the throat of the vulnerable taxi driver was very serious, but that:

22. there was no actual physical injury, as the knife edge was held but not pressed to cut the skin;

23. the Offender acted alone;

24. the Offender was not motivated by monetary gain or cruelty or some other serious malevolent purpose;

25. there is no evidence of any injuries suffered by the taxi driver Victim save as is accepted as the terror and psychological injury or insult inherent to this type of offending;

26. as the Crown properly concedes, there is no direct evidence of planning, albeit the Offender did not act wholly impulsively;

27. the Crown properly does not rely on premeditation as an aggravating factor, but rather views the offending as reflective of the Offender's mental state at the time;

28. the offending conduct was brief;

29. the actual monetary theft was minimal; and

30. the offending was not part of organised criminal activity.

Sequence 357-1:

22. I disagree with the Crown’s submission that this offending falls into the upper range of seriousness for offending of this type.

23. In my view, although the CCTV is not as dramatic as it is in the Sequence 827-4 event, this is principally because it was recorded from a greater distance and because the screwdriver is difficult to see. I make no differentiation of seriousness with the knife used in the offending ending in the sequence numbers 827-4 event because the screwdriver was a potentially lethal weapon which must have instilled fear in the victim. I do not assume the service station attendant’s fear to be less than was the fear of the taxi driver in that other offence.

24. Relying on R v Henry as guidance, I consider the use of the screwdriver to threaten the vulnerable victim was very serious. In addition, I take into consideration that:

25. the Victim was taken to the ground and then further threatened and intimidated by the Offender standing over him in a "shape up” stance, and the threat and intimidation continued as the Victim removed the money from the till;

26. the Offender acted alone;

27. the amount taken was small;

28. there was no physical injury suffered by the Victim;

29. the offending must have caused mental shock and horror at a level which is characteristic of this serious kind of offending;

30. the Crown appropriately concedes that there is no direct evidence of planning, but the Offender's conduct was not wholly impulsive;

31. the Crown appropriately does not rely on planning or motivation as aggravating factors, but rather submits that the offending was reflective of the Offender’s mental state at the time.

32. the offending was not part of an organised criminal activity;

33. while relatively short lived, the offending was of longer duration than the offending ending in the sequence numbers 827-4 event and involved the greater extent of actual violent physical engagement in the form of taking the Victim to the ground, a position of helplessness against an offender armed with a screwdriver; and

34. there is no evidence of actual contact or pressure of the screwdriver against the Victim.

35. Counsel for the Offender submits that the offending is a moderately serious example of offending of this type. While I agree, it is my assessment that the objective seriousness is slightly higher than for the offending ending in the sequence numbers 827-4, which involved the use of the knife against the victim taxi driver.

Sequence 827-1:

26. The danger of driving at twice the speed limit in a suburban area, and of crossing to the other side of the road, and generally that the danger was assessed by police as requiring the pursuit to be terminated, means that this offending was serious. I agree with the submission separately made by the parties that it falls below but toward the mid-range for offending of this type. I take into account that the Offender was not intoxicated, the conditions were fine and there were no collisions in the course.

Sequence 827-3

27. The taxi was not driven for a long period or distance and was abandoned undamaged. In my opinion, this offending falls into the lower range for offending of this type.

SUBJECTIVE CONSIDERATIONS

28. The seriousness of the subject offending, his significant antecedent criminal history and the unusual circumstances of the offending, being his want to return to prison in circumstances where his NDIS support was unavailable to him, are unique to this case.

29. The Offender was not motivated to harm victims or to financially gain in the instance of each offence but, rather, intended to be returned to institutionalised life so as to escape the outside world after he had asked for help to cope but had been denied support. In my opinion, this significantly reduces his moral culpability in relation to each offence. Independent expert medical opinion evidence supports that the Offender needed the help that he asked for and that the offending may not have occurred at all had he received that support. I must ultimately take into account these unusual factors surrounding the offending amongst all other considerations and arrive at a single result in relation to each offence and the total sentence and, by that instinctive synthesis, determine my value judgment: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [44].

30. Particular attention is required to the future opportunity for rehabilitation and risk to the community.

31. The Offender’s antecedent criminal history is significant, including prior police pursuit, destroying or damaging property, stalking and intimidating, custody of a knife, common assault and one offence of reckless wounding. The deprivations of the Offender’s early life, his complex mental health impairments, the opportunity and prospects of his rehabilitation and the future risk to the community are to be weighed with his present significant institutionalisation. By the time of offending, the Offender had spent approximately 2 years and 10 months in prison of his adult life of only 4 years and 9 months. Prior to that he was in Departmental care from age 13 years. In relation to the antecedent reckless wounding offence, the Offender told Mr Andrew Wong, clinical and forensic psychologist, that he stabbed a paedophile who tried to touch a girl.

32. The expert opinion evidence provided by Mr Wong, clinical and forensic psychologist, report dated 8 September 2025, Dr Dayalan, forensic psychiatrist, report dated 28 July 2025 and Dr White, forensic and clinical neuropsychologist, report dated 30 May 2023, consistently observes that the offending occurred in the circumstances of the Offender being provided inadequate support in the community for his complex mental health conditions and circumstances of deprivation from infancy and until adult life.

33. The report of Mr Shaik, occupational therapist, dated 8 June 2024, explains and identifies the Offender’s practical needs for assistance in everyday living which, if provided, will enhance the opportunity for him to benefit from mental health treatment and therefore improve his prospects of rehabilitation.

34. Dr White observes that the offender attempts "to express his need for recognition of his complex internal struggles and desire to ascertain assistance with same." He is a person of below average intellectual and cognitive capacity which circumscribes his ability to live with his complex mental health conditions.

35. There is no suggestion in the expert opinion evidence that the Offender lacks prospects of rehabilitation.

36. Dr Dayalan opined that, while the Offender presently poses a high risk of recidivism, he could be assisted in lowering his reoffending risk with treatment of his mental health conditions and engagement in rehabilitation and psychological support through NDIS.

37. Mr Wong reported with the benefit of having considered the reports of Dr Dayalan and Dr White, but also with the added information not available to either of them of a 30 minute telephone conversation with the Offender’s estranged mother to obtain the history of his mother’s pregnancy of him and early childhood history.

38. Mr Wong described the Offender’s current presentation as “infantile” and vulnerable to social influences.

39. The experts unanimously observe that the Offender demonstrates a level of insight and awareness of his behaviour cycle, with reduced insight into other areas such as cognitive distortions, and that his ability to regulate and control his thought distortions, in the moment, is significantly impaired. It is also unanimously observed that his self-control is diminished by his use of drugs and alcohol. He uses these substances as a maladaptive coping mechanism, in the way commonly observed in patients suffering complex post-traumatic stress disorder (“PTSD”).

40. Dr White assessed there to be a significant discrepancy between his intellectual functioning and adaptive skills, whereby his daily functioning is well below his measured cognitive abilities. Dr White observed that this is not uncommon in individuals with autism spectrum disorder (“ASD”), which diagnosis is observed in each of the reports of Dr Daylan, Dr White and confirmed in the report of Mr Wong.

41. I understand, from the expert reports that, with sufficient support when living in the outside community, supervision and treatment, the prospects for reduction of his present recidivism risk as explained by Dr Dayalan, and his opportunity to integrate into and remain law-abiding within the community, would be enhanced.

42. The Offender’s moral culpability is significantly reduced by the deprivations and hardships of his early life, to which I now refer in point form:

43. he is Indigenous;

44. he was born prematurely, having been exposed in utero to his mother's use of alcohol;

45. he was delayed in his early developmental milestones;

46. until 11 years of age, he was severely physically abused by both parents, including his mother beating him with a wooden spoon, a metal spatula, a jug cord and a belt;

47. at 11 years of age, his parents separated after which he suffered neglect from his mother, including being left to go hungry;

48. at 12 years of age, he experienced physical abuse by his father, witnessed physical abuse to his sister and witnessed his sister’s attempt to hang herself in consequence;

49. at 12 years of age, he was belittled by his father, including by being called "worthless”;

50. from 13 years of age to adulthood, his care was relinquished by his mother to the Department of Community Services from which he felt abandoned, given she retained the care of his siblings;

51. from 13 years of age he was institutionalised in the care of the Department including being placed in high needs residential 2:1 placement until aged 14, whereafter he was housed in a disability placement with two other children;

52. at 14 years of age he was introduced to antisocial lifestyles including drug and alcohol abuse and criminal behaviour by the other children in the placement;

53. at 15 years of age, he was physically abused by a carer who jammed him between a door and a wall, punched him in the face, threw him into the kitchen bench and fridge and placed a knee on his neck whilst continuing to punch him until he was saved by a second carer;

54. between release from the Department’s youth care placements at around age 18, he was homeless when he was not in jail;

55. he was educated until partial completion of year 11, but was regularly suspended for truanting and other behavioural issues, including fighting;

56. at 10 years of age, he was introduced to alcohol on special occasions by his mother and stepfather;

57. while in care from 14 years of age, he drank alcohol regularly, seeking intoxication to escape reality, make himself happier and repress memories and emotions;

58. at 10 years of age, his mother introduced him to cannabis consumption and by age 13 he smoked cannabis daily, which increased by such an amount that by 17 years of age he smoked 28 g per week and has continued to abuse cannabis when not in jail;

59. at 14 years of age, while in the Department's care, he commenced smoking methamphetamine daily and his drug use increased such that at age 16 he was using methamphetamine intravenously and recently in 2023 he was injecting methamphetamine at an amount of 1.2 g each day; and

60. from 14 years of age to 18 years of age, he also used ecstasy pills and LSD.

61. The Offender informed Mr Wong that after leaving school in year 11 he had lived a life of crime, albeit at age 16 he had worked three months in McDonald's and more recently had worked in a motor vehicle fit-out business for a few months, an air filtration business for a couple of days, bricklaying for a few weeks and with shipping containers for a couple of months. His longest term of employment was with a commercial landscaping business for 6 months during his most recent period in the community.

62. Despite his anxiety, vulnerability and disability, he enjoys prosocial influences in an individual referred to as Uncle Ben who works in aged care and is to the Offender a parental figure. Uncle Ben is a person the Offender met in jail at age 18 who is described as a good influence against offending. Uncle Ben regularly deposits money in the Offender’s prison account.

63. While in jail, the Offender is addicted to the prescribed opioid Buprenorphine (Buvidal).

64. In my opinion, some measure of context of the Offender’s coping with life in the community on the day of his instant offending is given by his statement that he wanted to return to prison, even though he was stabbed 11 times while incarcerated in January 2023, suffering a collapsed lung, a broken nose and black eyes. I think that shows the extent to which he felt unable to cope with his life in the community when provided with only 11 hours of NDIS support. As explained by Mr Wong, the Offender felt that jail was more like the residential care experienced by him through his childhood from about age 13 years. Further measure of this observation is provided by his requesting and being placed in non-association jail confinement. He finds people confusing in every aspect of life and told Dr Wong that he needs someone "telling me 24/7 how to live life." Dr Dayalan reported that the Offender requested non-association incarceration because he is anxious and paranoid when housed with other prisoners and that while incarcerated, he does not have the opportunity of work.

65. Prior to the offending, the Offender was voluntarily admitted to a psychiatric inpatient unit where he was retained for three weeks because he felt emotionally dysregulated and angry and was concerned that he would hurt himself or others. I think it lessens future risk to the community that he voluntarily requests care when needed.

66. With the limited NDIS hours of support the Offender was provided, he was smoking cannabis daily and had occasionally snorted cocaine and would binge drink alcohol on weekends. He struggled with the responsibilities of managing his household and finances. He worried about losing his temper and returning to custody on assault charges. He was feeling highly anxious and irritable, and felt that the world was too much for him. Despite smoking cannabis to assist with his mood and sleep, he continued to suffer from insomnia and anxiety, and experienced dissociative flashbacks during the day.

67. I understand that, prior to the current offending, the Offender informed his NDIS support worker, who is also his support coordinator, that he was not coping without more support. No action was taken to assist him, such as admission to a Mental Health Unit. He was told that there was not funding for more than the limited 11 hours of support that he was receiving.

68. The Offender is diagnosed to suffer the following mental health conditions:

69. Foetal Alcohol Spectrum Disorder;

70. Autism Spectrum Disorder;

71. Attention Deficit/Hyperactivity Disorder;

72. complex Post-Traumatic Stress Disorder;

73. Antisocial Personality Disorder with borderline traits; and

74. Stimulant Use Disorder (methamphetamine), severe, in early remission in controlled environment of prison.

75. The Offender’s early life deprivations and adversities and his social and economic disadvantages have contributed to his impaired regulation of emotions and behaviour which is relevant to his offending history. Accordingly, I think he is entitled to some degree of mitigation of sentence: Bugmy v The Queen [2013] HCA 37.

76. Dr Dayalan opined at [57]:

"The psychiatric conditions and associated functional impairment increased the risk of institutionalisation. Whilst in a correctional Centre, Mr Conroy preferred to be placed in isolation in view of heightened anxiety, stemming from complex PTSD and past traumatic experiences. Placement in isolation further fosters institutionalisation and impairs social skills. He has limited personal support in the community given strained relationships with close family members. Having spent a significant amount of time in the correctional environment, he has not acquired the requisite skills to function in the community…. [which has] played a key role in the offending behaviour. He had also been abusing substances and suffering from symptoms of complex PTSD that would have contributed to impairment of his judgement."

53. In my assessment, the expert opinion evidence clearly shows that the Offender suffers more onerous conditions while incarcerated than other prisoners. He is entitled to some reduction in sentence on account of that hardship.

54. The Offender’s reduced moral culpability for offending, explained in the expert opinion evidence, requires design of a sentence satisfying the requirements of section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP”) while providing punishment, denunciation of his crimes and a sentence that, at the same time, is designed to meet his personal rehabilitation needs.

55. In my opinion, because of his hardships in life, particularly his complex mental health conditions, the Offender is both a vulnerable person and a person who represents a risk when in the community, which risk is likely to be reduced if he is provided with adequate treatment and support.

SYNTHESIS

56. The parties’ submissions did not engage substantially, or indeed at all, with the issue of remorse. In the circumstances of the Offender’s limited insight into his offending, and his motivation being to escape the world by being incarcerated, that approach is understandable. As Dr Dayalan reported (at [26]), the Offender does regret his Offending behaviour, but feels it helped him return to custody. Nevertheless, recognising the harm done to the Victims and denunciation of the crimes are obviously relevant considerations.

57. It is put by each of the parties and, on the basis of the expert medical opinion, I agree, that the subject offending was not the product of premeditated criminal planning, but rather was reflective of the Offender’s mental state at the time. This is an appropriate starting point in the design of sentence.

58. The offending was not impulsive. The Offender knew that he was breaking the law. That appreciation was integral to his purpose of being imprisoned. The offences ending in the sequence numbers 827-4 and 357-1 are very serious types of offending, and so is the offence ending in the sequence numbers 827-1.

59. In respect of the offending ending in the sequence number 827-3, in the circumstances of recovery of the property and in the absence of an intention to steal, damage or harm property (except for a small amount of cash taken opportunistically), it is a less serious example of offending.

60. The armed robbery offences imposed horror on vulnerable victims. The police pursuit – drive dangerously offence risked serious collision, injury or even death with road users. That the Offender’s moral culpability was substantially mitigated by the unusual circumstance that his course of offending was driven by his mental-illness-founded desire to return to prison, rather than to harm any person or property, does not expunge the horror those victims personally experienced, nor the risk to the public by the dangerous driving during the pursuit.

61. I have found that his moral culpability was further reduced because his motivation to offend, being to achieve an institutional environment because he could not cope with life in the community while receiving the limited NDIS support, was a motivation to garner help arising after he had notified his support worker and NDIS coordinator that he was not coping and yet he was not referred to a local Mental Health Unit or otherwise to professional medical assistance, and was left untreated and unsupported for those hours of the day during which he offended.

62. The Offender is not only to be observed as institutionalised by the worryingly large portion of his adult life during which he has been incarcerated, but he also is assessed by the expert opinion evidence to have been institutionalised from his placements when in the care of the Department from age 13, such that he has not acquired the requisite skills to function in the community. His mental health impairments also cause him to require assistance with how to live when in the community. These are special circumstances weighing in the consideration of the period for which he might be incarcerated. It is in this context that the overall sentence and non-parole period must meet the obligation that the seriousness of the offending is satisfied for the purposes of section 3A of the CSP.

63. It is inherent in the observations of the expert medical witnesses that the Offender has demonstrated a level of insight and awareness of his behaviour cycle, though with a reduced insight into other areas such as cognitive distortions and his ability to regulate and control his thought distortions. If, in the moment, the Offender had the support recommended by the expert medical opinion, then it can be assumed that he would not likely have been consuming the drugs and alcohol around the period of the offending, as he was doing in his maladaptive attempt to cope.

64. Dr Dayalan observed that the Offender demonstrates some understanding of his mental health challenges and is willing to engage in treatment and rehabilitation.

65. I think that this just stated observation finds easy acceptance with the appreciation of the Offender’s history of institutionalisation. I repeat my earlier observation that his commitment to achieving placement in prison by the offending because of his anxiety and paranoia while living in the community without adequate support, and without the treatment medical experts recommended, was so strong that he pursued that motivation even though he had been savagely assaulted and stabbed 11 times during his preceding incarceration.

66. There is no evidence before me that the Offender has failed to take advantage of previously provided opportunities for rehabilitation in his adult life. He had previously voluntarily been admitted to a psychiatric inpatient unit because he felt emotionally dysregulated and angry and was concerned that he would hurt himself or others. In fact, only two weeks prior to the instant offending, the Offender asked his NDIS support worker to have him admitted to hospital because he was not coping, but he was encouraged to utilise his NDIS-funded support (Dr Dayalan’s report at [25]) On all of the evidence, the spree of offending on 15 September 2024 occurred in circumstances of the Offender having sought medical help, from which he was discouraged.

67. The Offender’s antecedent criminal history does not entitle him to leniency, but it provides, in the context of the expert opinion evidence, what I would understand to be a historical picture of how his cognitive impairment, mental health and institutionalised upbringing left him inadequately equipped to engage with life in the community in a law-abiding way compared to another person. For that reason, his antecedent history does not amount to an aggravating factor.

68. The expert opinion evidence supports the approach that, with the appropriate treatment and support, the chance of that antecedent criminality continuing should be reduced. As a result, his criminal history is not illuminating or an evidentiary basis for finding a measure of his moral culpability in the instant offending before me, nor should it be found that the offending was a manifestation of a continuing disobedience of the law warranting the imposition of condign punishment to shift him and other offenders from committing like offences: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-478; R v McNaughton [2006] NSWCCA 242.

69. I do find that incarceration is objectively more onerous for the Offender than for another person because, while he is less anxious when in the structured environment of prison, and his anxiety and paranoia of engaging with strangers is reduced by his non-association conditions as requested by him, the expert medical opinion is that those conditions re-enforce his institutionalisation. That is a negative consequence for him. He is, for instance, unable to work while in non-associate custody. I understand the expert medical opinion to mean that those conditions hamper, rather than enhance, his prospects of rehabilitation and reintegration into the community. It is an important consideration in the design of an appropriate sentence that the risk of further institutionalisation weigh heavily.

70. The principle of proportionality requires that the sentence should not exceed what is appropriate to the gravity of the crime, having regard to the objective circumstances. Proportionality is to be applied so that a sentence should not be less than the objective gravity the offence requires: R v McNaughton.

71. In my opinion, and in relation to each of the offences committed in the course of the spree of offending, the moral culpability or, as most recently termed by Justice Yehia as "moral blameworthiness” (NK v R [2025] NSWCCA 73), was substantially reduced by the set of clear factors identified in the expert medical evidence. The Offender’s reasoned motivation to offend, being an unusual purpose of achieving imprisonment, was a course of thinking attributable to his below average intellectual capacity and diagnosed mental illnesses, combined with his life of deprivation and institutionalisation, such that Mr Wong's expert assessment of his presentation was that he was "infantile" and "vulnerable." The overall expert assessment is that he had reduced insight, cognitive distortions and was significantly impaired, in the moment, in his ability to regulate and control his thought distortions.

72. These factors, in my assessment, clearly reduce the objective gravity of each of the offences for the purposes of application of “Bugmy” principles: DS v R; DM v R [2022] NSWCCA 159 at [91]-[93]; NK v R, per Yehia J at [101] (Ball JA and Fagan J agreeing).

73. The evidence shows that the trajectory of the deprivations suffered by the Offender throughout his life were not treated or mitigated. They continued to his present state of disadvantaged opportunity to live within the community. He requires a level of treatment and supervision to integrate into the community which has not previously been made available to him. On that background, his capacity to mature and to learn from experience was compromised and it remains a feature of his makeup relevant to the determination of the appropriate sentence, notwithstanding his history of offending: Bugmy at [43].

74. While recognising that the deprivations of his background do not have the same mitigatory relevance for all purposes of punishment, his early life exposure to violence and substance abuse have left him, particularly as a person of low intelligence and compromised cognition, at the time of the offending, inadequately equipped to deal with and control his impulse to escape the world by re-entering prison: Bugmy at [44].

75. The expert medical opinion is that adequate supervision and treatment through an extended parole be recommended. It would give the Offender the best chance of reintegration into the community as a law-abiding citizen, and at the same time benefit the community by reducing the risk of his reoffending. An important consideration is that he is of the relatively young age of 24 years, and therefore that opportunity should be taken as soon as the demands of proportional sentencing allow.

76. Specifically, the Offender’s impaired mental health and diagnosed mental illnesses at the time of the offending moderate the significance of the considerations of general deterrence and of retribution: NK v R per Yehia J at [105]. Separately, those factors also moderate the need for specific deterrence.

77. In my view, adjustment of the s 44 ratio of parole to non-parole period is required given the special circumstances that, with adequate treatment and support, he has reasonable prospects of rehabilitation.

78. I have considered, for comity of sentence, R v Stahl [1999] NSWCCA 160, R v Simon [1999] NSWCCA 224, R v Freeman [1999] NSWCCA 394, R v Young [1999] NSWCCA 275, Makouk v R [2023] NSWCCA 142 and Faleafga v R [2016] NSWCC 178 in relation to the Sequence 827-4 and 357-1 offences. In in each of those cases, the offenders presented with what might be called a strong subjective case.

79. In the most recent of those cases, Makouk v R, the offender grabbed the victim from behind around the neck when the offender was wearing a balaclava and holding a box cutter with a 10 cm blade in front of the victim's stomach. The offender’s motivation was theft and the victim's wallet; $415 and a credit card was stolen. The offender later attempted to use the credit card. The offender had suffered deprivations as a child and have been placed in the care of the Department of Community Services, was sexually abused, experienced disrupted schooling and witnessed, at a young age, the trauma of the younger boy being run over and killed. From a young age, the offender abused substances. The Court found that the offender had good prospects of rehabilitation and had demonstrated remorse. The indicative sentence was 3 years and 9 months’ imprisonment.

80. In my view, the case before me is distinguished from R v Makouk by the Offender’s motivation here having nothing to do with theft for monetary gain but rather a seriously misguided and mental-illness-driven want to be in prison, because of his inability to cope with the real world. The Offender’s subjective case here is, in my opinion, stronger than for the offender in R v Makouk.

81. In my opinion, an appropriate sentence in this case will take into account the reduced moral culpability and special circumstances which I have identified while still denouncing the conduct of the Offender, recognising the harm done to the Victims and the community and providing adequate punishment for the offences.

82. The common position is that the s 5 threshold has been crossed and there is no alternative other than full-time imprisonment.

83. I bear in mind the statutory yardstick of maximum punishment for each offence. The Sequence 827-4 and 357-1 offences are of a type for which the legislature provides very serious maximum penalties representing their seriousness.

84. I note that the Offender is entitled to a 25% discount for his early pleas of guilty: s 25D of the CSP.

85. It is appropriate to proceed by aggregate sentencing.

86. I deem the appropriate indicative sentences to be:

87. for Sequence 827-4, 2 years and 6 months' imprisonment (after application of the 25% discount for early guilty plea);

88. for Sequence 357-1, 2 years and 7 months' imprisonment (after application of the 25% discount for early guilty plea);

89. for Sequence 827-1, 5 months' imprisonment (after application of the 25% discount for early guilty plea); and

90. for Sequence 827-3, 2 months' imprisonment (after application of the 25% discount for early guilty plea).

91. In my assessment, each of the offences strongly comprehends the common criminality of the Offender's purpose, that being not to hurt, steal or damage but to be apprehended and to return to prison. All the offending was conducted in the course of a single spree of offending. The offences involve factually different criminal activities and different victims, and it remains necessary to ensure that the aggregation of all of the sentences is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26.

92. While mindful that I must maintain an appropriate relationship between the totality of the criminality involved in the series of offences, and the totality of the sentence to be imposed for those sentences, the measure of severity of a sentence is not simply the product of a linear relationship. Without double counting mitigation on account of institutionalisation and of special hardship while in prison, those factors bring to the forefront of mind the relationship of severity and length of term of imprisonment.

93. I understand the expert opinion evidence to describe the Offender as a person already possessed of feelings of hopelessness in relation to his ability to live lawfully while coping with the lack of structure of community life, and bear in mind that prolonged incarceration, including non-association conditions, serves his present feeling of hopelessness concerning living lawfully within the community and delays the opportunity of equipping him with the skills, and providing him with the support, that expert opinion evidence says he needs to achieve his rehabilitation: R v MAK & MSK [2006] NSWCCA 381. For those reasons, substantial concurrence is warranted.

94. The appropriate aggregate sentence is 2 years and 10 months’ imprisonment with a significant adjustment of the parole to non-parole period pursuant to s 44 of the CSP to accommodate the best opportunity for the Offender’s rehabilitation, which also gives the best chance of reducing the risk of reoffending, a matter highly in the interests of the community. I determine a single non-parole period for the offending of 1 year and 8 months.

95. It is appropriate that I backdate the Offender’s sentence to begin from when he entered custody on 15 September 2024, as he has remained incarcerated since.

ORDERS

92. In relation to the offending ending in the sequence number 827-4, the Offender is convicted.

93. In relation to the offending ending in the sequence number ending 357-1, the Offender is convicted.

94. In relation to the offending ending in the sequence number ending 827-1, the Offender is convicted.

95. In relation to the offending ending in the sequence number ending 827-3, the Offender is convicted.

96. The Offender is sentenced to a term of imprisonment of 2 years and 10 months commencing 15 September 2024 and expiring 14 July 2027.

97. The Offender must serve a non-parole period of 1 year and 8 months, and will be eligible for release to parole on 14 May 2026.

98. The Offender is disqualified from driving for a period of 2 years, commencing 14 May 2026.

99. I also recommend that:

100. the reports of Mr Andrew Wong, forensic psychologist, dated 8 September 2025, Dr Sathish Dayalan, forensic psychiatrist, dated 28 July 2025, Dr Amanda White, forensic psychologist and clinical neuropsychologist, dated 30 May 2023, and Mr Adam Shaik, occupational therapist, dated 8 June 2024, as well as the Comprehensive Behaviour Support Plan dated 9 October 2024, be provided to Corrective Services;

101. the Offender be trialled on non-stimulant medication for ADHD, such as Atomoxetine;

102. the Offender be trialled on antidepressant medication as indicated for treatment of his complex PTSD;

103. the Offender be referred to a Local Medical Officer for development of and maintenance of a Mental Health Care Plan;

104. the Offender regularly attend appointments with a psychiatrist to monitor his mental state and response to treatment;

105. the Offender be provided with psychological treatment incorporating teaching distress tolerance skills, and then proceeding to address the symptoms of complex PTSD through treatment such as trauma-focused Cognitive Behavioural Therapy;

106. the Offender be provided with motivational interviewing with a drug counsellor;

107. the Offender be assessed for 24/7 support through NDIS including, as required, 2:1 support with restraint-trained support workers;

108. the Offender remain abstinent of illicit substance use;

109. the Offender comply with the provisions of any Mental Health Care Plan provided by a Registered Medical Practitioner; and

110. the Offender comply with all reasonable directions and supervision of Community Corrections, including in regard to each of the above recommendations.

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