R v Hrncic

THE OFFENCES TO BE TAKEN INTO ACCOUNT

1. When I determine sentence he asks that additional offences are taken into account. First, with regard to the offence of reckless wounding, the offence to be taken into account is one of being in possession of a knife in a public place without reasonable excuse contrary to s 11C(1) Summary Offences Act 1988; this is sequence 2; the maximum penalty for this offence is imprisonment for two years and a fine represented by 20 penalty units.
2. The offence charged in sequence 8, dealing with property suspected to be proceeds of crime contrary to s 193C(2) Crimes Act 1900, is to be considered in the assessment of sentence for the supply cocaine charge, sequence 16.
3. Sequence 9, dealing with the property suspected to be the proceeds of crime contrary to s 193C(2) Crimes Act 1900, the second such offence, is to be considered when determining the sentence for the offence charged in sequence 16, supplying cocaine.
4. The amount of money for the first proceeds of crime offence was $780 and for the second offence was $8,750. The maximum penalty specified for that offence upon indictment is imprisonment for three years but in the Local Court the jurisdiction is limited to two years imprisonment and a fine represented by 50 penalty units.

RELATED OFFENCES

1. There are related offences that are before me pursuant to s 166 Criminal Procedure Act 1986. These are sequence 10, possessing cannabis contrary to s 10(1) Drug Misuse and Trafficking Act 1985 for which the maximum penalty is imprisonment for two years and a fine represented by 20 penalty units, and sequence 14 possessing human growth hormone Somatropin contrary to s 16(1) Poisons and Therapeutic Goods Act 1966 for which the maximum penalty is imprisonment for six months and a fine represented by 20 penalty units.

PLEAS OF GUILTY

1. The offender was committed for sentence after he pleaded guilty in the Local Court on 19 July 2021 and thus these are matters to which Part 3 Div. 1A Crimes (Sentencing Procedure) Act 1999 applies, and in accordance with s 25D(2)(a) of the Act the discount for the utility of the pleas of guilty entered in respect of the three charges upon which sentence is to be determined as indictable matters is 25% to the sentence that would have otherwise been identified for each of the offences if they were not admitted.
2. In the case of the s 166 offences they are in effect summary charges before the Court pursuant to the provision which allows them to be determined in these proceedings and for those offences he is entitled to the utility discount of 25% in each case to a sentence that might have been imposed but for the plea of guilty in respect of each of those offences, in accordance with the statements of principle by Howie J in R v Borkowski [2006] NSWCCA 102.

PRE-SENTENCE CUSTODY

1. He was arrested on 26 March 2020 and spent 24 hours in custody until he was released subject to bail. His bail conditions were, to some extent, restrictive and constrained his liberty.
2. I have had access to JusticeLink by way of my associate and have noted the bail to which he was subject upon his arrest on 27 March 2020. He was to be of good behaviour, to surrender his passport, not to enter any international airport or other point of departure. He was required to live at a specified address and not to be absent from those premises between 8pm and 8am unless in the company of two named persons. He was to comply with the enforcement conditions, namely that he present himself to the front door at the direction of any police officer to confirm compliance with curfew conditions. That direction might only be given by a police officer who believed on reasonable grounds that it was necessary to do so having regard to the rights of other occupants of the premises to peace and privacy. He was not to make contact or go near Sebastian Lim or any prosecution witness. He was to abstain from alcohol, and illegal and prescription drugs other than those that were prescribed for him. He was to comply with any current apprehended domestic violence order. There was requirement that an acceptable person deposit $10,000 in cash and enter an agreement to forfeit that amount should he fail to comply with his bail acknowledgment.
3. On 30 June 2020 the magistrate varied the bail requiring him to report daily between the hours of 9am and 9pm. The curfew was lifted but other conditions were imposed. The other conditions, aside from the curfew, were not inordinately restrictive.
4. In my view those which applied between 27 March 2020 to 30 June 2020 including the requirement that he observe the curfew must be given some consideration in the assessment of punishment that he has earned by reason of his misconduct.
5. There is authority for the proposition that restrictive bail conditions can be treated as quasi custody: R v Quinlan [2021] NSWCCA 284. At para [88] the following was written: "Nevertheless, there will be occasions when bail conditions are so harsh or restrictive that they may require a conclusion that at least some part of the period on bail should be treated as the notional equivalent of custody, conveniently referred to as "quasi-custody". The onus of establishing whether an offender's bail conditions amount to quasi-custody falls on the offender on the balance of probabilities. As Garling J explained (with the concurrence of Basten JA and myself) in La v R: [42] 'A sentencing court is entitled to take into account any conditions of bail granted to an offender awaiting sentence where those conditions may be particularly harsh or restrictive. Such terms are often referred to as "quasi-custody". Prior to a court taking into account conditions of quasi-custody as a basis for reducing a sentence, or commencing a sentence from an earlier date than it otherwise would have, there has to be an evidentiary foundation to establish the nature, kind and effect of any restrictions: see Bonett v R [2013] NSWCCA 234 at [50] where Adamson J said: 'Whether restrictions outside of gaol amount to quasi-custody is a question of fact: see for example R v Cartwright (1989) 17 NSWLR 243 at 258 per Hunt and Badgery-Parker JJ and R v Serratore [2000] NSWSC 696 per Kirby J at [31]-[35]. The weight to be given to any such quasi-custody in reducing the sentence imposed is a matter for the discretion of the sentencing Judge. Although quasi-custody may be a relevant consideration it is not a mandatory relevant consideration. However, in circumstances where there is an evidentiary foundation for its being taken into account, the sentencing Judge may be obliged, in some circumstances, to have regard to it even when not specifically asked to.' An assessment of whether a person's bail conditions amount to quasi-custody and whether and to what extent an allowance is made by backdating the sentence is a discretionary decision to be made by the sentencing judge in light of the particular facts and circumstances of the case. Such a decision is only reviewable by this Court in accordance with the principles of House v The King at [43]".
6. Though not sufficient to amount to quasi custody, the initial conditions at least did impose constraint upon the offender's liberty between 27 March 2020 and 30 June 2020 and I have brought this to account as part of the punishment suffered by the offender in the synthesis of factors upon which the Court has engaged without quantification of a period of incarceration they might represent.

THE FACTS

1. About 8.30pm on Thursday 26 March 2020 police arrived at Buna Street (at Gannan Park) North Ryde in an unmarked police car. They saw the offender with a man named Fakhouri in a white "No Birds" rental car. The police alighted from their vehicle and approached the driver's side where the offender was seated. The police were dressed in casual clothing. The offender looked in the direction of the police and moved his hands around his lap, then he drove the car about 5 metres forward at slow pace.
2. The police said, 'stop mate, it's the police' and displayed their identification. In response the offender stopped the vehicle.
3. Police approached the driver's side of the offender's car and saw through the open driver's door window a cannabis smoking bong, also described here as a waterpipe, between the offender's legs. The inside of the car smelled strongly of cannabis. Police asked the offender what was going on. The offender replied, "just having a sess". Police asked the offender and Fakhouri to get out of the car which they did. The police then searched the car. They opened the driver's side door and searched a compartment at the bottom of the door; there they found a clip point cutting style knife with saw teeth on the spine of the 16 centimetre blade.
4. The offender told the police that the knife was a display knife and he bought it recently. He later told the police the knife was for decoration purposes and he purchased it from Chinatown in Haymarket on Sunday. He said the knife was in his car as he did not want his mother to see it. He said, "it's never been used".
5. Police noted that the buckle on the knife's sheath was frayed. The knife was not a prohibited weapon; it is this weapon which is the subject of the offence on the Form 1 is being in the possession of a knife in a public place with reasonable excuse.
6. The facts include at p 2 of 17 an image of where the knife was found and images of the knife in the sheath and out of the sheath, and another against a scale showing the length of the blade. The scale is of 14 centimetres. The blade of the knife is about 2 centimetres longer than the scale.
7. Police continued the search of the car and located a grey Armani satchel bag. Inside the satchel bag was a blue bifold wallet containing 13 $50 notes and one $20 note and a $10 note totalling $680. The police found a Gucci brand man bag containing an LV wallet; this contained five $20 notes and personal cards in the name of the offender. The total amount was $780 which is the offence sequence 8 to be taken into account in the determination of the sentence for supplying cocaine. This is the first of the offences of dealing with property suspected to be the proceeds of crime.
8. The grey satchel bag also contained a small silvery resealable foil packet which contained 2.6 grams of cannabis leaf and three mobile phones. The offender told the police that he had the phones because they are insurance claims. During the conversation with the offender the police noticed an unusual bulge in his pants; they suspected he was concealing further drugs and asked him what was down in his pants. He replied, "It's just my dick".
9. The police informed the offender that they were going to do a strip-search as they believed he was hiding something in his pants. He did not respond but reached into his pants and removed a medium sized glass jar with a black lid containing cannabis. The cannabis leaf in the jar weighed 23.8 grams.
10. The total weight of the cannabis leaf was 26.4 grams. That included the jar as I understand it. This is the subject of sequence 10, the offence before the Court pursuant to s 166 Criminal Procedure Act 1986.
11. There are images of the glass jar containing the cannabis; a set of scales with cannabis on them for the preliminary weighing is also depicted; there is a second image of that same set of scales.
12. The police had a short conversation with the Fakhouri in which they asked him whether the offender was selling drugs. Police asked if they would find evidence of this on the offender's phone. Fakhouri replied, 'there might be a message on there about trading drugs for $180'.
13. Police asked the offender about the items found on him. He indicated that the resealable silver packet containing cannabis was 1 gram and a tester packet. He denied supplying drugs to anyone. In relation to the blue wallet he said it is not associated with that at all. The offender said he was a personal trainer and worked in retail. He said the cash from the blue wallet was basically his lifesavings.
14. The police continued the search of the offender's car and found a second bong, a fourth mobile phone, and an Extra brand gum packet containing four mobile phone SIM cards. Police asked the offender to open the phone that he currently used. The offender said, "I don't want to". Police told the offender that they were going to seize the phone. He said, "you can seize it, I just honestly don't want to see you to be going through my photos of my girlfriend." Police said they had no intention of looking at his photos. Police returned the phone to the offender to unlock it. He did so and navigated through the application screens. The police saw him attempting to delete the WhatsApp application from the phone. They grabbed the phone back from him; they attempted to pull it out of his hands but he tightened his grip and then pulled it away from the police officer. The policeman maintained his grip on the phone. There was something of a struggle it appears. The offender was restrained and the officer removed the phone from his grasp. He was arrested and taken to Ryde Police Station.
15. The facts then deal with the reckless wounding.
16. I pause to note that there was a DVD included in the Crown bundle which depicted this crime, captured by the mobile phone that was seized by the police at this arrest.
17. At the police station the police looked at the content of the WhatsApp application on the offender's phone and in one of the Chat logs under the Chat log named 'Cuz' the police located the video and audio recording timestamped 18 March 2020 at 11.51pm. The audio-visual recording was two minutes and 32 seconds length. The recording showed a man, Sebastian Lim, the victim, lying on the ground next to the side of the car while the offender and another man unknown at that point stood over, assaulted, and wounded him while he was on the ground.
18. I have watched the recording; it was played in Court and I have taken the opportunity to view it again before preparing this judgment to be delivered extempore. It provides graphic images of forceful threats against the victim and in respect of his father and mother, the demand for money, repeated blows, the use of the knife to reinforce the threat, the filming of the victim against the risk that he might "snitch", the victim repeatedly apologising and begging for the beating to cease, and the threats against his family not to be executed.
19. The offender had retained the knife which was found in his custody when he was arrested from the time when this attack occurred; the accomplice was armed with knuckledusters used to cause a two-centimetre wound to the victim's left cheek. The offender cut the victim's left elbow with the knife causing a three-centimetre laceration. There is a clear image of blood pooling beneath the victim's head and neck and issuing across his face.
20. Those bare words only go some distance to depict the graphic presentation seen on the video in what must have been a terrifying experience suffered by the victim.
21. The facts continue to describe what is to be seen from the start of the recording.
22. Lim had blood on his face and was moving his hands up to his face to protect himself. There was a pool of blood under his neck and he had a laceration in the form of a two-centimetre wound to his right ear. His hands were shaking.
23. The Gucci bag found by the police on 26 March 2020 was worn by the offender; the man unknown at that time identified as Cuz and Cuzzie in the offender's WhatsApp messages had a metal knuckleduster on his right hand.
24. While Lim was on the ground the offender and co‑offender demanded that Lim give the money which Lim owed to them.
25. While Lim was on the ground the offender repeatedly moved the hunting style knife toward Lim's face and body. As I said, this is the knife that was located by the police on 26 March. There is a single image raised from the video recording showing the knife held by the offender in the vicinity of Lim's face; Lim has his hands up to his face, there is blood on his right hand, the dorsal aspect of which is facing toward the camera. There is also blood on the dorsal aspect of his left hand and there is blood on his face.
26. While the offender was moving the knife towards Lim's face and body the offender, the co‑offender and Lim uttered the following words: "CO-OFFENDER: What did you do, you dog? LIM: I fucked up, I lied, I'm sorry. OFFENDER: Yeah, you racked it up didn't you? LIM: No, I didn't, I promise. OFFENDER: Where is the fucking money then? LIM: I'm get it to you by next week, I promise. OFFENDER: Nah, nah, nah, next week, do I look like I fucking have time for next week motherfucker? I swear to god you steal money from me. LIM: When do you want it, two? OFFENDER: When do I want it? Fucking now. LIM: I don't have it now; I'll get it by two."
27. The co-offender then used his right fist knuckleduster and punched the left side of Lim's face causing the two-centimetre wound to his left cheek that began to bleed profusely. The exchange continued: "OFFENDER: Two days, motherfucker. LIM: Please, please. OFFENDER: You want to fuck around two fucking days yeah you want to fuck around, my money's missing, my 9K is missing, you think this is a fucking joke. CO-OFFENDER: Who do you think I am, why do you fuck up? LIM: I'm sorry, I'm sorry, I'm sorry. OFFENDER: You picked the wrong fuckin cunts, yeah, come here with 80 fuckers and fuckin bash you, you fucking little shit. Where's the fuck? CO-OFFENDER: Listen, Cuz, are you going to pay or not? Keep it between me and you, if there's any snitching you're dead and your fuckin mum's dead as well, you dog, all right? LIM: I'm sorry. CO-OFFENDER: Say sorry. LIM: I'm sorry. CO-OFFENDER: Are you going to snitch? LIM: No, I'm not."
28. The offender put the mobile phone towards Lim showing him the screen and said: "OFFENDER: Is this your family, is this your fuckin family? Yeah. I know them, they know me. CO-OFFENDER: Don't bring this up, yeah? OFFENDER: You want to say look keep this clean. LIM: Yeah. CO-OFFENDER: This is your last chance. OFFENDER: This is your last warning, the next one is a fucking bullet to the house, I swear to fucking god, I swear on my mother's life I'll fucking kill you. I swear 9K, you want to fuck around with, you think it's a fucking joke? LIM: I'm sorry. OFFENDER: You told me you paid 600, that's a fucking joke, you fucking piece of shit. You - smash head for 600, you're lucky I don't fucking stab you, you fucking little shit, you're a fucking dog. CO-OFFENDER: Are you going to do it or not? LIM: I will, I will, my mother's precious, please, please don't, please. OFFENDER: I got this, I got that, you want me to come here and waste time, this is my final warning. CO-OFFENDER: Shake on it. LIM: Phone. OFFENDER: Bye Yalla. CO-OFFENDER: Snitch, your mum's dead and your dad and your whole family, you fucking dog, you fucking dog. You're lucky I don't kill this cunt right now. LIM: I'm really sorry. OFFENDER: It's my money, 48 hours, I swear to motherfucking god, I swear, I swear, I swear on my mother's life. CO-OFFENDER: Okay, let's go, let's go. OFFENDER: I'm going to fucking kill this cunt, bro. CO-OFFENDER: Drive home, drive home and I'm expecting my money soon."
29. I note in that exchange the role implicit in the utterances by the offender and his use of the knife. Throughout it is the offender who asserts to be the person to whom the money is owed. He is the more aggressive, although the difference between him and the co-offender in their behaviour towards the victim is marginal. The offender, during evidence, asserted that he was playing a role upon the instructions given to him by the co-offender.
30. While moving the knife toward Lim the offender cut his left arm in the elbow causing a three-centimetre wound.
31. There is a section in the statement of facts showing a wound with sutures on the victim's elbow and another image of the victim's face with a laceration to the left cheek, just to the front of the left ear.
32. When the police were reviewing the content of the phone and looking at the WhatsApp messages between the offender and the person there named Cuzzie dated to the evening of 18 March 2020 around 9 to 10pm, the police saw messages about buying knives and knuckledusters.
33. At 9.30pm on 18 March 2020 while communicating via message about the offender buying weapons for them Cuzzie wrote, "But I'll defs grab something cause I wana put it on that Lim family". The offender organised the purchase of the weapons for him and Cuzzie at 10.24pm. At 2.11am on 19 March 2020 Cuzzie messaged the offender "Love you Cuzzie, it's the funniest shit watching that vid cooked".
34. In the early hours of 27 March 2020 the offender participated in an electronically recorded interview with the police. The offender was asked what the victim had done to deserve what happened in the video, the offender indicated, "To be honest it has nothing to do with me, so I wouldn't know...I know he stole money for someone...I think he stole the money off some guy I know...no, if I remember correctly, he stole off his Asian mate".
35. The offender said he did not know the "Asian mate's" name. The offender indicated it was about $9,000, he initially denied knowing who was in the video but later admitted to being present during the assault of the victim, he said he was holding the knife although he denied using the knife maliciously. He said he was acting to support a good friend called Abdou who was trying to get his money from Lim.
36. Around 3am on Friday 27 March 2020 the police executed a search warrant at the offender's home at North Ryde; this home occupied by his family. During the search the police found 16 vials of human growth steroids, that is sequence 14, a related offence, and $8,750 in cash in a Gucci bag, that is the subject of sequence 5 on the Form 1, to be taken into account with the supply cocaine. Police also found five mobile phones and a set of black digital scales.
37. On the evening of 19 March 2020 Lim attended Bankstown Hospital for treatment. The hospital's medical records show that he sustained two lacerations to the face, a two-centimetre laceration to his right ear and a two-centimetre laceration to his left cheek. He also had some bruising around his right eye, he had a third laceration on his left elbow measuring three centimetres, he received 5 stitches to the elbow wound. The facial wounds were closed with medical glue.
38. On 7 April 2020 the police attended the victim's home and when speaking to Lim that saw the healing wound on his left cheekbone and the healing wound on his left elbow. The victim declined to provide a statement, he was visibly shaken and stuttered as he spoke.
39. The facts then deal with the supply of cocaine, sequence 16, and the supply of methylenedioxymethylamphetamine. The description is presented on the basis that the offender was a participant in the joint criminal enterprise in which these drugs were supplied.
40. When the police reviewed the chat logs within the WhatsApp application on the phone taken from the offender in the park, they found evidence of him having participated in the supply of prohibited drugs using a drug delivery service. The chat logs cover the period 7 March 2020 to 27 March 2020; there were some 500 pages of these when they were printed out by the police.
41. The chat logs indicate that the man known as Cuzzie and the offender together with other people known as runners, including people known as Alex Gypsy, Chablo known as Pablo, and Margaret and Flow Stick, arranged for prohibited drugs to be delivered to people, buyers in different suburbs across Sydney. In the chat logs arrangements were made for the prohibited drugs to be supplied to people in suburbs such as Asquith, Beecroft, and Avalon in the north, to Brighton-Le-Sands and Panania in the south, Bondi in the east, and Penrith and Richmond in the west. The offender and the runners exchanged messages via the secured internet app WhatsApp. The runners were directed where to go, how many bags or caps were to be supplied or the quantity of the drugs, and the amount of money which was to be received or exchanged for the drugs.
42. Messages were sent to the runners to provide buyers with information about the delivery time. Messages were sent to runners to authorise them to use toll roads to increase the speed of the drug delivery time. Messages were sent to the runners and buyers describing where they were and what they looked like to assist them to recognise each other.
43. WhatsApp chatlog messages recorded on the phone indicated that the participants in the enterprise were involved in the supply of cocaine and MDMA on each day from 9 March 2020 through to 26 March 2020. The supplies to buyers range from a single bag of cocaine or capsule MDMA, up to 15 bags of cocaine and 30 capsules of MDMA. On each of the days the chatlogs indicate that in the order of one to 17 people were supplied with drugs by the runners; the cocaine in each bag was typically half a gram or one gram; the cocaine supplied during this period was in the order of 100 grams; the MDMA supplied in this period was in the order of 25 grams.
44. During the period messages were sent to the runners to make sure they had enough stock to sell. Through each week the runners would report how much they had sold and how much money they had received. Code words were used to refer to the prohibited drugs; cocaine was referred to by names including "snow" or by reference to the "bag" and MDMA was referred to by names including "caps", "Emma", "Molly" and "M".
45. Examples of the interactions with the runners included those which are set forth in the agreed statement of facts. For example page 10 of 17 in the facts is the date 9 March 2020. The first message, "if you can ask how many Pablo has as well cuz, cheers". The person communicating with this phone, "okay will do man and Pablo's got eight snow, I got 56 snow ATM, I'll let you know how much Emma once I finish packing it", and then the person holding the phone, "I'll right, easy, thanks", then the person communicating with the phone or to the phone, "gonna need more capsules man, I'm running out BTW", which I take to mean "by the way".
46. The messages sent by runner known as Alex Gypsy are those that appear in white boxes to which I have referred as the person communicating to the phone, and the messages from the phone seized by the police are to the right in green boxes as I indicated. These examples continue through the facts. It is not necessary for me to go through and repeat what is there available to be read by those who might be called upon to look at this document, but I have read the representations in these images that provide clear evidence of a sophisticated enterprise in which these drugs were being marketed out into the community.
47. On 15 March 2020 Alex Gypsy provided an account that he supplies and then at page 13 of the statement of facts there are screen shots showing the entries that are so described. In one of those, just by way of an example, the list of information includes the following 70 top up, five from last time, "75 total snow". … one for six 200, "work it off". … 0.54 grams of M given to Tall Mate. … six 900 Brighten-Le-Sands no pay. … one for 300 Crows Nest, no pay. Two for 450 Crows Nest, no pay. Two for 450 Mosman, no pay. Six for 800 Punchbowl, 50 pay. One for 300 Woolwich, 50 pay. One cap 25 to Gladesville, five pay.
48. There are other entries in the adjoining screen shoots taken from the phone providing further evidence. It continues on page 14 of the facts with a record of the runner Alex Gypsy providing further accounts of the drugs he supplied and drugs he had given to other runners, namely Flow and Pablo.
49. The facts then focus upon the offender's role.
50. During the ERISP police asked the offender how long he had had this phone. The offender indicated "honestly, a week and a half, two weeks max, maybe a week and a half". The offender's answer was consistent with material which the police located on the phone which linked the offender to the phone. Chatlogs on the phone indicated the offender had used the phone to communicate with runners in relation to supply prohibited drugs on 13 to 14, 17 to 20 and 24 to 26 March 2020.
51. An example of an interaction the offender had occurred on 14 March 2020; during this interaction the offender had the following exchange with Alex Gypsy including arrangements for the runner to supply eight bags of cocaine for $1,500. The messages to the right on the green box are from the offender and to the left in the white boxes are from Alex Gypsy beginning at the top with the offender, "Hey bro, can you do a job". Gypsy, "Where's UT at man". New message from Gypsy, "IT". The offender, "Penrith". Gypsy, "Sure, send it through". The offender, "What's ETA". Gypsy, "45 minutes to 50 minutes". Offender, "Confirming". Gypsy, "Okay, easy man, what's the go with the guy in Penrith, man". The offender, "He's being a delay but he might be still on". Gypsy, "On, let me know once confirmed". The offender, "Two for 450 Penrith Panthers". Gypsy, "Okay, NW 35 minutes away". The offender, "Easy, got a few lying up already". Gypsy, "Okay, mad". The offender, "he wants three now". Gypsy, "Okay, 650?". The offender, "Yea BR8". New message from the offender, "How long". Gypsy, "23". The offender, "10 Memorial Drive is the addy". Gypsy, "Easy". The offender, "Got one in the city afterward". New line for the offender, "Eight for 1.5k". Gypsy, "10". Gypsy, "Let them know I'm here". Gypsy, "Okay, easy man". Offender, "I told him". The offender, "Should recognise him". The offender, "He's waiting". Gypsy, "All done". Gypsy, "Send the addy for the next one". The offender, "383 Kent Street, D Harbour, eight for 1.5". Gypsy, "Okay, easy". Gypsy, "One hour, 10 minutes". The offender, "What time is arrival". The offender, "Cause his boat will leave at 6.45". Gypsy, "6.45". The offender, "Try to be ASAP, but I'll tell him to wait 6.45 hopefully cheers". The offender, "I told him 6.30, he will be ready, put blinkers on". Gypsy, "Okay". Offender, "Got a straight - got a job straight after at Eastwood as well". Gypsy, "Easy". Gypsy, "I've only got 13 on and 100 caps on BTW".
52. This provides a glimpse of the conduct of the offender in this enterprise.
53. On 17 March 2020 the offender communicated with Cuzzie and discussed Alex Gypsy. They discussed Gypsy supplying drugs once that day and that they were missing drug dealers because of the runners. They discussed the need to get new runners.
54. Another example of the WhatsApp chat log communications which the offender had with Alex Gypsy occurred on 24 to 25 March 2020; this is at pp 201 through to 219 of the attachment to the agreed statement of facts.
55. I do not need to proceed through and repeat what is there to be read but on any view of this material this offender was an active participant in this enterprise, in which he has said he was a participant because of the nature of the relationship that he had formed with the man identified as Cuzzie or Cuz.
56. Before I come to the evidence given by the offender I will note that he was born in 1999, and this year will be 23 years of age. He has no prior antecedent record.

THE OFFENDER

1. The offender gave evidence when the matter began before me on 19 May 2022, and he was followed into the witness box by his father.
2. I note that his mother is present in the court complex. She was outside in some distress, unable to compose herself sufficiently to be in court. His mother and father are people of good character and have standing and respect in their community. My sympathy extends to them; they experience significant pain I accept from the fact that their son is in the dock facing sentence for these serious criminal offences.
3. The argument advanced on his behalf is that he was the subject of nonexculpatory duress at the hands of his co-offender, or at the insistence of his co-offender.
4. The view I have of the material that has been presented to me, and the assessment I have made of the presentation on the DVD player and what is to be found on the material included in the agreed statement of facts is that there can be little doubt that the offender was operating under the influence of this co-offender. There are images of the co-offender in material to which I am to come, showing the extent of his physical presence. One would accept that he has significant capacity to cause harm reflected in what is to be seen of him in the recording.
5. Similar comments could be made of course of the presentation of the offender in his activity. But against what is known of the offender from others who have provided material on his behalf, including his father who gave evidence, I come to the view and find that he was in a subordinate role to the co-offender, and that he was engaged under the influence of the co-offender to some extent. Whether he was under duress though, is difficult to determine.
6. He was still armed with the knife when the police arrested him on 26 March 2020; the knife used in the attack upon the victim displayed so graphically in the recording.
7. The exchanges between the co-offender and this offender that were discovered, and to which I have referred, indicate an ongoing working relationship in which they were engaged upon the supply of drugs. I accept that his co-offender was the principal and that the offender's participation was the product of his misuse of drugs and indebtedness that it incurred to this person so that he felt some obligation to assist in their activities and comply with requirements he might have had. But even when he was arrested by the police when he had ample opportunity, he did not expose the information that he gave to me in Court. He was at that point in a position to get help if he was under the influence of duress to the extent that he would urge the Court to find. He chose not to do so.
8. As the proceedings unfolded he made the decision to advance the proposition as is reflected in the evidence he gave.
9. His evidence appears at p 9 on the transcript of 19 May 2022. He describes his current working arrangements providing financial consultation. He spoke of his attendance upon Dr Nielssen, psychiatrist, and asserted that he told the doctor the truth. He spoke of his Bachelor of Economics course began in 2018 but which he cancelled during the period of the arrest. There was some confusion about that but he ultimately asserted that it was in the start of 2021. It was in the second semester that he began. He added that he completed both semesters last year in 2021, and is now, at the point he gave evidence, in his third semester at Macquarie University. He said that he dropped out towards the end of 2019. He ended up failing, not being able to complete classes, and that led to his removal; he resumed studies at Macquarie University and was continuing there at the time he gave his evidence.
10. He asserted that he was addicted to drugs in 2019, and into early 2020. He spoke of that to Dr Nielssen. He said at p 12, at line 5, A. I had accrued a debt to my drug supplier at the time, I owed him a large amount of money to Mr …... Q. And he was your drug supplier, was he? A. Yes. Q. When you say you owed him a large amount of money, what was that for? A. I think it was for the drugs that I'd purchased and used for myself from him. Q. When you say you think, is that what it was for, or you think it might be for some other reason? A. No, that was for the reason.
11. He is attributed with the proposition that the incurred obligations, and it was "hard to hop off". He explained that at p 12, line 24: "By obligations I meant doing anything that was required of me to the person that I was indebted to, this included staying outside individuals to keep - individual's house to keep watch, getting him coffee, food, taking him anywhere, buying things for him from the shops, including plastic resealable bags, things along those lines".
12. He was asked why he felt obligated in that respect and at line 31 p 12 he said: "I felt that I was required to do so because whilst I had a monetary debt that monetary debt was generally included these extracurricular activities as a way of paying that debt, even though he might not have accepted that, he made me - he would ask me to do these things and if I was to refuse doing them he would instantly bring up that debt, and as a result I would do these things in the hopes of reducing that debt".
13. He was referred to the representation attributed to him by Dr Nielssen that this person threatened him physically and this was explained at p 12, line 48: "At the time I thought that I didn't have my own free will to impose what he would say, or any demands that were made at the time, including any obligation such as doing any tasks that are required".
14. He continued at p 13, line 5: "The environment I was in was relatively violent and so if I was to refuse something it would generally result in a violent situation, and it would generally be me being hurt. This occurred specifically at one time where I was hurt quite significantly with a BBQ fork through my hand".
15. He spoke of this person having stabbed his hand using a BBQ fork. He did not go to the police. He said at p 13, line 21: "At the time I felt that I was trapped and I wasn't able to ask for help without making my situation worse at the time. Looking back I understand that's not really the case but at the time I felt I was on a train that I couldn't off and I was heavily interloped with Mr Persious".
16. He was asked about the facts and the nine days he was using his mobile phone to connect with runners. He said, line 44, p 13: "I felt that was part of my obligations and I felt that was the only way out of paying my debt at the time. I looked at that as a solution, I did not realise that was the great mistake I was making".
17. I sought clarification of that. At p 14 I asked: "Q. You didn't realise that it was a mistake that you were making doing this? A. Going further and to using the phone and doing what was required".
18. He continued at p 14 to acknowledge that he would perform those tasks which included sending messages or collecting items such as bags or plastic resealable bags and they were supposed to bring his drug debt down and eventually stop it.
19. When asked questions that might have elicited some clarification he said at p 14, line 16: "There was never a single monetary amount, it was always constantly being amended and changed based on Mr Flow Stick's own opinion, so I was not able to say, "oh, is it this much left?" or "how much would I have to return to escape?", it was no - there was option at that end".
20. He said he asked a few times, especially towards the beginning, how much he would have to pay because he did not want to do certain tasks. It was at that point that he started significantly increasing the debt to points where it would not really be feasible to pay it off in any normal capacity, using his words.
21. The representation there carries the implication that it was not the other person increasing the debt but upon that description it must be the increased debt because of the offender's resort to drugs that were said to be supplied by this person.
22. He said he was worried about what this man would do in relation to harming him. He was worried about him having a great deal of influence and power still and he might not take lightly him exposing his knowledge. There was one occasion when he was threatened in front of his house shortly after he was arrested. He was with his father. He threatened to shoot and kill all his family if he was to talk and communicate with the police. He demanded to see Court documents including the facts and the charges that were submitted.
23. This man continually came to a house thereafter. At one point he threatened his father. His father started recording him this as it was happening; that was the last time that he saw him. Before leaving he gestured with his fingers, making a gun sign.
24. He then dealt with the circumstances where he lost connection with his family, he was homeless living in the car. This was toward the start of 2020 or at the end of 2019. He was having extended arguments with his family and his father asked him to leave the house.
25. He said that the recording was made by the other person and sent to him as a text. There is a sequence of questions with reference to what he said to Dr Nielssen regarding the recording of the assault having been sent to him as a text. His family continued thereafter to be a strong support system for him. He has not taken illicit drugs since March 2020 before his arrest. He dealt with his employment history.
26. He spoke of how he came to be involved in the events with the person with whom he attacked Mr Lim. He said at p 17 he was partying quite a lot, still abusing drugs. He was trying to source drugs for himself for his personal consumption that led him to being in a house where the other person was; that is how they met and their relationship evolved from there.
27. He had no recollection of knowing Mr Lim before the assault. He had never spoken to him directly before that. He never owed him money. He was asked why he made the representations to Lim that he did in the recording of the attack. He said that he was speaking on behalf of the other man. He was trying to intimidate Mr Lim but the money was owed to the other man. He denied any earlier conversation with Mr Lim.
28. I have some difficulty accepting the veracity of that I must say, bearing in mind that Mr Lim is the person to whom these misrepresentations, if the offender is to be believed, were being made.
29. He explained at p 20 how he came to be involved in the assault. He was picked up by the other man. They were driven to a nearby park. The other man told him he wanted to put it to the Lim family. He only did this because he wanted to appease the other man and be in his good graces to alleviate how bad his situation was happening.
30. He was not promised anything for his participation in this. He said at p 21, line 26: Abdul at the time would ask me to do tasks such as - they could vary from many things, including the collection of some weaponry for him, which was a knife, I took that as a way to also fulfill the tasks--
31. At p 21, line 43, he attributed remarks to the other man: Q. No, no. I said, "What did he say? What were the words that he used?" That's not paraphrasing, that's telling me precisely what he said? A. He said, "Mate, I'm glad you came tonight. You did a good job. That Lim" expletive, expletive, "He deserved that. He was one of them - he stole the money, and you did good tonight. So I'm going to take off the debt, you don't have to work this next week" next, I think was "next day. And don't worry about that last cocaine bag you bought off me, you don't have to pay for it".
32. I have gone through evidence given by the offender including in response to cross-examination. He was asked a question about how he became involved with the enterprise, how he was endeavouring to pay off a debt, how he involved himself in the drug supply. At p 24 he asked what this other man asked him to do. At line 37 he said: "He broke it down in a way where he said, 'look, I can tell you, you're pretty hard on the coke right now, and I can tell you that you're struggling doing all these different things'. He said, 'Look, if you just - look, if you just'- he said, 'You can still keep doing all those things, you won't even have to work as hard, as much, at your other job, but if you can start doing some minor things for me, such as working around my house, and helping me manage my other employees'", which he was talking in relation to his drug employees. "I could pay off this debt, and it will be a lot easier than doing it the hard way, which would mean asking my parents, or getting money from any other available option."
33. At p 29 he said, that once he became sober he fully understood the situation and the damage and the pain that he would cause by his misconduct. He spoke of the guilt that he was carrying, the strain that he had been dealing with, the toxic environment that he had created impacting upon the individuals around him, and that as a result he viewed himself as one of the worst of people. He acknowledged that Lim was an innocent in all of this. He referred to a psychiatrist upon whom he is attending presently, Jane Turner, and how she has helped him and then it went into an area with which I will deal in the closed court.
34. The cross-examination also had answers to refining information that he had provided with reference to the exchange that was recorded on the telephone and transcribed for the facts. This pointed out the significant role that he revealed in what he said to Mr Lim and of course the attack upon him.
35. His father gave evidence from p 40. He spoke of the offender in positive terms as he grew up through to the HSC; things went awry when in March 2020 he found out that his son had been arrested, but before then he had faced the other man in the front of his house usually waiting in a car. He had not had any conversations with this man before his son's arrest. There was evidence given at p 41 regarding the other man's attendance at their home. He told him not to come to the house anymore. He wanted to find out, that is the other man wanted to find out what had happened at the police station and the offender's father told him that is not something that they would be sharing. He did not allow that person into the house and he asked him to leave. A few days later he arrived with another person; the other person said that he was a lawyer, and he behaved in an intimidating fashion, his father felt threatened, he asked him to leave. They were persistent but eventually they left.
36. He then described in some greater detail what happened when they came to the house, the impact upon him and his family from them being there and the fear that he felt. He recorded images on his phone so that he would have something to give to the police if it became necessary. When he stopped recording the other person threatened to kill them all, the whole family, and he was very angry.
37. The confrontation paints a picture of the other man as someone about whom the offender no doubt had concern, and under whose influence he engaged upon this criminal misconduct, but I do not overlook that he had more than enough opportunity to extricate himself from what was occurring, even at the point when he was arrested, in circumstances where his criminal misconduct was patent. He did not immediately seek the help of the police when he might have.
38. It is important to note though that but for this period in his life the offender had been a person of good character. He had all the promise of someone who would succeed in a professional career but fell under the spell of illicit drugs. He cannot blame difficult former years with poor upbringing to explain why he chose the course that he did. His decision in my assessment of the matter was a lifestyle choice but he reached the point of being in far too deeply and now faces the consequence of a gaol sentence.
39. A sentence assessment report was prepared; this speaks of him in positive terms. He spoke of positive family relations, his feeling of guilt, the stress and fear he has caused his family. His father confirmed details and spoke of the stress and shock to his wife when learning of their son's arrest and addiction, and he added that his son was completely different now to what he was two years ago. He said that he once more had the son they had in the past; he just came back home. This is a fair summary of the effect of the evidence given on that topic by his father. He spoke of the progress his son made pursuing his professional life.
40. The offender attributed his offending behaviour to his drug addiction at the time, his paranoia and fear of his drug dealer who he said had complete control over him. I do not accept that phrase applies. He appears, it is said, that he is actively attempting to make amends to his family members. I accept that he is.
41. His drug use began at the age of 17 following cannabis from the age of 14. His drug of choice was cocaine and MDMA. At the time of the offence he was using cocaine, cannabis, Xanax and sleeping medication. Since May 2020 he has been engaged with a drug and alcohol counsellor and has achieved abstinence whilst with that counsellor. He said he did not regard himself as aggressive or violent generally but his values were compromised by his drug addiction and his associates. He exhibited considerable insight into his offending behaviour, was motivated to maintaining intervention, he is a low risk of reoffending.
42. Dr Nielssen, as I said, provided reports, one on 11 July 2021. He was not required for cross-examination and considering the offender's evidence confirming that he was truthful with the doctor ultimately the opinion formed by Dr Nielssen must be attributed appropriate weight. This describes his history of deterioration into drug use. He attributed to the offender the request to have him assist recover the $9,000 debt from Mr Lim, whom he said he did not know. He spoke of the drugs he was on at the time which included testosterone and an anabolic steroid Trenbolone. His psychiatric history is discussed. There is nothing in his background to explain why he might have deteriorated into the pattern that he did. His first contact with any mental health service was a referral to a Dr Morgan in 2018. He thinks he was diagnosed with schizophrenia with which he does not agree. He declined an opportunity to be admitted to hospital.
43. He reported referrals to psychologists on several occasions prior to his arrest but did not take them up. He has been to see Jane Turner, psychologist on some thirty occasions and through her assistance has been able to cease all drugs and slowly recover from the depression he was experiencing at the time. He reported hallucinations and persecutory beliefs associated with cannabis which has abated and he speaks of fear of his former associates. His physical health has improved since he has stopped using drugs. He suffered some blows to the head in assaults resulting in more than a transient loss of consciousness or an admission to hospital for observation. He had been taken to hospital several times for polydrug overdoses including gamma hydroxybutyrate (GHB) and alcohol. His history of substance abuse is discussed, his education is discussed. The doctor reviewed documents and offered the diagnosis of substance use disorder and earlier substance related mood disorder in remission. He noted Dr Morgan's provisional diagnosis of depression and a further possible diagnosis of a form of bipolar disorder, psychosis, and ADHD, but he did not elicit features consistent with any of the diagnoses. His main problem was substance use now resolved.
44. Another report on 15 March 2022 included reference to the pleas of guilty entered to the charges. There was a further discussion of his involvement in the offences stemming from the emergence of a substance use disorder that began soon after he finished High School where he did well. Performance at University declined, failing the second term of his degree and that was accompanied by his increasing drug use. The report is largely a replication of what was earlier provided with the same diagnoses and the same discussion.
45. Dr Sue Morgan, consultant general and forensic psychiatrist, wrote on 12 November 2018 to Dr Sangita Shrestha of the ongoing care provided to the offender then eighteen years of age living with his mother and father and twin brothers. This refers to the successful family, father in finance, mother an engineer. There is reference to no formal psychiatric background, no past suicide attempts, background is polysubstance abuse and partial remission.
46. He was referred to Dr Morgan for anxiety and poor sleep. She records depressive symptoms and always feeling anxious. She thought there were some symptoms suggestive of bipolar affective disorder but he did not demonstrate any flight of ideas. He was extremely pressured in speech and psychomotor agitation and was mildly grandiose. Her opinion is that he had several issues, primarily the substance use problem that needed managing. His primary problem at that point was insomnia for which he was medicated. Other investigations were suggested. He was offered admission to Northside but he declined.
47. Macquarie Medical Centre provided a document on 16 January 2020 providing a history of his medication and this included the referral to Dr Morgan. Jane Turner provided a report on 18 May 2022. This is from the Sydney Drug Education and Counselling Centre where he attended. He has been engaged since 14 May 2020. He has had 49 counselling sessions. He has engaged extremely well and has committed to continuing.
48. I have a character reference provided by the offender's girlfriend who has known him since March 2021. He told her of the incident. She was taken aback by the offence. She speaks of him in the current circumstances in the most positive terms.

CONSIDERATION

1. For the reasons I have given, I find that the offending implicit in the supply charges is below mid-range objective seriousness. The offending in the charge of reckless wounding is above mid-range. It does not follow that upon some arithmetical formula one determines a sentence of imprisonment and a non-parole period for the standard non-parole period offence according to the finding of objective seriousness; ultimately the decision turns upon the synthesis of all material, objective and subjective, including that this offender has no antecedent criminal history. He lost his way and through a lifestyle choice became involved in criminal misconduct with others and under the influence of the principal in the enterprise embarked upon his crimes until the interdiction of the police which I have summarised from the facts.
2. Written submissions were provided on behalf of the offender and these were addressed orally in court.
3. About the reckless wounding it is accepted that the use of the weapon by each of the participants was aggravating. The duration of the attack was relatively short. But there can be no view other than the victim would have experienced substantial fear from this attack in addition to the wounds that were inflicted upon him. The fact that they were in company and that the incident involved wounding are matters that are elements of the offence and cannot be taken into account in aggravation.
4. The Form 1 offence to be taken into account in the wounding charges, the possession of the knife in a public place, that relates back to when he was found in possession of the knife by the police at Gannan Park.
5. The other two offences to be taken into account, the possession of the money proceeds of crime charges, were to be brough to account as the Form 1 offences.
6. In relation to the s 166 offences, I do not propose to impose a sentence for those. In respect of each of those I convict the offender but considering the sentence I am about to impose upon the other offences, pursuant to s 10A Crimes (Sentencing Procedure) Act 1999 I will not impose any penalty; that is in respect of the possession of the prescribed restricted substance and the possession of cannabis.
7. The submissions on behalf of the offender include his education and achievements, his deterioration from the end of 2018 including reference to his GP and then Dr Morgan, all coincidental with his misuse of drugs, beginning with cannabis and ultimately ending up with the MDMA and cocaine which burdened him at the point of his apprehension.
8. He has made progress towards rehabilitation as must be accepted and it must follow that there are good prospects for rehabilitation now that that he has the ongoing support of his family. He was excluded from his family when he was at his lowest ebb, which might well have contributed to the circumstances that ultimately led to his serious criminal misconduct. I do not suggest any blame should be attributed to his father for making that decision when he has not only his son to be concerned about in the home he was providing.
9. Dr Nielssen's diagnoses are both in remission as a result of treatment and abstinence.
10. I am reminded of his age, support from his family, his willingness to seek assistance to rehabilitate and that he is drug free. He has been on bail for the incidents for some time. I accept that he is unlikely to re-offend. It is regrettable but unavoidable that the custodial environment will inevitably have some detrimental effect upon his efforts towards rehabilitation. He will need to dig, and dig deep within himself, to find the strength to cope with what is about to befall him.
11. I have referred to the non‑exculpatory duress: relevant to that is s 21A(3)(d) Crimes (Sentencing Procedure) Act 1999 and the decision of Tiknius v R (2011) 221 A Crim R 365.
12. I have been invited to attribute some benefit to the offender by reason of the delays since the detection by authorities and the resolution of the matter. I have also brought to account what is now recognised as the difficulty in custody because of the COVID-19 epidemic. I accept that there are special circumstances requiring a substantial decrease in the custodial component of the sentence from the statutory ratio in s 44 of the Act. I shall leave those written submissions on file.
13. The written submissions that have been provided by the Crown accept the plea of guilty and the discount to be attached in respect of that and for other reasons.
14. The Crown reminds me of the injuries suffered by the victim in the attack, the degree of violence involved, the use of a weapon by each of the offenders including the fearsome-looking knife that was wielded by the offender. This was not an unplanned event. The violence was intended. It was to reinforce a drug debt and the information included conversation between the offender and his co-offender discussing being armed when they confronted their victim later that night. The recording reveals the extent to which the offender participated in this event and the use of this type of behaviour to enforce an unpaid debt is, as the Crown puts, a matter of significant concern requiring appropriate punishment enlivening both general and specific deterrence considerations.
15. The purposes of sentencing are articulated in s 3A Crimes (Sentencing Procedure) Act 1999. They are all engaged in this case. I am of the view that the offender ought to be commended for the progress he has made and he I hope will continue along the path, but the misconduct requires adequate punishment, both the conduct underpinning the supply charges, and the reckless wounding charge. General deterrence has its role to play to discourage others from committing similar offences. I accept the need to protect the community from the offender is ameliorated in this case. I accept that his rehabilitation is well on the way. I accept that he has accepted responsibility for his actions and that he is now accountable for what he has done, but the conduct must be denounced and there must be a recognition of the harm suffered by the victim and the community generally. These points articulated in that provision reflect the statements of principle that are to be found in the various authorities dealing with sentencing proceedings.
16. I have taken into account the additional offences. I will certify the Form 1 to confirm that I have done so. There are two such documents and I will certify each of them.

THE SENTENCES

1. The offender is convicted of the offence of reckless wounding.
2. Applying the discount of 50% that I earlier announced I have specified as an indicative sentence appropriate to the facts and circumstances before me and bringing into account that discount a sentence with a non-parole period of 1 year 6 months and a head sentence of 3 years.
3. For the offence of supply prohibited drug and taking into account the offences on the Form 1 and applying a discount of 50% upon the structure earlier announced I specify a sentence of imprisonment of 3 years.
4. For the offence of supply prohibited drug in respect of the MDMA which appears without a Form 1 I apply a discount of 50%. I specify a sentence of imprisonment of 2 years and 6 months.
5. I specify the non-parole period for the reckless wounding charge because that is the standard non-parole period offence and I am required to do so.
6. Pursuant to s 53A I shall specify an aggregate sentence to be one of 3 years and 6 months as a head sentence. I specify a non-parole period of 2 years commencing on 31 July 2022, expiring on 30 July 2024 with the head sentence of 3 years and 6 months expiring on 30 January 2026.
7. The finding of special circumstances is made upon the basis that the offender is a young man, this is the first time he will be in custody, his period in custody will be more onerous by reason of matters I have earlier discussed, his prospects of rehabilitation are strong, and the longer period on parole will give him the opportunity to build upon the progress already made.
8. In respect of the offences before me pursuant to s 166 Criminal Procedure Act 1986 sequence 10 possess cannabis and sequence 14 possessing the human growth hormone, in each of those the offender is convicted but pursuant to s 10A of the Crimes (Sentencing Procedure) Act (1999) I impose no penalty.
9. I make orders in the following terms. Pursuant to s 18(3) Confiscation of the Proceeds of Crime Act (1989) that cash in the sum of $780 and cash in the sum of $8,750 found respectively within the wallets of the offender and in premises at North Ryde on 26 and 27 March 2020 be forfeited to the State. Pursuant to s 18(3) the value of that property is $9,530 and pursuant to s 19(3)(a) the property may be disposed of forthwith.
10. The exhibits to remain on file.

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: 10 October 2022