R v Knight

Explanation for offending - drug addiction

1. When the offender was asked by the Kempsey Community Corrections Officer to explain his offending, he indicated that he had been asked to commit the offending by Ufi and he willingly agreed. He said he had not considered the consequences of involving himself. He did, however, consider that his decision-making may have been 'clouded' during the period of the offending.
2. The offender elaborated that he has a history of poly-substance abuse, of both ice and cannabis: he had used cannabis for 20 years and ice for the last 6 years. He said that at the time of the offending, he had been using two points of ice each day. Further, he voluntarily disclosed that he had been using non-prescribed buprenorphine whilst being in custody.
3. No explanation was ventured as to why at this point, or how, he ventured into drug-taking in the first place. This however, is addressed in a report of Dr Sidhu, a psychologist, which I will address at greater length later in these remarks.
4. It suffices, for present purposes, to note that he told Dr Sidhu that his only thought, when agreeing to become involved, was that he needed drugs.

Bugmy principles

1. The offender's background is set out at greater length in the section of these remarks devoted to his subjective case. Most of that background is expounded in the psychologist's report of Dr Sidhu.
2. Distilled to its essence, Dr Sidhu generally observed that from about the age of 13, the offender had turned to an antisocial peer group and took to smoking cannabis and drinking alcohol as a means of alleviating stressors from the home environment, including his mother's drug use and his father's periods of incarceration. Effectively, he did not receive the parental supervision which he needed. This not only impacted on his progress of his secondary school education but also, ultimately, in his employment. It impinged upon his capacity to make reasoned decisions and control his impulsive thinking.
3. When later, he suffered the loss of loved ones, he was unable to cope with distress. His drug use escalated. He has been unable to process the death of his mother in March 2020. Dr Sidhu believed that his offending can be seen to be connected to this escalation in his drug use.

OBJECTIVE GRAVITY OF THE OFFENDING

1. Crimes of conspiracy are not necessarily to be treated as being any less serious, and meriting less severe punishment, than a completed offence: R v Haidar [2004] NSWCCA 350 at [31]-[34]. Prosecutions for conspiracy and for a substantive offence need not result in a duplication of penalty: The Queen v Hoar (1981) 148 CLR 32 at 38.
2. The offender admits that he was party to an agreement with Ufi. When sentencing offenders who were part of a joint criminal enterprise, as a starting point, all the parties to that enterprise are to be treated as participants in the commission of the same crime: R v Sukkar [2011] NSWCCA 140 at [36]. However, the criminality of each participant is not necessarily treated in the same way. This means that an important focus is on the conduct - the overt acts (or omissions) - of the offender. In this respect, proof of the commission of an overt act by a party to the agreement conditions guilt and is placed on the prosecution to the criminal standard: The Queen v LK (2010) 241 CLR 177 at [141].
3. However, whilst the particular conduct of the offender is significant, the role of the offender within the enterprise might be even more significant: Tyler v R (2007) 173 A Crim R 438 at [82]-[85]. Hence in the cases dealing with conspiracy for the importation of narcotics, those at the 'managerial' level of the enterprise (or above) are regarded as more culpable than the hapless courier who is caught in possession. Generally, an instigator is regarded as being more culpable than an offender who is not an instigator: R v Pearce [2020] NSWCCA 61 at [2]. If it is not possible to differentiate the roles of participants in a criminal enterprise, it is appropriate to sentence the offender on the basis that s/he bears responsibility for all the acts in the course of carrying out the enterprise: Beale v R [2015] NSWCCA 120 at [57]-[60].
4. As to the substantive offence, the difference in elements as between the offences in ss 111 and 112 of the Crimes Act is that the latter offence includes the element of "breaking" into the premises. This explains why the offence under s 112 carries a higher maximum penalty.
5. The Crown submitted that the offender was quite proactive in the conspiracy. The intercepted communications disclosed that:

• he contacted third parties to arrange for the transport to the targeted home;
• he made suggestions as to the timing of the entry into the targeted home;
• he invited Ufi to attend his home to discuss the planning;
• he informed Ufi that he had spoken to others ('Wayno' and 'Matty') to participate in the enterprise and the role they might play (as 'door knocker').

1. The Crown submitted that the offender was an 'equal partner' to Ufi in the criminal enterprise.
2. The offender acknowledged that the offending was planned. He submitted that there was no evidence of substantial harm or injury to the occupants of the targeted home. He submitted that the offending fell at the lower end of the range for offending of this kind.
3. The offender submitted that Bugmy principles are engaged (Bugmy v The Queen (2013) 249 CLR 571 ("Bugmy")). His childhood was made challenging by his father's alcoholism, violence (though not directed to him) and imprisonment, and his mother being a drug user. I will address that childhood upbringing at length later in these remarks.

Consideration

1. Subject to considering the offender's culpability this was objectively, a very serious offence; albeit that it was not as serious as the substantive offence. Of course the conspiracy did not succeed: nothing was stolen and no (quantifiable) harm was done to the occupants of the targeted home. But, as Counsel for the offender accepted, the potential harm - with the prospect of occupants being present notwithstanding whatever surveillance or planning had been undertaken was significant. As particularly Simpson J noted in Tyler, for this crime, the offender is sentenced because of his agreement to engage in a course of conduct.
2. There was planning, stretching over days. The offender's conduct could not be said to be spontaneous even if, for reasons I will shortly state, his capacity to reason was impaired. I accept the Crown's submission that he played an active part, if not quite as active a part as Ufi, in that planning: in terms of timing for the offending and recruitment of persons to carry out the offending. The offending was also targeted at a family home. This explained the planning for the timing of the intended entry. I would regard Ufi as more culpable, at least in terms of objective circumstances: the evidence indicates that entry into the targeted home to steal was his idea and it was he who first suggested the use of the van (agreed facts 6 & 7). He also 'cased' the targeted home by himself. (Ufi's subjective circumstances were not apparent at this proceeding).
3. I find that the offender's offending was motivated by a desire to finance a drug addiction, which was admitted by the offender when he conferred with the community corrections officer. Although it had undeniably a financial aspect (a matter implicit in the offence itself) it was not financial greed, but need.
4. In Bugmy, the plurality emphasised that notwithstanding that Aboriginal Australians were subject to socio-economic disadvantage, the focus, when evaluating this consideration, had to remain upon the individual offender and his or her circumstances (at [41]). This particular offender's upbringing as an Aboriginal Australian was, I consider it fair to say, more benign than the predicaments of many other indigenous offenders who appear in this Court. He had parents who, for all their troubles, demonstrated love and support to him and provided him with material support when he was a young child. Regrettably the blight of domestic violence being directed by frustrated men towards women, and a corresponding reaction in women in taking drugs in coping with a violent domestic setting is not a societal phenomenon confined to indigenous Australians. Nor, regrettably, is it uncommon for teenage males to be bereft of a paternal role model. The Crown also noted that, correctly, his childhood disadvantage was not such as to entirely impair his executive functioning. He had worked effectively with the Aboriginal Land Council and has had a stable relationship.
5. Nevertheless, I accept that at the important and formative stage as he was entering adolescence, the offender did sustain disadvantage through the exposure to such violence, an absent father and afflicted mother, which facilitated a reduction in parental supervision and caused the offender to lose his way and, in particular, precipitated his descent into cannabis use and drinking which, for someone of his age, was likely to impair his neuropsychological development and thereby his capacity to make reasoned judgments and control his impulses. In this way, his childhood disadvantage did have a connection with drug taking.
6. Contrary to the impression conveyed by Dr Sidhu's report, I am not convinced that all was well in this offender prior to the death of his grandmother and, from March 2020, the death of his mother. This would minimize or disregard his serial offending. But a propensity for drug-taking, allied with specific stressors such as the deaths of loved ones, does help explain, if not excuse, why from March 2020 his drug taking escalated, to the point where it was his drug addiction, and need to feed it, that caused the offending.
7. In that sense, it would be simplistic to say that his drug addiction was the result of the exercise of free will and personal choice. With respect, what Simpson J said in R v Henry (1999) 46 NSWLR 346 at [337]-[340] is very much in point with this particular offender. I consider that his drug addiction is mitigatory in the sense that, notwithstanding that the offending involved some planning and extended over some days, it throws light on the offender's impulsivity and partly impaired his capacity to exercise judgement. In short, it reduced the seriousness of the offending to a degree and, with that, it moderates the weight to be accorded to general and specific deterrence. Although there is not statutory non-parole period, I read that his offending was below a figurative mid-range but above the low end of the range for offending of this kind.

Aggravating circumstance

1. In my view, it is open to take into account, as an aggravating circumstance, that the offending occurred whilst the offender was subject to conditional bail (s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW)('CSP Act')).
2. The offender's Counsel accepted that the circumstance that the offending occurred 'in company' was an aggravating factor. However that was inherent in the nature of the offending.
3. The offender has a substantial prior criminal history with varying offences. I reject his Counsel's submission that he had a limited record. Here, there were offences for affray, offensive language and threatening conduct. On multiple occasions, when apprehended he has been found in possession of a cutting weapon. There have been multiple instances of resisting police officers when executing their duty. There were certain driving offences and multiple offences of destroying or damaging property and drug possession. There have been multiple offences of common assault and stalking or intimidation. There are several offences concerning receiving suspected stolen goods and dishonestly obtaining property by deception.
4. However, the Crown fairly acknowledges that there are no offences in his history similar to the index offending. In that sense, his prior criminal history is not aggravating in the statutory sense.
5. Nevertheless, his record shows a pattern of disobedience towards the law which partly militates against a positive view of prospects of rehabilitation. Further, as the Court of Criminal Appeal noted in R v McNaughton (2006) 66 NSWLR 566 although the prior record is not contemplated as a matter relevant to the gravity of the offending, it is relevant in the sense of diminishing the prospect of leniency being extended.
6. Dr Sidhu, the offender's psychologist, commented that when he had raised the offender's history, the offender had either minimised his offending or demonstrated poor insight.
7. Suffice to say, his record disentitles him to leniency and augments the considerations of specific deterrence, denunciation and protection of the community.

Age and background

1. The offender was 36 years of age at the date of the offending. He was not young at the date of the offending.
2. Some of the offender's background is revealed in the Sentencing Assessment Report prepared by the Kempsey Community Corrections Officer, Ms Whitley, dated 14 December 2021.
3. But his background was more broadly canvassed in a report prepared Dr Mamta Sidhu, a forensic psychologist of the firm LSC Psychology, dated 6 December 2021. Dr Sidhu completed his studies in psychology in England, culminating in his obtaining a Doctorate in Forensic Psychology (University of Nottingham) in 2017. He has practised as a psychologist for 12 years. Dr Sidhu assessed the offender, by AVL, on 25 November 2021. Dr Sidhu was supplied with the offender's criminal history and the statement of agreed facts.
4. Plainly, the material background disclosed to Dr Sidhu comprised out of court statements made by the offender to him which could not be tested in the sentencing hearing. A natural reservation arises; however it should be acknowledged that it appears from what he informed Dr Sidhu was a balanced account: it was not all unremittingly negative. Indeed, his disclosures appear quite candid and were adverse to his interests in several respects; and therefore have an intrinsic plausibility. The account that the offender supplied to Dr Sidhu was as follows.
5. He was born of parents who were in a de facto relationship, and the eldest of the children from that relationship, with three siblings. The offender is indigenous, descendant from the Wangkumara tribe near Burke. He was exposed to violence between his parents, although violence was not inflicted upon him or his siblings; and observed alcoholism from his father and opiate use by his mother. Nevertheless, his parents did not mistreat him: they ensured that he, and his siblings, were clothed and well-fed. No sexual abuse was ever perpetrated upon him. He had a good rapport with his siblings and other positive connections within his community.
6. But his father was incarcerated by the time he reached the age of 9. For the duration of his childhood, he, the father, was incarcerated on three or four occasions and hence was periodically absent as a father. Even during the periods of separation, he remained close to the offender's mother. But his absence impacted upon the offender - the offender began spending more time out at night in the community from about the time he turned 13 and began to ride motor-bikes and smoke cannabis with anti-social peers. Dr Sidhu believed that the combination of a sometimes absent father and a mother with drug issues left the offender with a sense of isolation which hindered his capacity to meet his emotional needs.
7. His schooling was interrupted. He changed school many times. Nevertheless, at the primary school level, he was social, made friends without difficulty and was well behaved. He performed quite competently in class. In senior school, he began to encounter difficulty in Year 8. He was smoking cannabis and began to engage in truancy and if he was there at all, he was unmotivated. His school career deteriorated markedly, so that he left school by the end of Year 9.
8. After school, he worked for the Aboriginal Lands Council ('ALC') for 14 years and, during that period, he received on the job training as an archaeologist. He completed a TAFE qualification in Land Conservation. The offender reported to Dr Sidhu that he found enjoyment in his job. It also provided stability in his life.
9. Unfortunately, his drug use forced him to stop work and set him back. He took on trade roles, including as a housepainter. It was in this capacity that he last worked earlier this year. He told Dr Sidhu that he expects to have employment in this trade once released from custody.
10. The offender indicated to Dr Sidhu that he was generally fit and healthy. He started drinking from Year 8 at school, apparently at about the same time as he started taking up cannabis use. He denied being an alcoholic; although disclosed to Dr Sidhu that about 5 years ago, he had a violent episode with his partner which he seems to have connected with alcoholic consumption: he stopped drinking in an attempt to manage any violent tendency. Unfortunately, with the death of his mother in 2020, he relapsed in March 2021; using alcohol as a coping mechanism.
11. As to the extent of his cannabis usage, the offender told Dr Sidhu that since starting from the age of about 13, he has consistently smoked 1g daily; although curiously, he preferred to do so alone. The offender felt that it put him at ease and he did not "do stupid things." About 8 years ago, he used methamphetamine for the first time, to help him deal with the loss of his grandmother. He had been influenced by friends. Regrettably, he became addicted to that as well, to such degree that spent $400-500 a week. He acknowledged that his addition to ice had a connection with his starting to offend, so as to sustain his drug habit. His mother passed away in March 2020, after a longstanding illness. The offender has struggled to deal with his grief. He reported using heroin for the first time. He told Dr Sidhu that used 1 point a week for a period of 5-6 months. But, he said, he did not take to heroin and whilst he abstained from that drug, he increased his taking of 'ice'.
12. The offender has also had difficulties with gambling. He denied, however, that he had accrued debts or had taken out any loans to finance any gambling habit. More positively, he indicated to Dr Sidhu that he had sufficient self-restraint to limit his gambling ($100) presumably on each occasion, and finds he is able to abide by that limit.
13. The offender is single. It appears that he told the community corrections officer that he had separated from a long-term partner of 15 years. However, he reported to Dr Sidhu that he was currently in a relationship with his partner which was positive. He has three children; two of whom are adults, and a four-year old son. The youngest son resides with extended family members. The offender told Dr Sidhu that he had a positive relationship with his son and granddaughters.
14. He told the CCO that he has only had sporadic periods of employment throughout the years, although, as noted he had a substantial period of occupation with the ALC he has been mainly unemployed in the last 3 years. He was a recipient of a Newstart Centrelink allowance until his arrest.

Plea

1. The parties agreed that the offender is entitled to a 25% discount on account of his plea.

Contrition

1. Ms Whitley indicated that the offender had expressed little insight into his offending. Indeed, his initial insight was centred upon the effect of his offending on his own family.
2. Dr Sidhu also noted that the offender had expressed regret at being separated from his family.
3. In none of this is there any acceptance of responsibility. I am unable to find that he has remorse for his offending.

Psychological assessment

1. Although he set out certain kinds of treatment which would be beneficial for the offender, Dr Sidhu did not, however, identify any recognisable psychiatric disorder or mental abnormality in the offender.

Prospects of rehabilitation and likelihood of re-offending

1. The offender told Dr Sidhu that he would like to receive support to cut down on his taking cannabis and to stop his taking of ice altogether. He expressed optimism that he could achieve this. He said he felt supported by his father and family and more 'pro-social' peers.
2. Ms Whitley reported the offender informing her that he can return to the Rooty Hill residence upon release. His father resides there and he is apparently supportive of the offender; although Ms Whitley expressed a reservation as to the father's capacity to address the offender's criminogenic factors. The offender told her that he intends to associate with pro-social influences in the future. He expressed his willingness to engage with specific interventions and community supervision to help him address his substance abuse and impulsive decision-making.
3. Overall, Ms Whitley assessed him as being a 'Medium-High' risk of re-offending on the LSI-R scale. She assessed him as being suitable to undertake community service work.
4. I noted earlier the offender's explanation as to his involvement in the offending, which appeared to be simply to please the co-accused. That statement, in combination with Dr Sidhu's general observation as to his "poor insight", does not augur well for his future rehabilitation.
5. As to his drug-taking, the community corrections officer noted that the offender had previously been a participant of the Drug Court and Residential Rehabilitation, but had been discharged from both services through testing positively for illicit substances.
6. Dr Sidhu commented upon the offender's expressed motivation to complete programs to address his drug problem; albeit that it was not entirely clear whether he was agreeable to participate in all the forms of intervention that Dr Sidhu identified. Further it is not clear for an offender with this offender's record why the Court should expect effective rehabilitation now when it has not been demonstrated when the offender had been given past opportunity.
7. The offender's Counsel argued there was reason to be "optimisitic" about his prospects of rehabilitation. He had "cleaned up his act" and had a supportive father and prospect of employment. But the Crown responded that in a context of showing little insight into his offending and his previous missed opportunities to reform, the Crown would be sceptical. I agree with both sets of submissions. Whilst there are positive indications, given his age and past opportunities to rehabilitate himself, aspirational statements of intent by the offender should be treated with some scepticism. I find that his prospects of rehabilitation are nor more than reasonable, and even that might be a generous assessment.

PARITY

1. There is nothing before the Court to indicate the predicament of the co-accused, Ufi, and in particular, whether he has taken a plea and been sentenced. The Court need not therefore consider this principle otherwise than in the context of considering the gravity of the offending which, as indicated, is principally measured by the roles of the conspirators.

INSTINCTIVE SYNTHESIS

1. Where the conspiracy relates to a specific statutory offence, the maximum penalty for the substantive offence should be used as a yardstick during the sentencing process: The Queen v Hoar (1981) 148 CLR 32 at 39. In Pettersen v R [2013] NSWCCA 20 at [8], a conspiracy to break, enter and steal, the court held that the penalty for a common law conspiracy is at large subject only to a requirement that the sentence imposed not be excessive. Here the yardstick is 14 years imprisonment for the substantive offence (with no statutory non-parole period.). I take that yardstick into account.
2. I also take into account the considerations in s 3A of the CSP Act. For offending of the present kind, although moderated to a degree, considerations of general and specific deterrence and denunciation remain of the utmost significance. I would also emphasise the need to protect the community.
3. I am satisfied that the s 5 threshold has been crossed. The offender's Counsel conceded as much.
4. In my view, the starting point should be 2 years and 4 months' imprisonment, subject to the discount on the plea.

Period in custody

1. The offender has been in custody, for reasons attributable to this offence, for a period of 267 days. The Crown accepts that the term of imprisonment should be backdated to 24 March 2021. I agree.

Special circumstances

1. The offender has spent not insignificant times in custody. Although the offender's submissions did not expressly advert to institutionalisation, having regard to the frequency of his periods of incarceration, I find that there is a real risk of that. In order to avert or reduce that risk and generally to aid his rehabilitation, especially to address his drug problems, I find that there are special circumstances.

SENTENCE

1. Mr Knight please stand.
2. You are convicted of the offence of conspiracy to commit aggravated entry into a dwelling, in company, with intent to commit an indictable offence, namely to steal.
3. Taking into account the 25% discount on your plea, I sentence you to a term of imprisonment of 1 year and 9 months commencing on 24 March 2021 and expiring on 23 December 2022 with a non-parole period of 1 year and 18 days expiring on 10 April 2022; after which you will become eligible for parole.

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