R v Hardes

The facts regarding counts 1 and 2

1. The Crown case presented at trial, which I am satisfied the jury by its verdict accepted beyond reasonable doubt, was that as at 11 June 2017 the victim Shannon Schievink resided in premises at North Nowra. Three other persons also lived at those premises. The victim's bedroom was at the rear of the house. The evidence allows me to conclude that the victim was extensively involved in the supply of illicit drugs in the Nowra area, and that he sold those drugs from the subject premises.
2. At about 10:30am on 11 June 2017 the offender and Benjamin Hand, who were both users of illicit drugs, and particularly methylamphetamine, were at a taxi rank in Nowra. At that time the offender waved down a woman he knew who was driving past. The offender asked her to drive him and Hand to North Nowra for the cost of a taxi fare. She agreed to do so. Her partner at the time was also in the car. The offender first directed her to a unit in East Nowra where both he and Hand went inside before returning a short time later. At the direction of the offender she then drove him and Hand to North Nowra. There she was further directed by the offender to park her vehicle in the driveway of a house. The offender and Hand again exited the vehicle. They entered this house for a short period of time, before returning to the vehicle and asking the driver to wait for them. The offender and Hand then walked up the street out of sight.
3. At approximately 11:00am the offender and Hand entered the premises of the victim via a rear sliding door. They approached the victim's bedroom and the offender knocked on the door. The victim was woken by the knocking, got out of bed and opened the door. He observed two men who he knew as Nick (the offender) and Ben (the co-offender). The offender entered the victim's room and Hand followed. Both men were armed with firearms. The offender's firearm was in working order and it was not in dispute in the trial that some short time later that morning, he discharged it. This firearm has never been recovered. The firearm possessed by Hand was not capable of discharging and was, in effect, a replica firearm. It was later recovered buried in Hand's backyard.
4. By his plea of guilty to count 1, the offender admits that he entered the victim's premises with the intention of robbing him of drugs, whilst both armed and in company, and further that at the time of entry he intended to take property from the victim's possession either by actual violence, or by putting him in fear of actual violence.
5. The evidence revealed that the offender had telephoned the victim the night before this incident seeking to purchase illicit drugs. The victim had told him that he had no drugs to sell. As a result the victim did not expect the offender to attend his house in the way that he and the co-offender did. It seems clear that the offender did not believe what the victim had told him concerning his inability to supply the drugs that he sought. In any event, after the offender and Hand entered the victim's room, the victim saw the offender produce an amount of cash. The victim said that he told both men that he had no drugs to sell, and turned away before being struck on the head with a blunt instrument by one of them. He said this blow also struck him on the shoulder. The victim said that it was the offender who struck him. He said that he fell to the ground and that he was unsure if he lost consciousness for a period of time. The Crown case was that during this time, while the victim was on the ground, a melee ensued and the victim was stabbed twice, once in the middle of his chest and once in the lower left side of his abdomen. The victim did not recall being stabbed and was not able to offer any direct evidence concerning who had in fact done so. The offender said that it was Hand who stabbed the victim. That was consistent with the Crown case and was also consistent with the agreed facts upon which I had earlier sentenced Hand. I accept that this is what occurred.
6. There was a dispute in the trial as to whether the victim was in fact struck on the head and if he had been, whether this offender was responsible for that act. The offender's evidence was that he did not do so, and the submission of his counsel Mr Warr, is that I would not be satisfied beyond reasonable doubt that he did, for the following reasons: Firstly, the absence of any injury to the victim's head. It was submitted that a blow with a blunt instrument that possibly rendered the victim unconscious would have resulted in some injury. Secondly, the fact that the victim told the attending ambulance officer that there had been no loss of consciousness. Thirdly, the absence of blood on the bedroom floor is not consistent with the victim being stabbed whilst lying there unconscious. Fourthly, the victim told Constable Hogden, the first police officer on the scene, that he had been punched in the stomach before realising he had been stabbed. Fifthly, the injuries suffered to the victim were to the front of his body. The submission was made that if he had been hit to the back of the head, he would have likely fallen to the ground on his stomach. It was suggested that the injuries to the front of the victim's body are more consistent with the original version he gave to police, that the injuries occurred whilst punching took place, and further that I would infer that he was standing at the time he was stabbed rather than on the ground following a blow to his head. Sixthly, the victim told police on the day following the incident that he was punched and that he had punched back. During his cross examination at trial, when challenged as to the discrepancy between his evidence and what he had told police, he said that what he had told police, was a lie. This evidence necessarily impacts on my assessment of the victim's reliability concerning this aspect of his version of events.
7. I accept the submission of the offender's counsel concerning this aspect. When the matters relied upon by him are considered in combination, I am not satisfied beyond reasonable doubt that it was the offender who struck the victim to the head with a blunt instrument as Mr Schievink suggested in his sworn evidence.
8. What is not in any doubt is that while present in the victim's room, both offenders produced the firearms in their possession and pointed them at the victim. I accept what the victim said as to this. It would defy common sense, if having armed themselves with firearms prior to entry into the victim's room, the offenders did not brandish them towards him in some way. I further accept that this conduct would, as Mr Schievink said in his evidence, have caused him great fear. Shortly after the victim was stabbed, both the offender and Hand fled the premises via the back door. The Crown case at trial, which the jury by its verdict accepted beyond reasonable doubt, was that the offender was part of a joint criminal enterprise with Hand in respect of the commission of the offence of wounding with intent to cause grievous bodily harm.
9. Further interaction between the victim and both offenders then ensued. Two firearms were discharged, one by the offender and one by the victim. Police and ambulance officers then attended the scene. The victim was treated for his injuries and was then airlifted to St George Hospital. The stab wound to the middle of his chest was of a relatively minor nature. The stab wound to the victim's lower left abdomen was more serious as it had penetrated the abdominal cavity and required surgery.
10. The offender was arrested on 13 June 2017 and bail was refused. He has remained in custody since that time.

The facts regarding count 3

1. In March 2017, Shoalhaven Local Area Command established Strike Force Arctic to target the supply of prohibited drugs in the Nowra area. On 10 April 2017, an Assistant Commissioner of Police authorised a controlled operation. At about 9:35am on 7 June 2017 police attended a pre-arranged location in the Nowra area where they met with an undercover operative known as Chris. He was provided with $1,900.00 and recording equipment. At about 9:45am, Chris made two telephone calls to a female known as Alison. These calls went unanswered. Two subsequent text messages from Chris to Alison also went unanswered. At 10:38am, Chris drove to Alison's premises in East Nowra. Alison did not open the door. Chris again telephoned Alison and she told him that she was inside the house and would open the door. A short time later Alison did so and Chris had a conversation with her which was electronically recorded. She asked that he wait at her home while she went around the corner to see if a person named Daniel could supply her with "two balls". When Alison returned to the house she told Chris that Daniel was not home and she was unable to supply the drugs.
2. At about 11:15am Chris received a telephone call from Alison who told him that she had "a male" who could access the two balls that he required. She asked him to return to her house and he did so at about 12 noon. Shortly thereafter, Chris observed Alison to exit her house in the company of the offender who introduced himself as "Nick". The offender and Chris had a conversation during which the offender directed Chris to drive towards an address in North Nowra. On arrival, Chris parked his car. The offender asked Chris for money to purchase the drugs and Chris provided him with $1,800.00. The offender counted the money before exiting the vehicle and walking east. At about 12:30pm the offender returned to the vehicle and advised Chris that he had been unable to obtain the drugs. He then directed Chris to a park in North Nowra. On arrival there, the offender again exited the vehicle and walked through the park in an easterly direction. At around 1:20pm the offender returned and advised Chris that he had obtained the drugs. He then directed Chris to drive back to Alison's house. At about 1:33pm Chris parked his vehicle in Alison's driveway and the offender handed him four clear resealable plastic bags containing 6.9 g of methylamphetamine with a purity of 46%. The offender was interviewed by police in respect of this drug supply matter on 10 October 2017. He was charged on 12 June 2018.

General principles and the objective seriousness of counts 1 and 2

1. As I have already noted, it is necessary for me to consider each offence and assess its objective seriousness. What is absolutely plain is that each of counts 1 and 2 is extremely serious. So much is clear from the maximum penalties prescribed by the Parliament and, in the case of the wounding with intent matter, the fact that the Parliament has seen fit to prescribe a standard non-parole period.
2. Turning firstly to the offence of enter dwelling with intent to commit robbery while armed and in company. The offending was planned and deliberate. It involved the offender enlisting and then directing others to transport him and his co-offender to the victim's premises and having them wait nearby while the offending took place. As I have already observed, the weapon with which the offender was armed was in working order, was pointed at the victim during the course of the incident and has not been recovered. The nature of the serious indictable offence subject of a charge under section 111 of the Crimes Act is an important matter to take into account in sentencing for an offence of this type. Here, the offence was robbery, being one which is, in and of itself, a most serious type of criminal behaviour. Offences of robbery have long been regarded as of utmost seriousness. Consequently, general deterrence is a very important sentencing consideration and Courts are required to send a clear message that behaviour of this type is to be regarded seriously and will be punished meaningfully.
3. I note that violence was perpetrated upon the victim during the course of the robbery. That violence, however, is the subject of a separate count, being count 2, for which he is to be sentenced. That being so, I do not propose to take that violence into account in my assessment of the objective seriousness of count 1. To do so would potentially result in the impermissible double counting of that violence.
4. The offending is aggravated by the fact that it occurred in the home of the victim: s. 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999. Mr Warr submitted that this factor should be balanced by the context of the victim choosing to operate a drug dealing business from his home. I was not directed by him to any authority that limits this aggravating factor in the way contended, nor does the language of the section support it. In fact, the section extends this aggravating factor to include where the offence occurred in the home of "any other person" and that is certainly the case here. I do not accept this submission by Mr Warr. Notwithstanding the type of conduct that the victim was engaging in from within the home, he was entitled to reasonably expect that he would be safe and secure within his property from armed intruders like the offender and Hand.
5. I have regard to the fact that it was the offender who flagged down the driver, that it was he who provided directions to her as to where to drive and where to park, and that it was he who knocked on the victim's door and entered his bedroom ahead of the co-offender. The evidence of the driver was that it was the offender who did the talking whilst in her car on the way to the victim's premises, while the co-offender remained silent. In my view, there can be no doubt that this offender was the primary instigator in him and his co-offender entering the victim's home, whilst armed and intending to rob him of drugs. I also bear in mind in making this finding, that it was the offender who had on the previous evening, made contact with the victim seeking to source drugs. I do not accept Mr Warr's submission to the contrary.
6. Count 1 is inherently more serious due to the fact that it was planned. The common law has long recognised premeditation or planning as a factor to be taken into account in weighing the seriousness of an offence: R v Morabito (1992) 62 A Crim R 82, at [86]. The offender and his co-offender deliberately and purposefully attended upon the victim with the intention of robbing him. This offence did not happen by chance. It was not opportunistic, impulsive or committed spontaneously. This fact is clear, if for no other reason, than that both offenders armed themselves before attending at the victim's home. Mr Warr submitted that the offender did not engage in any significant planning beyond what would ordinarily be expected for an offence of this type. He suggests that the decision to commit the offence was made shortly before it occurred in that it did not exhibit "professional planning, organisation and execution". To the extent that his submission is that the degree of planning here does not reach the level required for it to be a specifically aggravating factor within the meaning of section 21A (2) (n) of the Crimes (Sentencing Procedure) Act, as explained by the Court of Criminal Appeal in Fahs v R [2007] NSWCCA 26 and Williams v R [2010] NSWCCA 15, then I accept it. That is not however to say that there was no planning at all.
7. An issue arose during the course of sentencing submissions concerning count 1 as to whether the victim took possession of a firearm inside his bedroom while the offenders were still present there. The Crown in his submissions and in reliance upon the evidence of the victim, suggested that he did not. Mr Warr suggested that the victim's evidence was not reliable and that I would find that the victim had in fact armed himself inside his bedroom. The evidence in the trial does not allow me to comfortably resolve this conflict. In any event, whether the victim was armed inside his bedroom at any time during the incident, does not impact upon my assessment of the objective seriousness of this offenders conduct in respect of count 1, as it is beyond doubt that the behaviour of the offender had come to an end prior to there being any suggestion of the victim being armed. That is, the crime to which the offender pleaded guilty had been completed, such that any subsequent conduct by the victim does not affect an assessment of objective seriousness.
8. I determined when sentencing Hand for count 1 that the objective seriousness of his offending fell at a point below the mid-range of objective seriousness for offending of this type. In my assessment the objective seriousness of this offender's conduct is, after allowing for the fact that I cannot be satisfied beyond reasonable doubt that he struck the victim with a blunt instrument, and balancing that against my conclusion that he was the prime mover behind the offending, at or about the same level as that of Hand, being below the mid-range of objective seriousness for offending of this type.
9. I must next consider the objective seriousness of count 2. As I have earlier observed, the maximum penalty and the standard non-parole period prescribed by the Parliament provide clear legislative guideposts for the court as to the seriousness of offences of this type. General deterrence is an important sentencing consideration. The fact that the maximum penalty of 25 years imprisonment is the highest penalty prescribed by the Parliament short of life imprisonment confirms the high level of seriousness for this type of offending. Such offending encompasses a wide range of criminal conduct and a wide range of potential consequences for a victim. Here, the victim was stabbed twice in circumstances where he was not initially aware that he had been stabbed at all. The injuries sustained by him and the potential consequence of those injuries were serious and he was required to be airlifted to Sydney for emergency surgery. Thankfully, he appears to have made a complete physical recovery from his injuries. The fact that the injuries sustained were serious elevates the objective gravity of the offence. Because a wounding need not involve the use of a weapon, the fact that a knife was deployed aggravates the objective seriousness, as does the fact that this was again an offence committed in the home of the victim and in company, in circumstances where being in company is not an element of the offence. The degree of harm intended is also of significance in assessing the objective seriousness, as is the fact that the jury by its verdict accepted beyond reasonable doubt that the offender must have foreseen his co-offender stabbing the victim and exposing him to a very grave risk of harm. There can be no doubt that in using a knife to stab the victim in the way he did, Hand intended to cause him really serious harm, and that this offender foresaw the risk of that occurring.
10. The Court of Criminal Appeal has often observed that the use of a knife is a feature that aggravates the seriousness of an offence, involving as it does an increased level of danger and harm being occasioned: R v Dickinson [2004] NSWCCA 457 at [23]. Any assault involving the use of a knife is one that calls for the imposition of a significant sentence as a matter of both general and specific deterrence: R v Watt (unrep, 2/4/97, NSWCCA). Knives can be easily concealed and it is that fact, amongst others, which make them so dangerous.
11. In sentencing the offender for this offence I cannot lose sight of the fact that while he and his co-offender were acting as part of a joint criminal enterprise, it was Hand who in fact stabbed the victim. Different offenders within a joint criminal enterprise are not necessarily to be regarded as having the same objective criminality, and an assessment of their respective culpability will depend on their various levels of participation. In Johnson v R, Moody v R [2010] NSWCCA 124, Simpson J observed at [11]; "In my opinion, when sentencing co-offenders engaged in a joint criminal enterprise, some caution needs to be exercised in drawing fine distinctions between what each actually did"
12. Her Honour further observed at [13]; "that, where two or more offenders participate in a joint violent crime, it might well be appropriate to differentiate between them by reference to the level of violence actually inflicted by either or any of them."
13. Mr Warr submitted and the Crown conceded, that given the fact that it was Hand who stabbed the victim, the objective criminality of this offender for this offence is at a lower level than that of his co-offender.
14. I accept the submissions of both Mr Warr and the Crown in this regard. At the time that I sentenced Hand, I assessed the objective seriousness of his offending as falling at a point slightly below the mid-range of objective seriousness for offences of this type. I would assess the objective seriousness of this offender's criminality as falling at a point below that of Hand, but not so far below it as to be within the low range of objective seriousness, as was contended by Mr Warr.

General principles and objective seriousness of Count 3

1. Consistent with what the Court of Criminal Appeal said in R v Parente [2017] NSWCCA 284, sentencing in drug supply cases must be approached having regard to general sentencing principles, including that a sentence of imprisonment should not be imposed unless having considered all other alternatives, no other penalty is appropriate. That is, a sentence of imprisonment is one of last resort. In Parente, the Court of Criminal Appeal emphasised the following matters to which sentencing courts must have regard in drug supply cases: 1. The purposes of sentencing in section 3A of the Crimes (Sentencing Procedure) Act, and particularly matters of both general and specific deterrence and the protection of the community. A consistent message of deterrence where drugs are supplied is necessary. 2. Protection of the community will usually be a significant factor to be taken into account given the social harm occasioned by drug supply and the link that such conduct has to other criminal behaviour. 3. The high level penalties fixed by the Parliament for the supply of drugs are legislative guideposts in assessing the seriousness with which such offences are to be viewed.
2. Courts have repeatedly stressed the need for deterrent sentences to be imposed in cases involving the supply of drugs. Illicit drugs cause great harm in our community and persons who seek to benefit financially or in other ways must expect significant punishment.
3. Here, the drug supplied by the offender was methylamphetamine. It is relevant to bear in mind the quantities of that drug that the Parliament has prescribed as falling within the various escalating categories of culpability set out within the Drug Misuse and Trafficking Act. The small quantity of the drug is 1 g, the traffickable quantity is 3 g, the indictable quantity is 5 g, the commercial quantity is 250 g and the large commercial quantity is 500 g. The quantity for which this offender is to be sentenced, being 6.9 g, is in an amount slightly more than the indictable quantity. I have noted these figures to contextualise the quantity of drug with which the offender was involved. In considering the quantity of methylamphetamine supplied, I am mindful of the fact that it is towards the lower end of the amount of the drug that is dealt with in this Court, and is in an amount that is capable of being dealt with summarily. Had it been dealt with as a stand-alone offence in the Local Court, then the sentence of imprisonment open to be imposed would be limited to one of 2 years, being that court's jurisdictional limit.
4. I also bear in mind that it is not merely the quantity of the drug that is important in assessing the seriousness of offences of this type but also its purity, which in this case was not high, and critically, the role played by the offender and the overall circumstances of the offending. In Wong and Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64, at [31] per Gleeson CJ and [64] per Gaudron, Gummow and Hayne JJ, the High Court observed that a proper assessment of an offender's actual role in the supply of drugs is at least as important as the identification of the quantity of drug in fact supplied.
5. In R v MacDonell (2002) 128 A Crim R 44, at [33] Wood CJ at CL put it this way; "It is also to be accepted that the mere quantity of the drugs is not the sole, or even the principal determinant for sentencing in relation to drug offences. What is more important is the role of the offender, and the level of his or her participation in the offence; subject of course to the fact that, in relation to supply offences under state law, there is a gradation of seriousness reflected by the increase in penalty as the quantity of drug involved moves into those levels which answer the descriptions of a commercial quantity, or of a large commercial quantity."
6. What is clear from the agreed facts is that the offender had easy access to drugs, and further that he was ready, willing and able to facilitate or assist in the supply of those drugs. The drug that he was willing to assist in the supply of is in my observation, having presided over a number of circuits of the District Court in Nowra, a drug that causes very considerable harm in that community. As is often the case in both metropolitan and regional parts of New South Wales, methylamphetamine is an important underlying cause of other criminal behaviour and increasing social disadvantage. Regrettably, Nowra is no different. That this is so is dramatically borne out by the facts and circumstances surrounding counts 1 and 2 to which I have earlier referred. It is further corroborated by the findings of Professor Dan Howard SC in Volume 4 of his report to the New South Wales Government titled "Special Commission of Inquiry into crystal methamphetamine and other amphetamine-type stimulants" published in January 2020. Part of this report deals with the Nowra area. It is sufficient to note for present purposes that my anecdotal observations of social disadvantage are reflected not only in the reported increased use of methylamphetamine and the associated violent behaviour to which this report refers, but also in the reported increasing presentation to health and other service providers of people using methylamphetamine, including issues of homelessness and family breakdown.
7. The supply offence is one involving a single unsophisticated transaction, where the offender used his own name in dealing with the undercover police operative and in circumstances where he was not the intended target of the police operation. Rather, he was an associate of that target, a regular user of illicit substances and a person familiar with those within the Nowra area who were involved in the supply of them. So much is plain from his attendance at two locations seeking to obtain drugs on this day, and his attendance at the North Nowra premises of Shannon Schievink some four days later. The financial benefit obtained by him as a consequence of his participation in this drug supply was apparently modest. The Crown in his submissions suggested that count 3 fell towards the lower end of the range of objective seriousness for offences of this type. Mr Warr made a like submission. Their categorisation of the offending in this way is one with which I agree.
8. The offenders record of prior convictions does not impact upon my assessment of the objective seriousness of his offending: R v McNaughton [2006] NSWCCA 242: (2006) 66 NSWLR 566, at [24]. It is nevertheless relevant and important to note that the culpability of the offender, for all of the criminal behaviour for which he is to be sentenced, is aggravated to some extent by both his extensive criminal history and the fact that he was on parole for other offences at the time of his offending. I do of course bear in mind that the fact of his being on parole, cannot, consistent with the principle of proportionality, lead to the imposition of a penalty that does not sit comfortably with the overall gravity of his offending.

The offender's subjective case

1. The offender was born in Sydney on 4 August 1983 and is currently aged 36 years. He has 3 brothers and a sister. He was aged 33 years at the time of the offending. Tendered in his case were a number of medical records and psychiatric reports covering an extended period from July 2002 until February 2020. The most recent psychiatric report of Dr Alexey Sidorov, consultant forensic psychiatrist, dated 3 February 2020 is useful on a number of bases, not least being that it provides, in part, a summary of the substantial body of earlier medical material relied upon by the offender, all of which has been read and considered by me.
2. He had the very sad experience of his mother being jailed when he was aged 4 and his then being placed into foster care. While in the care of the State he was both physically and sexually abused. He was separated from his siblings at this time. He moved between a number of different foster homes until the age of 15 when he commenced to reside with his mother. He has never met his biological father. He continues to have contact with his brothers and sister. Perhaps unremarkably, his education was compromised and he left school after year 7. From the age of 10 he experienced hallucinations and paranoia, and was formally diagnosed with schizophrenia at the age of 15 years. The medical material tendered in the offender's case confirmed a consistent and ongoing diagnosis of schizophrenia since that time. He has been treated with various medications for that illness since his teenage years, being a period of about 20 years. His record of employment is limited.
3. He has a 7-year-old daughter from a previous relationship. He reported to Dr Sidorov that his mother is presently unwell and suffering from cancer, and that he would like to spend time with her. The offender also reported to Dr Sidorov that he had been "off his medication" for about 2 months at the time of the offending, and that he intended to steal the victim's drugs in order to self-medicate for his psychotic symptoms. I note that this indication by the offender to Dr Sidorov, adds weight to the conclusion I earlier drew as to him being the prime mover and instigator behind count 1.
4. At the time of the offending he reports that he was using methylamphetamine weekly to monthly. In the past he has also used cocaine. He indicated to Dr Sidorov an awareness that his substance abuse worsened his psychotic symptoms. He is described as having "good insight and a reasonable degree of rational judgment". There was no evidence of formal thought disorder present during his consultation with the psychiatrist although there was described, a "degree of poverty in his thought content".
5. His criminal record, to which I have earlier referred, is a poor one. It stretches back to the Children's Court when he was aged 14 years, and serves to deprive him of some leniency. As I have already noted he was on parole at the time that these offences were committed. His record in both New South Wales and Victoria includes multiple offences and terms of imprisonment for dishonesty matters including; stealing, breaking and entering, aggravated breaking and entering, possessing housebreaking implements, goods in custody, and offences involving car theft. There are also numerous convictions for offences of violence, firearms offences and various driving offences. As best as I can ascertain from a consideration of both his New South Wales and Victorian records, since 2001 when he turned 18 years, he has spent a total of approximately 12 years in full time custody. In my view, his record bespeaks someone who has long wrestled with issues concerning both addictions to illicit substances, compromised mental health and real social disadvantage.
6. Dr Sidorov concludes in his report that the offender meets the diagnostic criteria for both schizophrenia and antisocial personality disorder. He opines that; "Mr Hardes has been predisposed to developing schizophrenia due to his genetic vulnerability coupled with early environmental stressors including a history of domestic violence as well as sexual abuse whilst he was a child. His schizophrenia has been exacerbated by his ongoing substance use as well as his repeated incarcerations and complicated by social isolation. Mr Hardes has had significant conduct issues having left school after year 7 when he was aged 13 or 14. Since then he has had multiple charges, convictions and incarcerations. It is likely that his offending behaviour is partly related to his psychotic illness, namely schizophrenia as well as his polysubstance use. However, during his adolescence, he likely also met the criteria for conduct disorder, which was characterised by antisocial attitudes where he had no regard for rights of others and pro social norms. He has continued to hold these attitudes and exhibit these behaviours into his adult years. As such he meets the diagnostic criteria for antisocial personality disorder".
7. Dr Sidorov further concludes that there is no direct nexus between Mr Hardes' offending behaviour and his mental illness and that his conduct was primarily driven by his need to obtain the illicit drugs to which he was addicted. I accept that conclusion. This is not to say that the mental condition from which the offender suffers is not to be taken into account on sentence. The fact of his mental illness, which is chronic and of long standing, means that he is a less appropriate vehicle for general deterrence and that the sentencing principles of retribution and denunciation ought to be given less weight and may result in the imposition of a lesser sentence. That this is so is well-settled: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194. His mental condition impacts upon my assessment of his overall moral culpability, as does his socially impoverished, disadvantaged and deprived background to which I have earlier made reference. This is consistent with what the High Court said in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. As part of the instinctive synthesis I will have regard to these factors.

Prospects of rehabilitation

1. Given the chronic nature of the offender's mental health difficulties and his long history of engagement with the criminal justice system, I am unable to assess his prospects of rehabilitation as other than guarded. Much will depend upon his attitude to that rehabilitation and his commitment to remain absent from custody. Had it not been for the fact that Dr Sidorov reports that he has some insight into his need for ongoing medication and treatment, then I would have assessed his prospects of rehabilitation as poor.

Parity

1. Parity between the offender and Hand is an issue that looms large in this sentencing task. The application of the parity principle means that the court must, in the imposition of sentence, seek to avoid any unjustifiable disparity between the sentences imposed upon offenders who are involved in a common criminal enterprise. It is the avoidance of a disparity that is not justifiable, that the court must endeavour to achieve. Application of the principle does not necessarily equate to the imposition of numerically equivalent sentences, including in circumstances where the subjective cases of co-offenders are different. Underlying the principle is the notion that; "unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community": Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, Mason J at [610].
2. In considering issues of parity between this offender and his co-offender, it is necessary to set out in more detail the penalties that were imposed upon Hand, noting of course that he entered pleas of guilty in the Local Court and was afforded a 25% discount on what would otherwise have been appropriate indicative sentences. Hand was sentenced to an aggregate term of imprisonment of 10 years and 6 months and a non-parole period of 7 years. He was sentenced for two of the three offences for which this offender is to be sentenced, along with two other offences of which this offender was found not guilty by the jury. These additional offences were one count of attempting to discharge a firearm with intent to murder while inside the bedroom, and a further count of firing a firearm at a dwelling with reckless disregard for the safety of another person. These offences carry maximum penalties of 25 years and 14 years imprisonment, and standard non-parole periods of 10 years and 5 years respectively. In the imposition of Hand's aggregate sentence, I noted indicative sentences, after allowing for a 25% discount, of 7 years and 6 months imprisonment for the attempt discharge firearm with intent to murder count, and 3 years imprisonment for the discharge firearm at dwelling count.
3. To place the parity issue in some further meaningful context, it is necessary to have regard to the indicative sentences I determined were appropriate for Hand in respect of those counts for which this offender is now to be sentenced.
4. In counts 1 and 2, I noted sentences of 6 years imprisonment less 25% to reflect the plea of guilty, making indicative sentences of 4 years and 6 months imprisonment. Given that count 2 is a standard non-parole period offence, I also noted an indicative non-parole period of 3 years imprisonment.
5. Like this offender, Hand experienced a difficult childhood. It was characterised by domestic violence perpetrated by his father and then his stepfather. He was an above average student at school, had worked in various industries and had conducted his own business as a landscaper. Like the offender, he had entrenched issues in respect of a drug use that had persisted since his adolescence. He also abused alcohol. He had overdosed on heroin on a number of occasions and at the time of the offending was using methylamphetamine. He reported experiencing numerous periods of depression over an extended period but unlike this offender, had never engaged in treatment with a psychologist or psychiatrist or been diagnosed and/or treated for an identifiable mental illness. Whilst the childhoods of both offenders were plainly dysfunctional, the diagnosed mental illness from which this offender has clearly suffered for much of his life is a feature of his subjective case that distinguishes him, in a not insignificant way, from his co-offender. As I have already observed, this feature makes him a less appropriate vehicle for general deterrence than was Hand, and impacts upon his sentencing so as to reduce his overall moral culpability to some extent.

The offender's custodial status and totality

1. An issue arises in this matter as to the date upon which the sentence to be imposed upon the offender should commence. This is because of his custodial status subsequent to being charged with these offences. He has now been continuously detained since the date of his arrest being 13 June 2017, a period of approximately 2 years and 11 months. At the time of the commission of each of counts 1, 2 and 3, the offender was on parole following sentences imposed upon him in the Drug Court on 29 May 2015 for offences of break, enter and steal (where his parole was due to expire on 15 August 2017), and take and drive conveyance without consent of owner, goods in custody and drive conveyance without consent of owner (where his parole was due to expire on 15 February 2018). Following his being taken into custody for counts 1 and 2 his parole was revoked. Consequent upon orders made by the State Parole Authority, his balance of parole expired on 18 February 2018. As a result the offender has been in custody solely referrable to the matters for which he is now to be sentenced since then, being a period of just less than 2 years and 3 months. The resolution of when the sentences to be imposed today ought to commence involves a consideration of principles of totality. That is, what is the appropriate total period for which this offender should be detained? In resolving this question I must seek to impose a sentence that is neither too harsh nor too lenient and which reflects overall, a proper period of incarceration having regard to the total criminality of the offender and his subjective case.
2. The Crown submitted that the sentences to be imposed today should commence following the expiration of the offenders previous parole period. Mr Warr, while noting that the commencement date of the sentence is always a matter of discretion, submitted that the sentence should commence in mid-October 2017, being a point halfway between the date of the offender's arrest and the expiration of his earlier balance of parole. In sentencing Hand, who was also in breach of parole at the time of the offending, I took the approach now urged by Mr Warr. In fairness to this offender and so that there will be parity in terms of the treatment of each offender as to this aspect, I will take a similar approach here. The sentence to be imposed will commence on 18 October 2017.

Special circumstances

1. I have been asked to make a finding of special circumstances. Such a finding is a discretionary finding of fact that permits an adjustment downwards of a non-parole period. It does not authorise an increase in the term of a sentence. The primary consideration should be the length of the minimum period of actual incarceration that is required to encompass the full range of issues relevant on sentence. Generally speaking, the reform of the offender will be a purpose in finding special circumstances but this need not be the only purpose. The concept of special circumstances goes to the question of rehabilitation of the offender, that being one of the purposes of sentencing. I have concluded that a finding of special circumstances should be made in this matter for the following reasons which should be viewed in combination. It is my opinion that this offender will require an extended period of supervision in the community upon his release to ensure that he is best placed to readjust to community life and to ensure, as best I can, that his ongoing need for treatment in respect of his mental health is met. If it is, then that is likely to be in the interests of both the offender and the community. I have also had regard to his likely need for continuing drug rehabilitation, and to the risk of institutionalisation that he faces (if that risk has not yet materialised), arising from the lengthy periods of time that he has spent incarcerated during his life: Jackson v R [2010] NSWCCA 162. I note the offender is still only 36 years old. He may be able to enjoy a long pro social life on his release, particularly if he can deal with his mental health issues and the demons of his drug use. An extended period of supervision on parole will assist in this regard.

Conclusion

1. The sentence imposed must, in the final analysis, have regard to the purposes of sentencing set out in section 3A of the Crimes (Sentencing Procedure) Act. They are: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and others from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his actions, 6. to denounce the conduct of the offender, 7. to recognise the harm done to the victim of the crime and the community.
2. In framing the sentence to be imposed, I have sought, doing the best I can, to balance all of the relevant purposes. As I did in sentencing Hand, I have concluded that this matter lends itself to the imposition of an aggregate sentence. That being so it is necessary, in accordance with the statutory regime, that I note the indicative sentences that I would have regarded as appropriate had I determined not to impose such a sentence. In respect of count 2, given that it is a standard non-parole period offence, it will also be necessary for me to note an indicative non-parole period in accordance with section 54B (4) of the Crimes (Sentencing Procedure) Act.
3. As I have already observed, the offender is entitled to a 10% discount to reflect his plea of guilty for count 1. That being so, and in the event that all other things were equal between them, numerical parity with the co-offender would result in a sentence of 6 years imprisonment less 10%, making an indicative sentence after rounding down of 5 years and 4 months imprisonment. He is not entitled to any utilitarian discount in respect of count 2 where the jury found him guilty. Accordingly, and if all other things were equal, numerical parity with his co-offender would result in an indicative sentence of 6 years imprisonment.
4. I am not however of the view that all other things are equal as between this offender and his co-offender. I have earlier assessed the objective seriousness of both offenders conduct as approximately equal in respect of count 1, and of the objective seriousness of this offenders conduct as less than that of his co-offender in respect of count 2. In addition, it is also necessary to factor into the instinctive synthesis of this sentencing task, the different subjective cases of each of the offenders, noting in particular this offenders compromised mental health and disadvantaged background, along with the need for the sentence imposed to properly reflect the need for community protection.
5. I have concluded that the appropriate indicative sentences for this offender are as follows: Count 1 - a sentence of 5 years and 3 months imprisonment, less 10% to reflect the plea of guilty, making an indicative sentence after rounding down of 4 years and 8 months imprisonment. Count 2 - a sentence of 4 years and 6 months imprisonment. I note an indicative non-parole period of 2 years and 9 months imprisonment. Count 3 - a sentence of 16 months imprisonment less 25% to reflect the plea of guilty making an indicative sentence of 12 months imprisonment.
6. I have finally concluded that an appropriate total aggregate term of imprisonment is one comprising a total term of 7 years and a non-parole period of 4 years and 6 months.
7. Given this sentence, I am of the view that the appropriate disposition of the related offence of carrying a cutting weapon upon apprehension is by a conviction being recorded and no further penalty imposed.

Orders

1. The orders I make in this matter are as follows: 1. The offender is convicted in respect of counts 1, 2 and 3. 2. Pursuant to section 53A of the Crimes (Sentencing Procedure) Act 1999, he is sentenced to an aggregate term of imprisonment comprising a total term of 7 years and a non-parole period of 4 years and 6 months commencing 18 October 2017. 3. He will be eligible for release on parole on 17 April 2022. 4. His sentence will expire on 17 October 2024. 5. In respect of the related matter he is convicted, pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999 there will be no further penalty.

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