R v Hooper

District Court of NSW|2022-12-15

Director of Public Prosecutions (Crown) Millennium Lawyers (Offender) File Number(s): 2020/00029754 & 2020/00213090

INTRODUCTION

Jamie Hooper appears for sentence upon the following offences charged in respect of three series of misconduct.

File 2020/00029752

Sequence 12. On 17 November 2019, at Bankstown in the State of New South Wales did break and enter the dwelling house of Thi Quynh Trang Vu at [REDACTED] Street, Bankstown and did commit a serious indictable offence therein, namely intimidation with intent to cause fear and physical and mental harm in circumstances of aggravation, namely being in company of another person and in circumstances of special aggravation, namely being armed with a dangerous weapon. The offence is contrary to s 112(3) Crimes Act 1900.

File 2020/00213090

Sequence 1. Between 31 October 2019 and 24 December 2019 at McMahons Point in the State of New South Wales did supply a prohibited drug, namely 3,4-methylenedioxy-methylamphetamine in an amount which was not less than the large commercial quantity applicable to that prohibited drug, s 25(2) Drug Misuse and Trafficking Act 1985.

PENALTIES

The maximum penalty for the offence of special aggravated break and enter and commit the offence of intimidation is imprisonment for 25 years with a standard non-parole period for the purposes of Part 4 Div. 1A Crimes (Sentencing Procedure) Act 1999 of seven years.
The maximum penalty for possession of a prohibited firearm in contravention of a Firearms Prohibition Order is imprisonment for 14 years.
The maximum penalty for the possession of ammunition is imprisonment for five years.
The maximum penalty for possession of an unlicenced pistol is imprisonment for 14 years with a standard non-parole period of four years.
The maximum penalty for possession of a prohibited shortened firearm is imprisonment for 14 years with a standard non-parole period of four years.
The maximum penalty for failing to keep a prohibited firearm or a pistol safely is imprisonment for two years and a fine represented by 50 penalty units.
The maximum penalty for supply more than the large commercial quantity of a prohibited drug is imprisonment for life and a fine represented by 5000 penalty units. There is a standard non-parole period of 15 years for this offence.

THE PLEAS OF GUILTY

The plea of guilty to the charge of special aggravated break and enter and commit the offence of intimidation was on 13 September 2022 when the offender was presented for arraignment. His decision attracts a discount of 5% to the sentence of which would otherwise have been imposed for the utility of a plea of guilty at that stage of a proceedings upon the application of s 25D(2)(c) Crimes (Sentencing Procedure) Act 1999.
For all of the other offences the discount is 25%: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.
The offender consented to the Court dealing with the related offences, sequences 8 and 14 from file 2020/00029754 before the Court pursuant to s 166 Criminal Procedure Act 1986 and on 5 December 2022 he admitted his guilt. In accordance with the authorities such as R v Robert Borkowski [2009] NSWCCA 102, the offender shall have a discount of 25% applied to the sentences that would have otherwise been applied to reflect utility.

PRE-SENTENCE CUSTODY

The offender was arrested on 29 January 2020 and has been in custody since that time. The aggregate sentence I impose shall be taken to have commenced on that date.

THE FACTS

The offences before me extended from October 31, 2019, through to January 29, 2020, when the offender was arrested.
I shall deal first with the offence of specially aggravated break enter and intimidate in company when armed with a dangerous weapon.

File 2020/00029754, sequence 12

The foundational offence provided by s 112(1) Crimes Act 1900 is breaking and entering and committing a serious indictable offence. Relevantly, the offence is committed in circumstances of aggravation in contravention of s 112(2) if the offender is in company or knows that there is a person or there are persons in the place. The Crown may rely upon both circumstances of aggravation. The offence is committed in circumstances of special aggravation in contravention of s 112(3) if the offender is armed with a dangerous weapon, defined to mean inter alia a firearm within the meaning of the Firearms Act 1996. Each of these circumstances of aggravation and special aggravation are provided in s 105A Crimes Act 1900 and were present in the commission of this offence.
The offence was committed in the company of Thi Phuong Nguyen. She is yet to be sentenced. Her sentence proceedings were listed for 5 December 2022 but now are listed for sentence for this home invasion offence on 17 February 2023. I anticipate that the matter will come before me because of the determination of sentence in these proceedings against Mr Hooper.
In November 2019 the offender was working at an address in Riverwood. In that month Ms Nguyen was the registered owner of a white Porsche, the particulars of which appear in the statement of agreed facts. The victim is Thi Quynh Trang Vu. In November 2019 she resided at an address in Bankstown with her husband, Quy Bien Tran and their ten-year-old son, Damon Tran. The premises there are a double storey duplex. There is a surveillance system with a camera at the front door.
On 17 November 2019 about 8.09pm the offender drove into Leedham Place, Riverwood where he was working. He parked his car. He waited in the vehicle and on the street for his co-offender. About 8.14pm she drove her Porsche Cayenne into Leedham Place and he entered the front passenger seat. Several minutes later he alighted from the vehicle and walked to his car and then returned to the Porsche. A few minutes later about 8.24pm Nguyen drove the Porsche from Leedham Place in the direction of the victim premises.
Nguyen parked the Porsche on Herbert Street near the intersection of Arthur Street Bankstown. The offender and Nguyen exited the Porsche and walked toward Ms Vu's home. About 8.45pm the offender and Nguyen approached the closed front door and rang the doorbell. At that time Ms Vu and Mr Tran and their ten-year-old son were at home. Ms Vu was in the shower but upon hearing the doorbell she exited it. They were upstairs and used the security system to view the offender and Nguyen standing at the front door. Ms Vu came downstairs. The offender kicked the front door and it opened. He and Nguyen entered Ms Vu's home; he was holding a firearm. At this point Ms Nguyen became aware of the firearm but did not withdraw from the joint criminal enterprise upon which they were engaged. Ms Vu described the firearm as a small black gun that was old with colour missing from it.
At the time the offender was wearing gloves and a hoodie and had his face covered with a mask. Ms Vu described the mask as scary and having something that looked like a monster depicted on it. Nguyen was wearing pants and a long sleeve top and did not have anything on her hands or face to conceal her identity or her appearance.
Mr Tran and young Damon were upstairs. Damon locked himself in Ms Vu's makeup room and contacted triple 0. The offender said, "Everyone upstairs needs to come down". Ms Vu moved in front of the staircase with her arm outstretched to prevent the offender from going upstairs. He held the gun in her direction. Mr Tran started coming down the stairs. Hooper shouted, "Everyone need to come down". Nguyen who was standing next to Hooper, the offender, said "Come down".
At this time Van Doanh Nguyen, a close friend of Ms Vu, and his wife Phi Duong arrived in their car. When they pulled into the driveway the headlights of the car were visible inside the house. The offender ran out the front door and away from the house. The co-offender Nguyen remained in the house. She said, "If you tell anything about the gun tonight we will come back".
The police arrived a short time later and spoke with Ms Vu. Ms Vu told the police about a masked man with a gun breaking into her home. She identified the offender, Nguyen, as coming with that man, whereupon Nguyen was arrested. Inside the house and the backyard the police located three resealable bags of cannabis with a total weight of 528.3 grams and $1000 cash. Thi Phuong Nguyen told police at the scene that she had attended the home by herself to talk to Ms Vu and her husband about why Mr Tran had struck her two days earlier.
Ms Nguyen was conveyed to Bankstown Police Station where she was explained her rights. With the assistance of an interpreter she told police that she had attended Ms Vu's home by herself to ask Ms Vu why she had hit her two days earlier and that when she got to Ms Vu's house it had already been broken in. Nguyen was charged in relation to the matter.
On 19 December 2019 the offender Nguyen attended Bankstown Police Station and reported to police that Ms Vu hit her on the back of her head while she was having coffee at a café in Bankstown. Nguyen then told police that she did not see who hit her and later said that Ms Vu should be arrested and, "This lady put me in gaol, and now she hit me". Police located Nguyen's Porsche and seized it for examination.
This offender's fingerprints were located on the exterior of the front passenger side door. Fingerprints belonging to Nguyen were located on the exterior of the front driver side door. A DNA profile matching that of this offender was obtained from a swab on the front passenger seat headrest.
On 29 January 2020 police stopped the offender at a service station in Punchbowl. He was arrested and conveyed to Bankstown Police Station where he was explained his rights. He was offered the opportunity to participate in an electronically recorded interview with police which he declined.
The representatives appearing in this matter acknowledge that this crime of relatively short duration was a home invasion in the pursuit of drugs and money expected to be found on the premises. Involvement of the victims in their own criminality attracting such attention from these offenders does not ameliorate the objective seriousness of the offending. The Crown submissions identify the features relevant to the assessment of objective seriousness in support of the proposition that the offence is to be assessed as within midrange.
The matters to which the Crown points are that the offending was premeditated, illustrated by the offender having been collected by his co‑offender Nguyen before they travelled to the victim's home. The offender was wearing gloves, a hoodie, and a face mask to prevent his identification and this also further intimidated the victims. The offending was committed at 8.45pm when the offenders knew it was likely that the victims, or at least some of them, would be home. The offender instigated the offending by kicking open the door while holding a firearm. He shouted at the victims to come downstairs whilst wielding the firearm and held the firearm in the direction of Ms Vu.
It is integral to the offence that the crime was committed in the home. I have also noted that the occupants of the home present at the time included a ten-year-old child. I agree with the assessment that this offence is within midrange of objective seriousness. Since this is an offence for which there is a standard non-parole period specified for the purpose of Part 4 Div. 1A Crimes (Sentencing Procedure) Act 1999, I should comment upon the significance the standard non-parole period has.
These comments apply to each of the offences before me. The Court is required to assess the objective seriousness of offences for which there is a standard non-parole period with reference to Part 4 Div. 1A Crimes (Sentencing Procedure) Act 1999.
S 54A(1) provides that the standard non-parole period for an offence is that which is included in the table to the provisions. S 54(2) provides that the standard non-parole period represents the non-parole period for an offence in the table taking into account only the objective factors affecting the relative seriousness of that offence that falls within the middle of the range of objective seriousness. S 54B(2) provides that the standard non‑parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account. S 54B(3) requires that the Court records its reasons for setting a non-parole period that is longer or shorter, identifying each factor taken into account.
The objective gravity of all the offences before me is assessed upon the consideration of the objective factors affecting the relative seriousness of the offence without reference to matters personal to the offender or class of offenders but wholly by reference to the nature of the offending bringing into account relevant factors provided in s 21A of the Act except for those that are essential elements or integral characteristics of the offence.
The fixing of the non-parole period is but part of the task whereby the Court determines what is the appropriate sentence regardless of whether guilt is admitted or established after trial and regardless of whether the offence falls within the low, middle, or high range of objective seriousness for such offences. The Court must not embark upon an arithmetical or staged or tiered process of reasoning when assessing appropriate sentence but must identify all relevant matter bearing upon the question of the appropriate sentence in the process of intuitive synthesis, discussed for example by McHugh J in Markarian v R [2005] HCA 25, reported at (2005) 228 CLR 357 at p 378.
In a determination of sentence for offences for which there is specified the standard non-parole period, it and the maximum penalty are legislative guideposts for the sentencing court along with other established sentencing practices and by reference to matters identified where relevant in s 3A, 21A and 22 of the Act.
Johnson J provided guidance regarding the assessment of objective seriousness of standard non-parole period offences and those that do not have a standard non-parole period specified for them in Tepania v R [2018] NSWCCA 247. After discussing the provisions for standard non-parole period offences with reference to the assistance given in the second reading speech and in the explanatory memorandum for the amended provisions, his Honour continued; "[111] In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence... [112]... In Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14, it was observed (at 476-477) that a mental abnormality may diminish moral culpability and an antecedent criminal history may illuminate moral culpability. [113] In Muldrock v The Queen (at 140 [58]), it was observed that the applicant's limited moral culpability may mean that retribution and denunciation did not require significant emphasis."
Thus, the Court is given the task in all offences including standard non‑parole period offences of assessing the objective seriousness of the offence and of assessing the offender's moral culpability in the commission of the offence in the process of intuitive synthesis of all the relevant factors and with reference to the guideposts provided by the maximum penalty and the standard non‑parole period provided to determine the sentence appropriate to the case.
Assessment of objective seriousness of an offence is a matter of judgement upon which minds might differ. It is often difficult to be precise in the specification of the level of objective seriousness, however upon my assessment of the material I have come to the following for the reasons given. Considering the nature of the misconduct described in the statement of agreed facts and the factors identified, I agree with the Crown's submission that the offender's conduct in the commission of this offence brings it within the midrange of objective seriousness.
It does not follow, however, that the period for the sentence and the period for non-parole should be calculated upon an arithmetical process for this would be to ignore the required intuitive synthesis of all the relevant factors which would normally have the effect of reducing the sentence and the period of non-parole to below that which would fall otherwise upon any such impermissible calculation.

File 2020/00029754

I shall next deal with the firearms offences, file 2020/00029754. As a reminder: sequence 3 possessing a shortened Winchester rifle in contravention of Firearms Prohibition Order that was in force; sequence 4, possess the various quantities of ammunition; sequence 6, possess a Ruger pistol without being authorised to do so by a licence or permit; sequence 7, possess a shortened Winchester rifle without being authorised to do so by a licence or permit; sequence 19, possess a Ruger pistol in contravention of the Firearms Prohibition Order that was in force; sequence 8, a related offence, in possession of a shortened Winchester rifle, failed to take all reasonable precautions to ensure its safekeeping; and sequence 14, a related offence, in possession of a Ruger pistol, failed to take all reasonable precautions to ensure its safekeeping.
According to the document styled "Agreed facts on sentence", on 3 September 2019 police attended an address at Leedham Avenue, Riverwood and served a Firearms Prohibition Order on the offender. This order remained in force at all relevant times.
On 29 January 2020 the police were conducting surveillance of the offender at 8 Iris Avenue, Riverwood. About 11.17am the offender left those premises in a black Volkswagen Golf. The police followed him to a Caltex Service Station on Canterbury Road, Punchbowl. As he alighted from the vehicle he was placed under arrest. The police seized his mobile phone and his keys. The police told him that they had a search warrant to search his home address. He replied "What? For Leedham Place Riverwood?" The police explained the search warrant; it related to an address at Iris Avenue, Riverwood. Although he initially denied that he lived at this address, the offender ultimately told the police that there were two firearms at the location and that "My prints are on it in the house." He was conveyed to Bankstown Police Station.
At 1.18pm the search warrant was executed at the Iris Avenue address and in the course of the search the following items were found.
First, the Ruger pistol the subject of sequence 6, 14 and 19. On the floor adjacent to the bed was a red and black Ruger 22 calibre pistol with an attached magazine of ten round capacity. Immediately next to the pistol were two gloves and a folding knife. The police removed the magazine from the pistol and saw that it was loaded with seven .22 calibre rounds with another round loaded in the chamber. Subsequent analysis of the pistol showed that it was in working order, had a shortened barrel, and that the serial number was partly obliterated. There is a photograph showing the weapon against a rule giving the opportunity to assess its size.
The Winchester rifle, the subject of sequences 3, 7 and 9 was found immediately behind the bedroom door in a black bag. This was a Winchester 0.243 calibre "Model 70" bolt action repeating rifle with a red barrel; the serial number is specified. It was wrapped in a black cloth. It had an internal box magazine with a five-round capacity. The police unwrapped the rifle and retrieved four rounds of ammunition from the magazine, another round was found wrapped in a tissue in the black cloth. This was, upon analysis, found to be in working order and had been shortened by removing portions of the barrel and stock. There is an image of this rifle against a rule, again giving an opportunity to assess its dimensions.
A leather bandolier was found containing 12 rounds of 0.243 calibre ammunition. There were 14, 0.243 calibre rounds in a plastic bag. There was a plastic clip containing seven rounds of 0.222 ammunition, a pair of black gloves and two face coverings. There are images of these items on the fourth page of the facts. One of the face coverings it appears has a frontal image of a human skull.
The ammunition, the subject of sequence 4, was located in various locations in the offender's bedroom; the entire number of each type of ammunition is listed consistent with what is contained in the particulars in the charge to which I have already referred.
I agree with the Crown submission that these offences should be assessed as within the midrange of objective seriousness. The factors indicating this are that the Ruger pistol, the 0.22 calibre weapon, was on the floor in the bedroom and not properly secured, loaded with seven rounds in the magazine, with another ready to be discharged in the breech. The partial obliteration of the serial number is advanced. The Winchester was located in the bedroom not properly secured, loaded with four rounds. It had a shortened barrel and a shortened stock. The ammunition was located throughout the bedroom, including the ammunition within the Ruger pistol and the Winchester rifle and there were 12 rounds of the ammunition suitable for the Winchester rifle found in the leather bandolier.
The offender was the subject of a Firearms Prohibition Order egregiously breached with the possession of these weapons and the array of ammunition.
He explained these items, to which I shall come, but it does not in my assessment provide him with any justification whatsoever. The purpose to be drawn from what he has represented in his out of court statements was that he had the weapons and ammunition because of his fears for his own safety.
A factor of concern arising from the possession of the weapons and the array of ammunition suitable for them and for other weapons is the acknowledgement attributed to the offender that he can surrender to violent responses which, with the opportunity these weapons could provide him, would result in catastrophic outcomes for him and any person to whom he could offer harm.
The representations that he can surrender to violent responses are contained in material that was provided upon the assessment of his mental health.
The explanation that he had these weapons because of his fears from his past association with outlaw motorcycle members is difficult to assess in the absence of evidence from him regarding the precise nature and extent of his fears and the basis upon which they are held. Of course he suffers no adversity from his decision not to give evidence, which is his right, leaving the Court to assess the objective facts according to the criminal standard of proof with those upon which the offender would rely according to a lesser standard in accordance with R v Olbrich [1988] HCA 54 where the plurality wrote; "[24] Courts of Criminal Appeal in Australia have considered the subject of fact finding for sentencing many times in the last 30 years. Not all of the questions that have been examined in those decisions must be considered now. For present purposes, it is enough to say that we reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. The incongruities that would result if this submission were accepted are well illustrated by the present case. The respondent swore that he was a courier but the judge disbelieved him. To require the judge to sentence the respondent on the basis that he was a courier is incongruous. [25] Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. We say "if necessary" because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion."
Nonetheless, his participation in serious crime in addition to the charges arising from his possession of the weapons and the ammunition, against what I find to be issues arising in respect of his mental health to which I shall come, requires appropriate weight for the need to provide adequate protection to the community from the offender.

File 2020/00213090

I shall now deal with the offence of supply of large commercial quantity of 3,4-methylenedioxy-methylamphetamine, file 2020/00213090, sequence 1.
On 22 July 2019 authority was granted under s 27 Law Enforcement (Controlled Operations) Act 1997 to conduct a cross-border controlled operation. The authority expired on 21 October 2019. On 31 October 2019 authority was granted under the same provision to conduct a cross‑border-controlled operation; this expired on 30 January 2020.
From Saturday 3 August 2019 an undercover operative given the number 547 engaged in a text message conversation with the co-offender Moise on an encrypted message service, Ciphr. Moise used a pseudonym "Lazos De Sangre".

First Supply - 1 November 2019

On 5 August 2019 Moise sent a message to UCO 547 "This just come, arranging samples" and sent a photograph of four dark brown coloured rocks which he believed to be MDMA. The undercover operative replied, "Okay bro I'll wait to hear from you." On 6 September 2019 Moise sent a series of messages to UCO 547, "I have a couple M options but not from ppl so a touch expensive. Ppl don't really do samples a lot these days so they're rated instead." Moise then sent photographs of broken caramel-coloured blocks and messages indicating quality of the product and the price:"10/10; 25K singles; 24K two or more; 23K five or more". Moise then sent another photograph of a block of caramel coloured substance followed by the message "8/10; 24K each; my options shouldn't be far off. A bit dry atm." Moise then confirmed to UCO 547 that he was sourcing the drug through "connections of mine".
From this date the undercover operative conversed with Moise on a regular basis where the two spoke about arranging for the undercover operative to purchase the product from Moise. On 18 September 2019 Moise requested the undercover operative 547 meet him in person saying he was a "bit old school". Moise told UCO 547 that "I have a restaurant in nth syd". A meeting was then arranged on 20 September 2019 at a restaurant called Moorish Blue, however this was later cancelled by Moise. Moise in fact did not own the restaurant or have any interest in the restaurant; he simply worked part time.
On 25 September 2019 Moise sent a photo of a brown coloured rock to UCO 547 which he described as "10/10" and "my close source". A meeting was later arranged at the Moorish Blue restaurant at 5pm on 9 October 2019. About 5pm on 9 October 2019 UCO 547 entered the Moorish Blue restaurant at 139 Blues Point Road Milsons Point. He walked to the back of the restaurant and met Moise, a middle-aged man name Jamil, and another female. UCO 547 and Moise walked back to the front of the restaurant where they sat at a table. Police captured photographs of Moise while he was seated at the table.
They conversed about Moise supplying cocaine, MDMA and ecstasy pills. During the exchange there was conversation which is quoted at p 2 of the document. "UCO 547: I got a good business running the M, let's stick with that one first. Moise: Let me help you with that. UCO 547: Okay um, what we talked about, the one kilo. What's the best price for it. Moise: I'll have to message them man. UCO 547: Okay. Moise: It's been weeks. UCO 547: Yes. Moise: You know what I mean? Like, this is. UCO 547: Can we organise this Friday? Moise: Yeah whenever you want. UCO 547: Okay. Moise: I'll get the information for you. UCO 547: Okay. Moise: Just text me now. UCO 547: Mm. Moise: When you get back text me what you want. UCO 547: Yes. Moise: I'll check. UCO 547: Will do the one kilo one. I'll let you now."
Later in the conversation Moise indicated to UCO 547 that he could provide the drugs at his restaurant, a café in his house. He told the undercover operative that he might send a driver to meet him. On 1 November 2019 Moise and the undercover operative arranged to meet for the undercover operative to purchase one kilogram of MDMA for $24,000. About 12.25pm Moise texted the undercover operative and asked for the $24,000 to be broken down into $22,000 and $2000 so he could give it to "the boys". The UCO agreed to this.
At 12.37pm the UCO obtained $24,000 in Australian currency from a detective. $22,000 of the money was placed in a white Woolworths shopping bag and another $2,000 was placed into the pocket of the undercover operative's cargo shorts. At 12.55pm the undercover operative pulled his vehicle into the disabled parking space in front of the Moorish Blue restaurant and saw Moise and Jamil sitting at a table in the front. He rolled down the front passenger window to get Moise's attention and Moise approached the window and told him to park the car.
UCO 547 parked the car and returned to the restaurant. Moise told him that the driver was near the restaurant and to get the money out of his car. UCO 547 complied with this request. When he returned to the restaurant Moise gave him a white plastic bag with an envelope inside. UCO 547 thought this felt like a thin pile of cash. Moise asked him to hand this to the driver upon entering the vehicle. This money was payment by Moise. Moise told UCO 547, "The driver's just there bro" and pointed down the street. UCO 547 replied, "Which one?" to which Moise said, "In front of the white Jaguar there's a grey Mazda." UCO 547 told Moise, "I thought I was only going to be dealing with you". Moise replied, "It's alright, he's our driver he's in the crew".
Moise and UCO 547 approached the grey Mazda with the registration particularised in the facts. Moise waited about ten metres from the car while UCO 547 entered the front passenger seat. The offender was seated in the driver's seat. The UCO 547 noted characteristics of the offender. The UCO 547 handed the offender the envelope before handing him the Woolworths bag containing the $22,000. The offender then pulled a shopping bag from between his legs and gave that to the UCO. Inside the bag was a black, grey crystalline rock wrapped in numerous resealable bags. UCO 547 left the vehicle and approached Moise. He handed Moise the $2,000 from his cargo shorts pocket. He queried the colour of the product with Moise who said, "Nah, that's the same shit - and if it ain't, you let me know - straightaway, alright, no drama man, alright, if you don't ..(not transcribable).. ." The $2,000 was Moise's payment.
A short time later the UCO 547 left the location and handed the shopping bag to police where it was given an exhibit reference. This was later conveyed to the New South Wales Forensic and Analytical Science Service. Analysis found it to be 1004.2 grams of 3,4-methylenedioxy-methylamphetamine with a purity of 72%. Fingerprints were developed on the packaging. Three of these were identified as from So Pham Som. A DNA profile matching that person was also located.

Supply 2 - 11 November 2019

On 8 November 2019 the undercover operative sent a message to Moise, "Hey bro hope all is well. Boys like it. K was thinking of getting another one early next week". They exchanged messages on 9 and 10 November 2019 in which Moise told the undercover operative, "I am still waiting on supplier" before later arranging a midday meeting on 11 November 2019 at North Sydney. He said, "Let's meet in the side street. Keeping away from the restaurant for a little to be safe". At 10.33am on 11 November 2019 Moise texted the undercover operative, "Meet street where that you jumped in guy's car last time, down the bottom." At 11.27am Moise texted, "Can us separate 2K for me again pls". The undercover operative confirmed that he would do this. The $2,000 was to be payment to Moise on this deal.
The undercover operative obtained $24,000 in Australian currency from a detective and $22,000 was placed in a white Coles shopping bag with the remaining $2,000 placed in his cargo shorts. At 11.51am Moise texted the undercover operative, "Driver is here, same place as last time, half way up hill in grey Mazda. I'll see u after". The undercover operative drove to North Sydney and approached the corner of Waiwera and King George Streets. He observed the same grey Mazda parked on the road. He approached the Mazda, knocked on the window, and got into the front passenger seat; the offender was in the driving seat. The undercover operative handed him the shopping bag containing the $22,000 and the offender indicated a green Woolworths bag on the floor in the front of the passenger seat. This contained a black, grey crystalline rock wrapped in a number of resealable bags. The operative said, "Same as this one, oh yeah, same as last, sweet". The offender said, "My pleasure man".
The undercover operative exited the vehicle and placed the Woolworths bag into his own car and then met Moise a short distance away and gave him his $2,000 for the deal. Moise and the undercover operative had a conversation about prices for various drugs including Ice, cocaine and MDMA. Later that day the undercover operative received a message from Moise with an image of a white crystalline substance and a text, "That was the last lot of eye (code for Ice), just checking it's still the same and $." An hour later Moise sent another message, "That eye has run out sorry." The operative replied, "All good I'll get back you. Thanks."
The operative returned the drugs to be given an exhibit reference and later upon analysis at FASS it was found to be 1006.2 grams with a purity of 73%, 3,4-methylenedioxy-methylamphetamine. The DNA profile of So Pham Som was recovered from resealable plastic bags containing the MDMA together with a fingerprint matched to that person.

Supply 3 - 21 November 2019

The next supply, the third, was on 21 November 2019. The UCO texted Moise and asked, "Book me up with another kilo of M??". Later that day Moise had a picture of a brown coloured rock substance with a message, "New, powerful, midday tomorrow." The undercover operative replied, "Okay cool looks different from the last one. See you at midday. Still 24K?" He later added, "Hey bro, same street same driver? Separate 2K for you?" Moise replied, "Same price mate midday same place".
On 21 November 2019 the undercover operative was provided with $24,000 placed into a brown bag. The police were conducting surveillance of So Pham Som about 9.34am on 21 November 2019. They saw Som and the offender meet at Riverwood. The offender was observed leaving the grey Mazda and approaching Som's vehicle and then returning to the grey Mazda carrying a bag. The undercover operative sent a message to Moise at 11.47am, "Not far off. Be 5 mins away". Moise replied, "Okay, I'm out front of the restaurant".
The undercover operative drove to McMahons Point and arrived about 11.50am. He parked his car two spaces in front of the grey Mazda which he recognised from the previous encounters. He approached the Mazda and knocked on the window and then entered the front passenger seat. The offender was in the driving seat. He handed the offender the brown bag. The offender indicated a white Woolworths shopping bag on the floor in front of the passenger seat. This contained a brown caramel colour rock substance wrapped in resealable plastic bags. The offender asked the undercover operative "Have 24 there? How, how much is there?" The operative said "22" explaining that he intended to give another $2000 to Moise.
Moise then appeared at the driver's window and spoke to the offender. Moise handed the offender two bundles of money in $50 denominations. Moise then asked the undercover operative to give the offender the additional $2,000. The $2,000 that was to be paid to Moise was thus retained by the offender. The operative exited the vehicle and secured the Woolworths bag in his car. He then had a further conversation with Moise where they discussed purchasing cocaine, Ice and MDA. Moise offered to sell one kilogram of Ice for $80,000 and an ounce of cocaine for $6,000 to $6,500 with one day notice. He told the undercover operative that he would send images of the drug via Ciphr.
At 12.14pm Moise sent an image of a white rock substance on a scale reading 1.01 kilograms accompanied by a text message, "That's around 6K to u". At 12.17pm Moise sent an image of a white crystalline substance on brown paper accompanied by the text message, "Around 80K to me". At 1pm the police observed the offender return to his home in Iris Place at Riverwood. He left the premises about 15 minutes later.
The operative returned the Woolworths bag to police where it was given an exhibit reference and sent to FASS for analysis. It was found to be 941.2 grams of 3,4-methylenedioxy-methylamphetamine with a purity of 74.5%. Som's DNA profile was recovered from the resealable plastic bag.
On 22 November 2019 the operative sent a message to Moise which said in part, "Yesterday was short bro. It's all good around 2 ounces". Moise replied, "Give me exact gm pls". The operative replied, "Cool bro to be exact 59 grams muchos gracias amigo". The following day Moise replied, "Nada throw on next lol".

Supply 4 - 28 November 2019

We then come to the fourth supply on 28 November 2019. This involved Moise only. This describes the communication between the undercover operative and Moise in which the undercover operative asked to be hooked up for another kilo. The discussions continue between them. The price was specified at $20,700 with $2,000 to Moise.
On 28 November 2019 police arrested Som. He told police he was carrying approximately 2 kilograms of MDMA; two resealable bags were allocated exhibit references and subsequently analysed to show that they were respectively 986 grams of MDMA, 73.5% pure and 196.8 grams of MDMA 72% pure.
At 10.24am Moise informed the operative that he was having difficulty getting through to his people, and after exchanging messages over a couple of hours the arrangement was terminated and it was suggested that they try again next week.

Supply 5 - 17 to 24 December 2019

Supply 5 is involved this offender. The undercover operative on 17 December 2019 at 5pm contacted Moise on Ciphr asking, "Hook me up with 1 kg M for next Monday". Shortly after Moise replied "Okay" and over the next few days they exchanged messages and arranged to meet at midday on 23 December 2019. On that day at 10.38am Moise told the undercover operative, "So pass the driver 22K and pass me 700. That take into account the 2 oz". The UCO replied, "Hey bro when I get there am I looking for the same car and driver? Don't want to jump in the wrong car lol". Moise replied, "I'll be there outside the restaurant I'll need to pass u something for the driver also".
At 11.20am the undercover operative received a sum of money from a detective and then drove to McMahons Point and parked near the corner of King George and Waiwera Streets. About midday he observed the offender sitting in the driver's seat of a Ford utility. The offender waved at the UCO who then crossed the street and entered the front passenger seat of the vehicle. The offender passed the UCO an orange plastic bag which contained a ziplocked bag with several caramel-coloured rocks inside. The UCO passed the offender a shopping bag containing $22,000. The UCO exited the Ford and placed the orange shopping bag in his car then walked to the front of the restaurant and had a conversation with Moise where he handed $700 to him. The UCO left the restaurant about 12.08pm.
At 12.13pm the red Ford utility with a registration particularised returned and parked opposite the restaurant. Moise was seen to open the front passenger door briefly before returning to the restaurant. A short time later the UCO handed the orange shopping bag to police. It was given an exhibit reference. It was found to contain 990.8 grams of MDMA with a purity of 74.5%.
Thus the transactions in which this offender participated involved the supply of 3,942.4 grams of the drug on four occasions with money transferred in each extending up to $24,000 approaching almost $100,000 overall.
On 20 January 2020 the police stopped and arrested the offender in relation to another matter. A search warrant was executed at his home. He was charged in due course. He declined the opportunity to participate in an interview.
Moise was arrested on 8 July 2020 at an address in Rose Bay. He declined to participate in a forensic procedure and in due course declined the opportunity to participate in an interview with the police.
The objective gravity of this offending I find falls within the midrange of objective seriousness. I am reminded by the Crown in submissions provided in writing of the need to not only identify the quantity of the drugs but to also consider the nature of the transactions and the role that the offender played and where he might be seen to reside within the organisation exploiting the market on these occasions.
The Crown notes, and I agree, this was a sophisticated criminal enterprise for the packaging and sale of significant quantities of MDMA. The Crown asserts that the offender was the driver collecting the drugs from another member of the operation, taken to designated meeting places to make delivery and exchange the drugs for cash. The offender was not involved in contacting the buyer, that was organised through Moise, nor was he involved in identifying and arranging the quantity of the prohibited drugs to be sold in the transactions, nor was he involved in the pricing. He was involved in supplying the drug on four separate occasions reflecting that this was an ongoing enterprise. The total quantity according to the facts was 3,942.4 grams as I have calculated. The large commercial quantity for MDMA is 500 grams. More than eight times that quantity was supplied.
The Crown observes that the misconduct was, as often found, a clandestine exercise in which it is difficult to determine the precise nature and extent of the criminal structure and those who are engaged upon it at the higher levels. It is challenging to precisely identify the categorisation appropriate for the entire role of the offender. The fact is though that he is one of those meeting face to face with the purchaser, even in these larger quantities, is at the greatest risk of arrest leaving those such as the man, Som, to be protected from exposure in the transactions, and if there are others above him to isolate them from risk. It should not be overlooked though that but for people such as this offender and Moise, those such as Som and others at a more senior level would not be able to engage upon the crime without the risk of exposure.
The offender and Moise significantly facilitated the criminal enterprise. It is clear that the offender was held in some regard given the trust that is implicit in these transactions, handling this quantity of drug and the amount of money involved in each case. It is, in my view not to the point, and I note that this was not submitted to me, that the drugs were intercepted and did not find their way into the community. That did not come about as a result of anything the offender or those with him did, but because of the opportunities taken by law enforcement to identify the perpetrators of this conduct and take steps to gather evidence and seize the drugs and arrest.
In respect of all of the offences, the Crown has invited my attention to the aggravating factors that are relevant. In the case of the specially aggravated break and enter, there was the threat of violence with the offender armed with a firearm pointed in the direction of the victim: s 21A(2)(b). The offence was committed in the presence of a child under 18 years of age. Damon Tran was ten, present on the premises, albeit upstairs and apparently out of sight of the offender: s 21A(2)(ea). The offence was committed in the home of the victim: s 21A(2)(eb). I said earlier that implicit is the fact that this was a breaking and entering of premises but I agree that the fact that it was in the home of the victim is an aggravating factor to be brought to account. The Crown also points to s 21A(2)(m); there were multiple victims, three of them in this case.
The mitigating factors upon which the offender can rely are confined. He has his plea of guilty: s 21A(3)(k), and of course that sounds in remorse and contrition which must be synthesised with all other relevant factors, and thereupon the discount of 5% as I have earlier announced will be applied.
The Crown concedes there are no aggravating factors to be found in respect of the firearms offences as provided in s 21A(2) Crimes (Sentencing Procedure) Act 1999. The Crown notes the pleas of guilty in respect of those offences.
In respect of the large commercial supply, this was planned and organised criminal activity: s 21A(2)(n), with the individuals having their defined roles. There is the mitigating factor of his plea of guilty in this case as well as the firearms offences.
I am about to go to the judgements that were delivered in respect of each of the co-offenders and then I will deal with the subjective case.
With regard to what I said earlier about the large commercial supply falling within midrange objectively, I summarised the particulars of the argument given by the Crown in support of that proposition and I note the submission, which I accept, that that assessment is to be made upon balancing the sophisticated nature of the operation, the quantity of the drug and the offender's role. I make that observation because I am about to come to the sentences imposed for the co-offenders.

CO-OFFENDERS

The first in time was the sentence imposed upon Sophorn Som on 1 March 2021 by Judge Craigie SC of the District Court of New South Wales at Parramatta.
His Honour referred to the total quantity of drugs in that case of 4,935.1 grams. I believe it might have been an error and that his Honour has overlooked one quantity of the drug which took it up over 5000 grams, but ultimately that is neither here nor there. His Honour refers to facts in rather more succinct terms than I have chosen to adopt in the judgement in this case. He dealt with the offender on the basis that he was to be paid by a more senior member of the enterprise. The involvement of that offender was, according to the findings made, that Som was supplied by a person he knew as Uncle and he would then supply the drugs on to others who would then in turn supply them to others further along the line, one of whom ultimately was the undercover operative.
His Honour said that that offender was being rewarded for his involvement at the rate of 1000 a kilo, whatever that might mean. It would appear his Honour means $1000 for each kilo that he transacted. His Honour noted the sophistication using the encrypted phone application. His Honour noted that the misconduct was in disregard of the danger posed by the supply of these substances to the detriment of the public. He was a person of prior good character with a substantial subjective case.
He provided evidence by way of an affidavit and was cross-examined upon his representations in court as to his circumstances and the loss of his mother. His work history was discussed in detail. He was a user of cocaine which he had been attempting to reduce. The impact of the loss of his mother was a factor that moved his Honour to come to the decision that he did. His progress toward rehabilitation was discussed, his strong family connections. His childhood was unremarkable according to the psychological assessment. He had a gambling debt of some $35,000 that he was attempting to address, and he described how he was introduced to the enterprise being offered, $1000 per delivery, each delivery of course being of one kilo.
His Honour concluded ultimately that the matter should be dealt with by way of imprisonment, which was really the only outcome, and upon the discount allowed for the plea of guilty of 25% he was ordered to serve a sentence of four years and six months including a non-parole period of two years and three months. Clearly there was finding of special circumstances.
Judge Flannery dealt with Moise on 13 August 2021. She did not total the quantity of the drugs but specified the individual amounts which came to 5,925.2 grams as I calculated drawing upon the judgement. She summarised the facts consistently with what I have before me. She looked at the role of the offender but saw it as, although not insignificant, at a low level because of the vulnerability to detection. She accepted the sophistication of the enterprise for which he was not responsible.
She went into depth with his subjective case. He had no meaningful or relevant antecedent record. He had achieved significant qualifications academically and had formed a relationship with his wife of Spanish nationality. He began his own business when they moved to live in Spain, had committed to a significant debt, but ultimately because of the failure of the enterprise to generate enough income he was separated from his wife and children, unable to travel because he could not afford to return to Spain to be with them.
The conduct was out of character. He embarked upon the misconduct to meet his financial impairment, as he perceived it, and was suffering a moderately severe mental disorder during the period of the offending, which contributed to his poor decision making and lack of consequential reasoning, exacerbated by alcohol and polydrug use to which he resorted as a consequence of the challenges that he faced following the failure of his business and the inability to re-join his family.
Her Honour was aware of the sentence imposed by Judge Craigie and dealt with the parity question. There was only one offence upon which sentence was to be imposed together with some Form 1 offences. He too was paid $1000 per kilogram delivered. It would appear that, although it is not made clear on the material I have, that this was the reward that this offender was to receive. Her Honour imposed a sentence of four and a half years with a non-parole period of two and a half years on a finding of special circumstances.
As the Crown correctly identifies parity is a consideration and although one might view the sentences imposed as being perhaps moderate, to embark upon a more serious level of punishment in respect of the drug supply charge for this offender could excite a sense of grievance.
There are differences though between those cases and this. This offender has a remarkably more serious record of antecedence accumulated through his life and cannot come before the Court as a person of otherwise good character. He has no entitlement to leniency as a consequence. He was not subject to conditional liberty at the time of these offences.

THE OFFENDER

He was born in 1990 and he is now 32 years of age. His antecedents have been accumulated here and in Queensland. The offences in Queensland began in June of 2007 when he was charged with assault occasioning bodily harm whilst armed and in company. Without conviction he was ordered to submit to probation and pay compensation. In 2008 he breached bail; without conviction he was fined. In August 2008 for breaching a probation order in respect of the assault occasioning bodily harm offence to which I referred, he was admonished and discharged. In November 2008 he was convicted for that offence and imprisoned for 12 months. The matter had been brought back to the Court apparently for some breach.
Then in November 2009 for committing a public nuisance, there was no conviction recorded and he was ordered to a recognizance. In February 2011 for an unlawful assault occasioning bodily harm in company, he was imprisoned for 12 months to be served cumulatively on another sentence. In January 2012 for forgery offences, he was convicted and sentenced to the rising of the Court. For other offences of fraud he was convicted and imprisoned for 18 months, suspended for four years. In June 2012 he was before the Court for further fraud and dishonesty offences for which he was imprisoned for four months, suspended for a period of two years. He was also before the Court for publishing or possessing instructions for producing dangerous drugs for which he was sentenced for six months, suspended. In November 2013, taking a prohibited thing into a corrective services facility, he was sentenced to 14 days and in November 2014 for being in possession of a knife in a public place he was convicted and fined.
That concludes the record in Queensland and we now come to his misconduct in New South Wales. His first court appearance here was in September 2016 for damaging property, intimidation and assault occasioning actual bodily harm. For each of those he was imprisoned to concurrent sentences of one month and nine months respectively. In September 2016 in the same court for displaying an unauthorised number plate he was convicted without penalty. For a police pursuit he was imprisoned for 20 months with a non-parole period of nine months. For a second police pursuit he was again imprisoned for 20 months including a non-parole period of nine months concurrent with the earlier sentence; disqualification of two years was ordered.
In September 2020 for being unaccompanied as a learned driver, he was convicted without a penalty. In September 2016 for using offensive language and assaulting a police officer, there was conviction without penalty for the language offence but for the assaulting a police officer he suffered six months imprisonment. Then in July 2020 for driving whilst disqualified, he was fined and disqualified for a further period.
His custodial record has him in custody between 20 April 2016 and 18 April 2018 in New South Wales until he was paroled. He returned to custody though on 30 January 2020 and remained in custody since that time. His arrest on 29 January 2020 meant that he was in the police custody before entering corrective services on the 30th. He has not been without difficulty in gaol because he has punishment details beginning in September 2016 for fighting, in November 2016 for fighting, in August 2017 for creating or possessing prohibited goods, in July 2020 for fighting, in July 2020 for providing false particulars, again in July 2020 for failure to comply with routine. In July 2020 for intimidation, in August 2021 for damaging property, in May 2022 for unlawfully receiving an article and then in May 2022 for unlawfully using a phone. He was punished for each of those.
A sentence assessment report was provided. This was written on 21 November 2022. He has accommodation awaiting him in the Liverpool/Moorebank area. He reported a strained relationship with his father and minimal contact with his extended family. He currently has a job as a sweeper and he has employment awaiting him in the scaffolding industry if he is released, which cannot happen for some little time yet.
His history of mostly domestic violence assault and driving offences is noted but it is also noted that by reason of the matters before this Court his misconduct appears to be escalating. He said that he had no choice but to offend as he was threatened and feared for his safety. That must relate to the firearms offences, although I note that the offences listed in the report include the firearms offences and the break and enter offence and the supply offence as well. That representation though must be with regard to the firearms possession offences I expect.
He is said to accept the responsibility for the drug supply offence but he does not remember why he was in possession of a firearm or why he was inside the house with the co-offender. That is something that I could not accept on the material that I have before me or the description of the offence to which he has admitted in the statement of agreed facts. He attributes his involvement in the supply of drugs to his association with antisocial peers linked to outlaw motorcycle gangs. That is not further explained. He said he was threatened to participate and feared for his safety if he reported this to the police. There is no evidence before me upon which I would be prepared to make any such finding.
He spoke of his history of alcohol and drug abuse. He admitted that he was using acid, Ice, and alcohol, that he was tripping and couldn't remember aspects of his offending. He said he has been abstinent in custody. He has been diagnosed with bipolar attention deficit hyperactivity disorder and post‑traumatic stress disorder and alcohol foetal syndrome. I do not accept that as an entirely accurate statement to which I shall give further comment in due course. He reported suffering from poor mental health exacerbated by substance use.
His insight into the offending was predominantly out of self-concern. He acknowledged that the victims of a home invasion would have been scared but minimised the offending by saying that he did not hurt anyone and did not steal anything. He is willing to undertake intervention. He successfully completed the addiction support program at the MRRC. He is assessed at a medium risk of re-offending, according to this report.
The material tendered on his behalf requires further comment. The offender did not give evidence enlivening the circumspection for which the judgement of Smart AJ in R v Qutami [2001] NSWCCA 353 and of Wilson J in Imbornone v R [2017] NSWCCA 144 stand as authority.
In this instance I noted that there was on the face of things inconsistency between the opinions expressed by a psychologist upon whom the offender relied, and other material tendered in his case which did not include medical information to which the psychologist merely alluded. Moreover, her opinions were reached from material which did not include the home invasion offence and the circumstances in which it was committed.
The opportunity was given to adduce further evidence which occurred on the afternoon of December 15, 2022, after further submissions were advanced and the matter adjourned overnight for judgement and sentence. It was initially argued that in circumstances where the Crown consented to the tender of the psychologist report and did not require her for cross-examination, the Court could comfortably determine the matter without further analysis of the material leading to the opinions proffered but I do not accept this.
I was invited to Lloyd v R [2022] NSWCCA 18 in which there was comment regarding the need for sentencing courts to attribute appropriate weight such material tendered by consent and without objection. However, at para [42] McCallum JA wrote with my emphasis; "I make these observations in the context that, in the principal passage addressing the Bugmy submission, the judge accepted the factual premise of that submission. Accordingly, this Court can and should proceed on the same factual basis. The reason I raise the issue is that, elsewhere in the judgement, his Honour said, "this is a self-report without any confirmatory evidence, although his prior history clearly indicates that this man has had a long history of drug abuse." The import of those remarks is unclear. Ms Hübner's report was tendered without objection and admitted without qualification. The history given to her by the applicant was relevant because it provided the basis on which she was able to give evidence of assistance to the Court. That is not to say that the judge was obliged to accept the facts asserted without critical analysis. However, in the absence of any objection by the Crown, to the extent that the judge was minded to doubt the facts stated, procedural fairness required that his Honour identify any such doubt so as to give the applicant an opportunity to address it."
In the present case I raised my concerns from my perception of inconsistency and in response, though the offender did not give evidence, material was adduced to address those concerns.
The offender was assessed by psychologist Ann-Marie De Santa Brigida from Mindways Psychological Services who provided a report written on 21 July 2021 following assessments on 25 March 2021, 12 April 2021, and 19 May 2021. Unfortunately she was not told of the home invasion offence, the nature of it and the conduct upon which the offender there engaged. I would have thought that to be important to her assessment. Moreover, she referred to material in the form of medical records that was not replicated in any adequate detail in her report. Neither was I provided with a copy of these documents, notwithstanding that, six months had elapsed from her assessment until the hearing of this matter. She was not asked to provide a further report commenting upon the impact the home invasion offence might have had upon her opinions.
In the first tender of the offender's material I found that there were significant inconsistencies between the opinions offered by the psychologist on the one hand, and on the other, the nature of the conduct in which the offender engaged in the home invasion and the drug supply offences and the opinion offered by the offender's employer. I exposed these concerns to the offender's counsel and he sought further time to assemble material and call evidence and this occurred on 15 December 2022.
The psychologist report was prepared upon information given to the psychologist by the offender and the agreed facts on sentence, a telephone contact with the offender's partner, his antecedents, and discharge summaries from Bankstown Hospital and St Vincent's Hospital, and the results of psychometric testing. In the report at p 4 she attributes to the offender in relation to the weapons offences that he was in fear of his safety, that he reported he had been previously associated with the Finks and then the Mongols, both notorious outlaw motorcycle gangs, but left all gang association in 2013/2014.
He said that he had a Firearms Prohibition Order placed on him in 2019. Following this his name was published in a newspaper in Sydney in relation to his driving record and stated that he lived in Riverwood. There was included in the material subsequently tendered images of the publication in the newspaper showing the offender's picture, his address, and the particulars of the police pursuit offence of which he was found guilty and in respect of which he was punished, to which I referred when I was rehearsing his antecedent record. It also specified that he lived in Riverwood and that he was employed as a scaffolder.
He said following this publication he was getting out of his car when he was grabbed by two unknown individuals and hit on the head with a pistol. He said he was stripped naked and assaulted and that he made a break for it; he was shot at but it missed. He reported that he was worried for his safety and had firearms for protection.
The Crown received information from the police in response to inquiries made as a result of what I had raised and according to the information they provided there is a COPS event in relation to an occurrence on 24 July 2019. The police could not confirm if he was kidnapped as he did not provide a statement. Police attended after reports that shots were heard. The police observed that he had injuries to his face, there was blood on the floor of the premises, and they appeared to be ransacked.
This is slightly different to the representations attributed to him by the psychologist who has him alighting from his car when he was grabbed by two unknown individuals and hit on the head with a pistol, stripped naked and assaulted and then made a break but was shot at. Included in the material the police provided to the Crown are black and white images of the premises, it appears, where the offender was at the time living. They are in a disrupted state with drawers pulled out and items strewn on the floor and there is what appears to be fingerprint powder over the items of furniture in the premises depicted in the photographs. There are eight photographs in all. Notwithstanding upon the description given to the psychologist this was an event of some significance, he chose not to make a statement or to involve the police in the investigation of the matter to provide whatever protection that might enliven.
He left the gang association in 2013 to 2014. These events occurred, according to what the police have provided, on 24 July 2019 and the offence of supply prohibited drug was between October 29 and 24 December 2019, 31 October 2019, and 24 December 2019. He was found in possession of the weapons on 29 January 2020, shortly thereafter. The home invasion occurred before then on 17 November 2019.
Whatever fears the offender had, it did not discourage him from participating in that event first in time in the sequence.
With regard to the supply offence, he is attributed with the representation that this occurred in the context of his drug problem; that is later discussed in the report; and that he had an outstanding debt of $20,000 to be paid. He is attributed with his expressions of remorse. He presented promptly at each assessment. He is said to have adjusted to his institutional arrangements subject to the difficulties he experienced with lockdown during the pandemic that has burdened everyone in the community and particularly those who are unfortunately in gaol. He said he had only one charge in custody for intimidation of an officer, that does not compare with the record of offences to which I have already referred. He said he has an anger problem, that he gets frustrated in a cell when he is with someone.
His family background is discussed. His mother left the family unit when he was aged one due to severe domestic violence. She reportedly stabbed his father in the chest prior to his conception. He was raised by his father and they moved around constantly mostly living in caravan parks. He is the only child of this relationship. His father was said to be aggressive and violent. He would poke him with a golf club every night. He would punch him in the head. His father was an alcoholic. He represented that his mother was also alcohol dependent and addicted to heroin and used alcohol and heroin when pregnant with him. It is upon that second hand hearsay representation, that the psychologist ultimately thought there was a possibility that he might suffer from foetal alcohol syndrome. It is not possible to make a finding in those terms because there are insufficient bases upon which to offer that as a possible diagnosis.
He spoke of having been the victim of sexual assault, described by him as rape when he was aged 10, and that he was told by this perpetrator that he would be killed and his caravan would be burnt with him and his father in it if he reported what had occurred. There was a new relationship formed by his father when he was around 11. There were two children. It is not clear whether they were born to that union or whether they came to the union but one way or another that relationship came to an end because of his father's assaults of the woman. He was kicked out of home by the age of 16. He was assaulted by his father. He began to attack his father and said he hasn't seen his father since 2016 although there has been phone contact since he was in custody.
He was in a relationship with a woman named McGee, aged 30 and there is a description of her status and role. They separated but they reunited after his arrest and she offers support for him. His education and employment are discussed. He had a difficult time at school it is said because he had thick lens glasses. He was in juvenile detention by the age of 17. In Queensland he began an apprenticeship as a butcher and when he came to Sydney in 2016 he gained employment with AMS Scaffolding to which I will refer in a moment. He began experimenting with drugs at age 14. His father allowed him to smoke cannabis. He began using alcohol at the age of 15 and drank heavily. He used crystal methylamphetamine at the age of 16, introduced to it by his father.
He had a psychological profile provided by the psychologist. She attributes him with conduct disorder childhood-onset because of the multiple factors she identified as consistent, including fighting with peers, multiple suspensions from school, stealing and stealing food from other children at school, difficulty relating to peers and physical aggression demonstrated toward others. These characteristics were also found in people with ADHD; the psychologist defers the diagnosis of antisocial personality disorder.
I will first make this comment. This psychologist is not qualified to offer any diagnosis. The most she can do is offer what she has allegedly observed of the offender which might or might not be consistent with the diagnosis properly made by someone qualified to do so.
She said at 6.4 that she noted on the initial assessment facial features which appear to be possibly consistent with a diagnosis of foetal alcohol syndrome and went on to describe what they might be. She continued, there was insufficient evidence available to her that would indicate that to be a primary diagnosis, but she relied upon the second-hand hearsay representations about his mother having consumed alcohol throughout his pregnancy, something of which the offender could not have known. There is no way I have of assessing the truth or accuracy of that perception.
There was a delay in his language development. He had difficulty with reading and writing. He underwent the Kaufman Brief Intelligence Test and the scores are there provided. He would be expected to struggle with poor regulation of emotional and behavioural changes, difficulties in executive functions, difficulties with communication, difficulties with literacy and numeracy, learning difficulties and understanding instructions, behavioural problems, problems paying attention, tendency to act immaturely in social situations and behave spontaneously, concrete approach to problems, limited understanding of risk taking, immature social judgement, difficulty to reason and apply good judgement.
The CAARS, namely the Conners' Adult ADHD Rating Scales were administered and this raised the possibility of ADHD impacting upon the offender from a young age. Drawing upon his own assessment of his experiences when in school she found support for the conclusion that she offers in that regard. There is reference to him having been diagnosed with bipolar affective disorder for which he was prescribed Epilim. At the point of the tender of this material there was nothing beyond that bare description to support that proposition. She offered the diagnosis of post‑traumatic stress disorder, a differential diagnosis of bipolar effective disorder, and she went on to discuss complex post‑traumatic stress disorder and offer opinion as to the connection between PTSD and explosive anger problems. He was administered several standardised tests including one to assess whether he was malingering and deceiving in the processes, intelligence testing, his personality assessment, his depression and anxiety scales and risk assessment.
She provides an analysis of dynamic and static factors that impact upon the assessment of risk and ultimately concludes that he had an extremely complicated presentation. She again proffers the foetal alcohol syndrome disorder proposition which I do not accept.
His background in caravan parks in the care of his father, when allegedly raped by another male, in the absence of evidence that might challenge those representations I must in my opinion extend him the benefit of a finding that he has grown through his formative years in circumstances to which the Bugmy principles have application.
I should add that until the point of this further material I had thought that report to be of limited, if any, assistance in the assessment of this matter, however I must say at my urging his counsel and his instructing solicitor arranged for further material to be put before the Court including the progress notes provided by Bankstown Hospital and St Vincent's Hospital. It was said to me that I need not trouble myself with the detail of these documents but I do not agree with that. I have gone through them carefully.
The first documents deal with his arrival on 31 December 2019 and departure on 1 January 2020 at St Vincent's Hospital with a diagnosis of bipolar effective disorder unspecified. Matters of note are that he reported recently feeling agitated ++, unable to control his anger and fears that he would hurt other people occurring in the context of recent relationship breakdown + loss of job. He acknowledged having smoked crystal methamphetamine that morning and had used cocaine and alcohol apparently within the last few days. It was noted that he was a man of stated age with tattoos down both arms, a shaved head, glasses with psychomotor agitation plus punching his hands while talking with expressions of speech. The plan was to sedate him with diazepam and olanzapine and to have him referred to mental health.
The documents that follow are not entirely comprehensive and there is a great use of acronyms such as the letters GF to represent "girlfriend" who brought him to the hospital with "MH", namely mental health issues, and he was to be discharged with ACT, which is I understand it to mean the Acute Care Team to follow up. He has a long history of mental health with medication in the past. His current stressors were separation from his partner, he feels that he has lost his family. He spent more time at home, his attendance at work has declined causing to be at risk of losing his house. He had not been using alcohol or drugs in the past few days, according to this entry. Currently not working due to mental health concerns. He normally works as a labourer. He had a triage - details upon being referred by a doctor - an intern at Bankstown emergency department.
He presented on this occasion with a long history of drug abuse, Ice, alcohol and cocaine and mood issues associated with them. He was not psychotic and there were nil issues regarding TOSH, whatever that might stand for, or suicide ideation. He reported a diagnosis of bipolar effective disorder as well as anger management issues and the document proceeds with entries, and information consistent with him having mental health problems.
Of concern though is an assessment of risk appearing at a page identified as 6 of 6 where it says, "He adamantly denied suicidal thoughts or DSH" which suggests something to do with self-harm. He said, "I'm not weak like that" and "No way, that's for weak people". On the other hand he said if someone crossed his path he would have no qualms in harming them. Violence to others, highly changeable, he fantasises about harming people and says that he will hurt people if they cross him. He was fixated on attending the facility at Gorman House and was not interested in taking any other information. He was apparently upon one reading of this material somewhat difficult.
There is another entry which speaks of him having been responsive, having been in solitary confinement, having pushed people away with his aggression and how he can be triggered by small issues. He spoke of taking Epilim regularly. There was a letter from the Acute Care Team at St George Hospital giving him advice as to what steps he might take to manage his difficulties. There is reference to his presentation at St Vincent's emergency department on 31 December 2019. A mental health review was thought necessary due to feelings of high levels of anger and recent stressors including his relationship breakdown.
I do not intend to go through the documents, page by page, but accept that they are sufficient to indicate that he presented in that period of time, which was proximate to and within the timeframe of this offending, suffering from impaired mental health, which I accept. The precise extent though and the impact of it upon him within the context of the offending, bearing in mind the facts to which he has pleaded guilty, including the facts and circumstances of the home invasion, and the measure of sophistication involved in his role in the drug supply, does not sit comfortably with what the psychologist provided, or the representations from the hospitals, which I accept, however, because of the independence of the source of that information.
Material tendered included his letter to the psychologist. He wants to get out so he can start to follow a better path in life. He wants to develop his goals. He speaks of what he is doing in gaol, studying the bible. He has provided a letter to the Court explaining why he committed these crimes but not excusing his actions. He said he had been on different drugs including steroids and growth hormones as well as Ice, cocaine and cannabis and not taking medication he needs for his mental health. He spoke of the crowd with whom he was associating influencing him into the direction that he now regrets and that led him to gaol. He has had time to think of his circumstances in the last two years and eight months. He has been going to chapel regularly. He sees this as a wakeup call and he will not reoffend. He only wants to do better for himself and continue working in scaffolding.
He provided a document from Remand Addictions, a letter of attendance showing his attendance in that course which I read. I read his letter to the psychologist and his letter to me of course as the sentencing judge, all to the same effect. He provided by way of his representatives the document evidencing his successful completion of the Addiction Support Program called Remand Addiction and it is said that his contributions in that participation show a high level of understanding of the topics covered. There is a letter written by New Path Legal to the offender at the MRRC, a specialised injury law firm that focuses on institutional abuse claims. This is not conduct that matches that which he reported to the psychologist where he was allegedly raped, but not in any institutional setting; that was acknowledged by his counsel in the course of the presentation of the matter.

CONSIDERATION

I now come to what was significant in this case.
A point I made in the course of alerting counsel to my suspicions regarding the work of the psychologist and its reliability was that her assessment of him has him significantly impaired, if one was to accept her opinions, and yet he demonstrated skill and capacity in the crimes with which he is charged in the home invasion and the supply of the drugs. Moreover the letter provided by his former employer has him as a valued qualified and competent employee. He was with the company for up to two years before going to gaol but was known to the author of the letter for some six years. He started as a labourer but reached the level of leading site supervisor. His duties included but were not limited to evaluating hazards, controlling risks, and undertaking regular inspections of systems and equipment, arranging preventative maintenance of machinery as required, working closely with senior management and builders to ensure a safe and efficient operation of the site, and maintaining accurate records of scaffolding material, and ensuring the employees complete the job in a safe manner. Those characteristics have him performing at a significant level of competency.
He has been a huge loss since he has gone to gaol and when released they look forward to his return to work. The author of the document has spoken to the offender about focusing on his future. He is training everyday which helps his mental health. Counsel took the opportunity to call the author of that report, Nicolas Mikael, and he gave evidence by consent by way of a telephone link up. He was introduced to the offender by his brother. His brother and the offender met each other when they were in gaol together, which is really is neither here nor there at the moment. He spoke of him in positive terms but it became apparent that he recognised the difficulties in controlling behaviour exhibited by the offender. He said that he is someone whom he has learned to rely upon. He said that he was really good at his job, took no shortcuts. He has never let him down. He has 14 to 15 employees in this enterprise.
He is aware of the offences with which he is charged. The offender apologised to him for letting the company down and for letting him down and he would definitely employ him again. He spoke of his patterned behaviour when, as he put it, he was off his medications. He took opportunities to speak one on one in a setting that would facilitate the process so that he might calm the offender's temper. He said that his reactions were on occasion a bit extreme. He has had a few meltdowns. He said his behaviour is definitely different but he is relentless with getting his work done and would talk him through when he needed it so that he might return to his medication. He encouraged him to return to his medication to assist his behaviour.
He said there were three or four occasions when he became more emotional than he ought. He said that he would generally organise, plan and although the task was not complex, he always did it well. He had no difficulty following instructions. He said, when asked about his attention span, he sometimes got a bit edgy, attention would shift, but he was generally pretty good. There was a propensity to react rather than give considered response to certain circumstances but generally he showed good judgement, he had a good memory, he communicated well with others on the site, and it was apparent to Mr Mikael that he had some sort of mental health issue.
The description given by Mr Mikael is somewhat consistent with what might be, in my experience, autism, perhaps at a lower level. I do not suggest that I am qualified to make any such assessment but the approach taken by the psychologist would seem to add complication rather than elucidate clarity. It did not seem to give enough attention to this patterned behaviour described by the employer. It suggested, at least to me, the possibility that the autism spectrum disorder might have been consideration in whatever assessment is made of him.
I noted in the other material that came from the hospital that there was an inquiry made from Justice Health but they could not release information without the consent of the offender. There is nothing before me from Justice Health, notwithstanding that he has been in gaol for in excess of two years, approaching three years, and if there were difficulties there one might have expected that there would be some assistance provided and some information given to the Court.
So that brings me to the task of finally concluding the matter. I am satisfied that there is evidence of impaired mental health affecting the offender but whether this is referable in part or entirely to his nature or his misuse of prohibited drugs such as methylamphetamine causing his emotional state is difficult to determine with any precision. Nonetheless, I accept the evidence from which I infer there is underlying impaired mental health which must have been exacerbated by his ingestion of the substances which he has acknowledged. Any intoxication therefrom in the commission of the offences is not available in mitigation by force of s 21A(5AA) Crimes (Sentencing Procedure) Act 1999, but his misuse of substances is relevant as part of the offender's background as it evolved through what is said to have been challenging times in his formative years, consistent with the statements of principle to be found in Bugmy v The Queen [2013] HCA 37 and the discussion by Woods CJ at CL in R v Henry et al [1999] NSWCCA 111.
This impacts upon his moral culpability but that is counter-balanced by the risk he poses to the community reflected in these crimes including his ready access and retention of loaded weapons with ample ammunition by which one could take life. The assertion that he was armed because of his perceived need to protect himself does little, if anything, to mitigate. If he was the subject of an attack, whatever it might have involved, considering that there are apparently two versions before me, he had the opportunity to do what all citizens may, namely call, in aid of his circumstances the police to investigate and deal with the matter. It is unacceptable that he should have been armed for these reasons, willing to resort to self-help with deadly force should he have perceived the need to do so. General deterrence for the weapons and ammunition offences requires considerable weight.
I should observe that my observations regarding the possibility of two versions regarding the event from which he says he holds fear is not a concluded view because it simply might be the paucity of information provided by the psychologist regarding that in contrast to what was provided by the police. It might be the case that if he was so treated by some other individuals it might have occurred as he left his motor vehicle near to his home but it is not clear. There is simply insufficient material before me upon which I can make any such finding.
All purposes of sentencing are here engaged. General deterrence looms large in respect of each of these offences. His need for a sentence to address specific deterrence is also noted. His conduct needs to be denounced. Home invasions are not to be tolerated regardless of the circumstances and motivation for them, and to be possessed of weapons such as this is of great concern. It is well known of course the impact that prohibited drugs have on the community and the benefit that derives to those engaged upon such conduct, particularly those at the higher levels. This must be addressed by way of an appropriate sentence upon those who are willing to facilitate the principals in the organisation such as this offender has done.
Harm to the community must be recognised. Harm to the particular victims must be recognised and the conduct must be denounced. There must be appropriate punishment.
I accept that the offender has demonstrated contrition and remorse. Whether it is complete, is another question, but I accept that he has provided evidence thereof. I accept that he is anxious to rehabilitate and to change direction in his life. Whether he is capable of doing so I simply do not know. I am guarded in my assessment of his prospects for rehabilitation though I accept him to be sincere in his expressions made in that regard.
There is no choice other than to impose a sentence of imprisonment for these offences and they are to be served by a period in custody. Considerations of parity have led me to adopt a sentence that reflects comparatively with the sentences imposed upon the other two offenders in the drug supply charge. At the very least he is close to the level of activities of Moise in his participation, though I note that he was also connecting with Som in the course of the transactions, but all that said, and bringing into account what was said by the judges who heard the other two cases, it seemed to me that I should adopt a comparable sentence in respect of that matter.

THE SENTENCE

The sentences I propose as appropriate for each of these cases are as follow.
For the offence charged to sequence 12, the home invasion, a non-parole period of 5 years and 4 months as part of a head sentence of 9 years and six months including therein a discount of 5% for the plea of guilty.
For all of the other offences the discount is one of 25%.
The offence charged to sequence 3 of possessing the Winchester rifle in contravention of the order, the sentence is one of 5 years and 3 months.
In respect of the possession of the ammunition, sequence 4, the sentence is one of 2 years and 6 months.
In respect of the offence, sequence 6 of possessing the unlicensed Ruger, a non‑parole period of 3 years with a head sentence of 4 years and 9 months.
Sequence 7, the offence of possessing the shortened Winchester rifle, a prohibited firearm, a non-parole period of 3 years with a head sentence of 4 years and 9 months.
For the offence in sequence 19, possessing the Ruger pistol in contravention of the Firearms Prohibition Order, a sentence of 5 years and 3 months.
For sequence 8, failing to keep the prohibited weapon safe and sequence 14 in respect of the other item, that is the Winchester rifle shortened and the Ruger pistol respectively, the sentence in each case I identify as 1 year.
And for the charge of supply the large commercial quantity of prohibited drug, the sentence I specify is one of 4 years and 6 months with a non‑parole period of 2 years and 9 months.
Pursuant to s 53A Crimes (Sentencing Procedure) Act 1999, I specify an aggregate sentence. I impose a non-parole period of 8 years against the overall aggregate sentence of 12 years. It shall be taken to have commenced on 29 January 2020. He will be eligible to be released to parole on 28 January 2028 and the overall sentence will expire on 28 January 2032.
I will repeat those dates so that they are understood.
I have decided to impose the aggregate sentence of imprisonment. It shall consist of the non‑parole period of 8 years commencing on 29 January 2020 with a head sentence of 12 years. The offender will be eligible to be release to parole on 28 January 2028. The indicative sentences for each of these offences are:
Sequence 12, the home invasion, a non-parole period of 5 years and 4 months with a head sentence of 9 years, 6 months.
For the offence charged in sequence 3, possessing the Winchester rifle in contravention, a sentence of 5 years and 3 months.
For the offence of possessing ammunition, sequence 4, 2 years, 6 months.
For the offence of possessing the unlicensed Ruger pistol, sequence 6, non-parole period of 3 years and the head sentence of 4 years and 9 months.
For the offence of possession of the shortened Winchester rifle, a prohibited firearm, a non-parole period of 3 years with a head sentence of 4 years and 9 months.
For sequence 19, possessing the Ruger pistol in contravention, a sentence of 5 years and 3 months.
For the offence in sequence 8, failing to keep the firearm safely and in sequence 14 the comparable offence in respect of the other weapon, in each case the sentence is one of 1 year.
And for the supply large commercial quantity of MDMA, as I said a non‑parole period of 2 years and 9 months with an overall sentence of 4 years and 6 months, all of those aggregated into the sentence I have announced.
The exhibits can remain on file for such period as the parties might require. I will order that my judgement be taken out so we will have it available for me when I deal with Ms Nguyen.
No further orders are sought.
In response to the Crown's advice of possible confiscation proceedings grant the parties liberty to apply.

Amendments 03 March 2023 - Removed exchange between bench and bar table regarding any further orders sought DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 March 2023

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Cases Cited (12)