R v Lineham

FACTS

1. The relevant facts were outlined in my judgments of 25 August 2016 and 14 October 2016. However, in light of the sentencing submissions now presented and the fact that the two drug offences were not directly the subject of the trial, it is necessary for me to briefly outline the facts as found, for the purposes of sentencing the offender.
2. On Saturday, 17 May 2014 at 7:00 pm, three uniformed police officers were patrolling the area of Surry Hills in a police vehicle. Constable Daniel Mann was the driver, and Constable Brendan Jordan and Sergeant Victoria Turner were passengers. As they were patrolling Surry Hills, they observed a vehicle parked in Fitzroy Street and blocking a laneway in Little Riley Street. It is not in issue that the vehicle was registered in the name of Mr Philip Lineham - the offender's father.
3. The offender was seen to approach the vehicle in question, as the vehicle's lights were flashing as he came towards it. The door was unlocked and thereafter, at least two officers, being Sergeant Turner and Constable Mann approached the offender. The offender had been seen to walk from Corben Street, a street from which loud music was playing.
4. The offender was questioned by Sergeant Turner about parking in a "No Stopping" zone. I accept that she stated:- "It is common for drug dealers to park unlawfully in areas like this in order drug drop off. That, along with the fact that you've parked in a No Stopping zone, is the reason for us speaking to you now."
5. The offender was then asked: "Do you have anything on you or in your vehicle that you shouldn't have?" The offender is said to have responded: "No."
6. Instructions were then given to the offender to place his wallet and phone on the driver seat and to step away from the vehicle. At that point, the offender lunged into the vehicle towards the centre console and the evidence, which I accept, was that Sergeant Turner grabbed the offender's arm and asked him what he was doing. The offender stated that he was "just getting my phone."
7. The offender was then moved towards the opening of the vehicle and Sergeant Turner stated that she wanted the phone which she saw in the offender's pocket of his jeans. The offender responded: "This one?", and then sprinted away. The offender stated in evidence that he ran off as he had drugs in the car and because he was intimidated by police. The offender explained that this was because of an incident that occurred when he was 16 at Five Dock, when he was handcuffed, kicked in the back by the police, after being threatened with being shot.
8. The offender's wallet contained the sum of $600, in respect of which, I found the offender not guilty of the offence of dealing with suspected proceeds of crime.
9. A pursuit then took place involving the police officers.
10. I am satisfied that during that pursuit, the offender placed a black Nokia phone, which Sergeant Turner had earlier requested, in a garbage bin on Albion Street. The phone was retrieved by Mr Thomas Brown who was having dinner at the Chur Burger restaurant at Surry Hills. At around 7:00 pm, Mr Brown was walking with his girlfriend to her car and had noticed a man running down the street towards him and throwing what was identified as the phone, into a green bin with a red lid partially open. For the reasons given in my judgment of 25 August 2016, I was satisfied that based on the description provided by Mr Brown, his observations, the timing and the identification of the offender by police officers in the vicinity on the VKG radio, that it was the offender who had deposited the phone in the garbage bin. This was so notwithstanding that the offender had denied the phone was his and prepared a map which denied him being in the vicinity of the Reuben Hills Café or across any length of Albion Street, Surry Hills.
11. During the course of the pursuit, another police vehicle came to assist, being Surry Hills 41. This was an unmarked vehicle in which Constables Calderon, Carroll, Kristan and Griffin were together. Constables Carroll and Griffin exited the vehicle on Waterloo Street near Albion Street. Ultimately, Constables Griffin and Carroll saw the offender running towards them in Albion Way towards the intersection with Waterloo Street. Sergeant Turner was located on Albion Way near the intersection with Little Riley St. When the offender saw Constables Griffin and Carroll, he turned and the offender's own evidence was that he knew that Sergeant Turner was in pursuit, so he turned into Little Riley Street and walked towards Waterloo Street on Albion Way. Upon observing Constables Griffin and Carroll at the intersection of Waterloo Street and Albion Way, the offender made the assumption that it was easier to run around one police officer rather than two.
12. Sergeant Turner said to the offender: "Mate, Police, stop there!" at which point, the offender slowed down, raised his arms above his head and said: "Okay, I give up." Sergeant Turner was concerned that he might run away and screamed out: "Get on the ground! Get on the ground!" Sergeant Turner said that she reached out with her right hand to take hold of the offender's shoulder and she did not think she "got there." She stated:- "Yes. He's, he's done a side-step. I've - so he's done a side-step and then gone to run around me or just past me, so I had already reached down and I'd gone with him there cause I, I just knew he was going to do it, so I've put my arms out, like my hand out." [3]
13. The description then proceeded:- "Around my left side, and as he's done that I've gone with him and taken hold of his chest and he's continued running and sort of just did a sweeping motion as he's run and kept going and because I was already there and had my arms up I, I've felt the sweep like my arms getting brushed pretty much and I've fallen back landing on, so on my palm and, and just felt enormous pain straight away just when I was on my back and he's continued running and Constables Griffin and Carroll ran past me as well." [4]
14. In my judgment of 25 August 2016, I stated that in all, Sergeant Turner was adamant that she had her hands on the offender's chest and he had brushed "like a sweep" and kept running. I did not accept the offender's account that he sprinted the whole time and did not have a conversation with Sergeant Turner.
15. On this basis, I stated that the offender was on any version, aware of Sergeant Turner's presence, between him and his escape. He would have been aware that he was sweeping or brushing his arms as Sergeant Turner described. I was satisfied beyond reasonable doubt, that the offender did come into contact with Sergeant Turner in the way she described and consequently the elements constituting the assault were satisfied. I was further satisfied beyond reasonable doubt, that based on the evidence, Sergeant Turner did suffer an external rotation injury, which dislocated her shoulder on the left side, a harm which was not transitory or trifling. Therefore I was satisfied to the requisite standard of the element of actual bodily harm.
16. Following this event the offender passed Sergeant Turner and was pursued by Constables Carroll and Griffin.
17. On the evidence, I accepted that Mr Dos Santos Lima saw the offender, then took out his legs, and the offender: "Just went to the floor by himself." Mr Dos Santos Lima held him in what was variously described as an arm lock or a Brazilian Jiu Jitsu hold. Mr Dos Santos Lima thereafter described how Constables Carroll and Griffin came to grab the offender's legs. He described that he was using his right arm as a hook around the offender's neck and described it as a move he had learned from Brazilian Jiu Jitsu. He denied strangling the offender. He stated that he was pulling the offender's neck to the ground as he was holding his knee outstretched into the offender's back.
18. There was another civilian, Mr Madeira De Silva, a friend of Mrs Dos Santos Lima, who apparently assisted in the restraint of the offender. He was not called to give evidence having departed Australia following the incident to return to Brazil.
19. Subsequent to the restraint of the offender by the persons in question, Constable Mann struck the offender in the eye. The offender's evidence was that Constable Mann struck him, hitting his eye five times. Constable Mann's evidence was that he struck him three times and the punches were not blocked. I accepted on this basis, that the offender would not have been thrashing about at the time he was struck.
20. Further, I was not satisfied on the evidence, that the striking was done by Constable Mann because he saw the car door open and that the offender had keys in his right hand, and believed that he intended to escape the scene with the drugs in the vehicle. There was no evidence that indicated at the time, that the offender still believed the drugs to be in the vehicle and furthermore, Constable Carroll had given evidence that he saw the keys in the offender's left hand and tried to get the keys out one by one.
21. Soon after, an ambulance arrived. According to the fact sheet prepared at 1:37 am on 18 May 2014, the stated purpose of the ambulance was: "Due to the fact that the offender appeared to be semi-conscious and police were of the opinion that he may have consumed prohibited drugs during the extended foot pursuit." [5]
22. In the ambulance case description it was noted:- "Male approx. 28 years old on scene with police who state PT arrested post approx. 3 min foot persuit [sic]. PT falling and sustaining injury to R eye during arrest." [6]
23. In my judgment, I stated:- "Constable Mann denied giving that information to ambulance stating that he returned back to the police station when the ambulance arrived. The ambulance records, Exhibit F, made no reference to police suspecting the patient as having consumed prohibited drugs. No doubt, if that suspicion was truly held it would have been important for the ambulance to be advised of it. Nor was any mention made of the fact that the [offender] was apprehended by civilians or the fact that he, that is, Constable Mann had struck the [offender]." [7]
24. After the offender had returned from hospital, it was clear that the assumption of the offender consuming drugs was incorrect, and Constable Mann did not amend the facts sheet or the COPS entries to reflect the true state of the information as he knew it. The COPS entry recorded:- "Officer response: defensive strike punch take downs." [8]
25. Whilst both Constable Jordan and Sergeant Turner observed the offender with blood, both denied that they saw Constable Mann strike the offender. Neither mentioned that they saw the offender with blood in their police statements. Constable Griffin gave evidence that he did see Senior Constable Mann strike the offender a number of times but stated that it was an oversight that he did not include this in his statement. [9]
26. Constable Carroll denied seeing Senior Constable Mann punch the offender but stated that he was subsequently told by other police. [10] He later revealed that he was aware that Senior Constable Mann punched the offender in the face as he believed Senior Constable Mann told him later that evening. [11] However, he remained adamant that despite being next to the offender at the time he did not see him being punched in the face. [12]
27. Subsequent to these events, the offender's vehicle was searched and inside the console, police located:- 1. Eighteen small plastic resealable bags wrapped together in tissue containing a white powder, which was determined to be 11.5 grams of cocaine. 1. The average purity of the cocaine seized by the police was 44.5%; and 2. The drugs were estimated to have a street value of between $3240 and $5400; [13] 1. Twenty red and grey capsules, and two yellow and green capsules in small plastic resealable bags. Nineteen of the red and grey capsules were analysed, and determined to be 1.66 grams of 3,4-methylenedioxy-methylamphetamine (MDMA). 1. The average purity of the MDMA seized by the police was 69.5%; and 2. The drugs were estimated to have a street value of between $475 and $950. [14]

OBJECTIVE CIRCUMSTANCES

1. In Engelbrecht v Director of Public Prosecutions (NSW), McColl JA stated: "[52] Where a criminal charge has been heard by a judge alone, the sentencing judge is, effectively, both jury and judge. In those circumstances the sentencing exercise will entail the judge determining the issue of culpability, in contrast to the position where there has been a trial before a jury which has found the offender guilty. Even in that circumstance, whereas the verdict of guilt decides the issues joined by the plea to the charge, it does not decide all facts of possible relevance to sentencing. The sentencing judge will be able to make findings as to the matters underpinning the conviction for the purpose of assessing the degree of criminality involved and take them into account in sentencing. As is apparent from R v Isaacs, in determining the facts relevant to sentencing, some will have emerged in evidence at trial, while others may only emerge in the course of the sentencing proceedings. [53] Findings of fact made by a sentencing judge must be consistent with the verdict of guilt and, in the case of facts taken into account in a way that is adverse to the interests of the accused, must be arrived at beyond reasonable doubt. The effect of this constraint in a given case may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender (footnotes omitted)." [15]
2. I turn to consider the relevant objective circumstances.

Assault police occasioning actual bodily harm

1. In relation to the offence of assault police causing actual bodily harm, the Crown submitted that the offending conduct fell within the higher end of the mid-range because:- 1. The offender was evading police who were acting in the lawful execution of their duty; 2. The offender was asked to stop but instead side-stepped and shoved Sergeant Turner who fell heavily and dislocated her shoulder; 3. The actual bodily harm was a dislocated shoulder, which was a serious injury; and 4. The victim underwent shoulder stabilisation surgery and was subjected to at least six months of rehabilitation and recovery.
2. The offender submitted in relation to the offence of assault police, it could not be found beyond reasonable doubt that the offender intentionally (as opposed to recklessly) applied any force to Sergeant Turner or that his actions caused any serious injury. [16] The Crown accepted that what was involved amounted to recklessness. [17] Clearly the offender's intent whilst running was to evade arrest and capture. In my judgment of 25 August 2016, I stated that the offender was aware of Sergeant Turner's presence between him and escape, and would have been aware that he was sweeping or brushing his arms as he was fleeing. Sergeant Turner's account which I accepted [18] conceded that the offender's action was possibly incidental contact as he was running. [19] This did not amount to shoving as asserted by the Crown.
3. It was submitted that it was not found that Sergeant Turner's shoulder stabilisation surgery was directly consequent to the injury she suffered. [20]
4. Sergeant Turner's injury was a Hills - Sachs lesion with a bone bruise and labral tear. The evidence was that shoulder stabilisation surgery was the preferred option and the alternative treatment regime would have been a physiotherapy programme of three to four months. [21] In the circumstances, I do not accept that the surgery was not directly consequential to the injury suffered by Sergeant Turner. I accept nonetheless that a less invasive treatment was open even though not preferred.
5. Even so the charge itself is one of actual not grievous bodily harm, and care must be taken not to infringe the principle in R v De Simoni. [22]
6. The circumstances of the offending conduct involved evading police and seeking to lull Sergeant Turner into believing he was submitting when in fact, this was to facilitate further evasion. This is the context in which Sergeant Turner was "acting in execution of her duty" - an ingredient of the offence.
7. Sergeant Turner's injuries were occasioned by her fall which was brought about by the offender's contact. The kinds of assault captured by the offence can vary significantly. The extent of the injuries and the intention of the offender are instrumental in determining the nature and length of any sentence. [23]
8. Overall I am satisfied that the offence falls below the mid-range of objective seriousness.

Drug offences

1. In respect of the two drug offences on the indictment where pleas of guilty were entered, the Crown submitted that the prohibited drugs were located in small resealable bags for distribution, which was an indicia of supply. Further, the Crown submitted that the offender had a small mobile telephone used for supply of the drugs and the messages located on the mobile phone point to the existence of drug supply activity. It also drew attention to the fact that the offender ran from the police when first asked to search the vehicle and discarded the second mobile phone into the bin, revealing a consciousness of guilt.
2. For the purposes of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), [24] the Crown drew attention to s 21A(2)(n), in that the offence was part of a planned or organised criminal activity; and s 21A(2)(o), the offence was committed for financial gain. The Crown submitted that these were aggravating factors.
3. In relation to the supply cocaine offence, for the reasons given in my decision of 14 October 2016, [25] I was satisfied beyond reasonable doubt that the amount of cocaine involved was 11.5 grams. The offender nevertheless submitted that the quantity was in the lower range for an indictable quantity which ranges from 5 grams up to 250 grams (being a commercial quantity).
4. The offender repeated a submission in relation to the supply MDMA offence, noting that the quantity fell towards the bottom end of objective seriousness, namely 1.66 grams [26] for an indictable quantity, up to an amount of 125 grams (being a commercial quantity). It was noted that the amount in question was significantly less than the commercial quantity. It was also noted that the amount was significantly less than those referred to by Fagan J in his analysis of comparable sentences for the supply of MDMA in Forti v R. [27]
5. In a pre-sentence report prepared by Ms Nancy Vaccarella from Community Corrections dated 13 October 2016, Ms Vaccarella stated in relation to the offences, it was difficult to canvass the offences with Mr Lineham as he disputed the facts. Whilst the offender disputed certain aspects he stated that he was willing to accept responsibility for the supply offences. Mr Lineham denied that he was supplying illicit drugs for financial advantage and denied ever engaging in illicit drug use. Beyond this, the offender was unable to provide any further clarification behind his offending behaviour. In relation to the assault offence, "Mr Lineham denied that he had assaulted the police officer."
6. Supply, for the purposes of s 25(1) of the 1985 Act, is defined in s 3(1) as follows: 3 Definitions (1) "supply" includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.
7. As the amount of drugs in question in each case were not less than the traffickable quantity, they are deemed by s 29 of the 1985 Act to have been in possession for supply. The offender did not seek to prove that he had the drugs in his possession otherwise than for the purposes of supply. [28]
8. Apart from this, the packaging of the drugs and the use of the mobile phone (its contents being produced in Exhibit G) in particular its contents on the day in question, and the use of coded language, satisfy me that the offender was involved in drug supply for financial gain. [29] Inspector Hancock in a statement of 8 August 2016, stated:- "Based on my training, knowledge and experience persons involved in the supply of prohibited drugs carry more than one phone that have separate uses. One phone is normally subscribed in the name of the actual person and used as their personal phone. The second and any subsequent phones are normally subscribed using false particulars and are used to converse with persons seeking to supply or purchase prohibited drugs and arrange meetings to do the same. On 17/05/2014 at 4:58:44 pm the subject phone received a text message in which the word 'caps' is mentioned. Based on my training, knowledge and experience the term 'caps' is coded conversation commonly used to refer to the prohibited drugs 3,4-methylenedioxymethylamphetamine (MDMA) in capsule form or a street level deal of heroin. The term 'caps' is also used in a text message received by the subject phone on 20/05/2014 at 10:49:30 am. On 20/05/2014 10:49:32 am the subject phone received a text message in which the word 'bags' was used. Based on my training, knowledge and experience the term 'bags' is coded conversation commonly used to refer to street level deals of prohibited drugs. This is due to the street level deals being individually packaged in small resealable plastic bags that have been pre-weighed for ease of sale and distribution." [30]
9. Exhibit H revealed that the phone itself was recorded under the name of a subscriber known as "John C Tse" of 9 George Street, Lidcombe. The phone itself used a recipient name of "F Rob." [31] Neither of these names are the offender's name. The offender denied the phone was in his possession, however these denials were rejected at trial.
10. No charges have been laid in respect of what appears on the phone. [32]
11. Notwithstanding the offender's submissions to the contrary, I am satisfied that both the drug offences should be seen as committed as part of a planned activity and for financial gain for the purposes of ss 21A(n) and 21A(o) of the 1999 Act.
12. The Crown further submitted that the phone contents and the packaging of the drugs found in the offender's possession demonstrated the offender's substantial involvement in supply of drugs. [33]
13. In Scott v R, Hislop J (with Allsop P and Grove J agreeing) stated: "[27] In the case of offences of supplying prohibited drugs the need for general deterrence is high. In R v Gu [2006] NSWCCA 104 Howie J (Grove and Simpson JJ agreeing) summarised the position as follows: '[27] ... There has been a consistent line of authority in this Court that has made it quite clear that, unless there are truly exceptional circumstances present, a full-time custodial sentence ought to be imposed wherever the offender has been substantially involved in the supply of prohibited drugs...It applies whether or not the offender has made a profit from the supply of drugs and a profit is an aggravating circumstance...' [28] In R v Gip [2006] NSWCCA 115, (2006) 161 A Crim R 173 Rothman J said in respect of whether an offender has been substantially involved in the supply of prohibited drugs: '[43] ... The question for the sentencing judge is whether there are facts, proven beyond a reasonable doubt, which facts give rise to an exercise of discretion consistent with the approach in Clark. Those facts may be an agreement to supply on another occasion, an attempt to supply on another occasion, participation in a process which envisages supply on more than one occasion, participation in a syndicate, or a number of other circumstances.'" [34]
14. In Forti v R, Basten JA stated:- "[20] Care should be taken in using the term "exceptional circumstances" as if it were a statutory prescription requiring definition. It is no more than a handy phrase covering a range of factors which may provide guidance. Further, what constitutes "substantial" involvement in the supply of drugs and whether such activities may be described as "trafficking" are matters for evaluation in the individual case (footnotes omitted)." [35]
15. Notwithstanding the relatively small quantities of drugs found in the offender's possession, I am satisfied that it was in a context where the offender's involvement in supply was substantial. On his own admission he was not a user. I am satisfied that he maintained use of a separate phone for drug transactions and the messages contained therein indicated that he was dealing with more than one person on 17 May 2014. The locations mentioned in those messages include areas proximate to where the offender was apprehended being Corben Street, Redfern/Alexandria, Paddington and "Surry" (which I take to refer to Surry Hills). The times of the calls were also proximate to the offender's first interaction with police at around 7:00 pm. [36]
16. The offender submitted within the terms of s 21A(3)(a) of the 1999 Act that the drugs were intercepted and none of the drugs in relation to the offence charged were ever used, consumed or distributed into the community. That submission to the extent it has any relevance needs to be considered in light of what was said in R v Shi: [37] "[34] … culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse: R v Le Cerf (1975) 13 SASR 237 and R v Laurentio and Becheru (1962) 63 A Crim R 402."
17. Having regard to the overall circumstances in particular the quantities and purities and notwithstanding the aggravating features referred to both offences fall within the lower range of objective seriousness for offences of this kind.

Plea of guilty

1. The offender entered pleas of guilty in relation to the two drug offences on the first day of the trial. Notwithstanding the disputed facts hearing and the offender's denial in relation to Exhibit G, the Crown submits that the offender is entitled to a minimal discount of 10% in respect of these matters. I accept that this is so even though the utility of his plea was diminished [38] by an unsuccessful attempt to deny that the mobile phone [39] was in his custody at the time he was first apprehended by police and unsuccessfully contesting the quantity of cocaine established to be in his possession.

Absence of prior convictions and prior good character

1. The Crown conceded under s 21A(3)(e) of the 1999 Act, that the offender did not have any record of previous convictions.
2. On behalf of the offender it was submitted that pursuant to s 21A(3)(f) of the 1999 Act, that the offender was otherwise of good character.
3. In support of the offender, the Court has received an affidavit from his mother, Mrs Pauline Lineham, annexing a statement from her and the offender's father - Mr Philip Lineham. Needless to say, both are supportive of the offender, remarking that they were unaware of any aspects of his life, even though they had previously seen him every day. They observed him as someone who was hard-working, fitness and health conscious, generous and loving, but were shocked with the situation in which he found himself and further, that they felt concerned about his mental and physical welfare, consequent to injuries occasioned during his arrest. They state that the offender has immediately disconnected himself with previous associates and has not spoken to them since the incident. In short, I am satisfied that on the basis of the correspondence that both Mr and Mrs Lineham, and the offender's partner, Dejna provide a strong level of family support.
4. The offender's employer, Mr Shaun Wickenden, director of Reliance Replacement Vehicles, has provided a character reference dated 10 October 2016. His business provides accident management services for not-at-fault drivers by offering customers a replacement vehicle which can be provided whilst car owners were waiting for their repairs to be finalised. The offender has been employed since 10 August 2015 in a role which requires him to assist in the delivering and retrieval of vehicles from customers and repairers, and maintaining relationships with suppliers. Mr Wickenden notes that the offender has since proven to be reliable and diligent and has been promoted to the role of area manager. In this position, the offender is responsible for a team that looks after 15 locations and has taken responsibility for the results of the area against key performance targets. Mr Wickenden is aware of the matters before the Court and has indicated, that subject to availability over the longer term, he is willing to keep the offender on as an employee of the company.
5. Further character references have been provided by Mr Patrick Stewart, who describes the offender as loyal, hard-working and caring individual, that often goes out of his way to help others. He states that he has found the offender to be reliable and trustworthy, but was surprised to hear of his recent conviction. Mr Stewart has been a family friend of the Linehams for the last 18 years.
6. Finally, a reference has been provided by Rohoullah Kargarian, dated 7 October 2016. He has known the offender and his family for over 15 years, but in particular, has had a stronger connection over the past three years. Mr Kargarian refers to the fact that over the past 18 months, the offender has been assisting his son, Shamim, with depression and heroin addiction. He describes him as having surrendered himself both physically and mentally to facilitating and enabling his son's rehabilitation, conducting personal training sessions and counselling.
7. Otherwise, Mr Kargarian described the circumstances when he was informed of the charges now faced by the offender as "a big shock" and "totally out of character."
8. The offender's absence of prior convictions and prior good character are acknowledged as relevant. However in the context of the drug matters, they carry limited weight. In R v Leroy, Street CJ held: "Very frequently, those selected to play some part in the chain of drug trafficking, as the appellant plainly enough was, are selected because of their records, their past and their lifestyles are not such as to attract suspicion. It is this in particular which has led the courts to take in the case of drug trafficking a view which does not involve the same degree of leniency being extended to first offenders." [40]

Likelihood of reoffending

1. On behalf of the offender, pursuant to s 21A(3)(g) of the 1999 Act, it was submitted that he was unlikely to re-offend for the following reasons: 1. The circumstances of offending arose from negative peer associations he developed in a local sport club (kick boxing group) which he has since disassociated from; 2. He has strong family support; and 3. His compliance to date with stringent bail conditions.
2. The pre-sentence report disclosed that the offender does have a strong support network including his parents and partner, and continued to maintain full time employment and impressed as motivated in wanting to make positive changes. No financial or social issues were identified as contributing to the offending. [41] It further finds that the offender is at low risk of reoffending.
3. The Crown for its part conceded that the prospects for rehabilitation were good and the significance of specific deterrence was reduced. [42]
4. I accept that the offender has strong support and has disassociated himself from previous associations. On the evidence I am satisfied that that there is a low prospect of reoffending.

Remorse

1. The offender has argued that he is entitled to mitigation of sentence having demonstrated remorse under s 21A(3)(i) of the 1999 Act.
2. The offender appears not to accept responsibility for the offence of assault police causing actual bodily harm. [43]
3. In relation to the drug offences the report of Ms Perlmutter states that the offender was worried about the effect of this event on his future career and upon his ability to be accepted into the army. [44] Ms Perlmutter obtains a history of the offender stating:- "it serves me right … I am so sorry this happened … it all could have been avoided if I had not gotten myself in this situation … I regret ever being involved with drugs … and I have caused so much damage to the people around me." [45]
4. In these circumstances, the Crown submitted that the offender's remorse in relation to the drug offence was limited and shallow.
5. Bearing in mind the period during which the offender consulted Ms Perlmutter it is unclear as to when the abovementioned history was provided to her. [46]
6. On behalf of the offender, particular attention was drawn to the offender's actions described earlier where Mr Kargarian refers to the offender assisting his son, Shamim, who is suffering from heroin addiction and depression.
7. In my view bearing in mind the provisions of s 21A(3)(i) of the 1999 Act, the remorse expressed for the drug offences can only be described as limited. The offender has not been forthcoming about his involvement in a way that could be regarded as fully accepting responsibility and seems focused on the impacts on himself.

Extra-curial punishment

1. The offender submitted that the Court in considering sentence should take into account the extra-curial punishment suffered by the offender as an additional matter under s 21A(1)(c) of the 1999 Act, noting:- 1. The offender was revengefully assaulted by Constable Mann in circumstances where he offered no defence or was otherwise comprehensively restrained by up to four other persons; 2. As a consequence of Constable Mann's assault, the offender has suffered: 1. Pain and suffering to his right eye, including temporary loss of vision; [47] 2. Permanent damage to his right eye sight; [48] and 3. Psychological effects in the form of ongoing post-traumatic stress disorder. [49]
2. In response, the Crown submitted as follows:- ".. in terms of extra curial punishment that the officer was acting in execution of duty, albeit a little bit forceful but was not acting revengefully or for some other purpose other than he was restraining the offender who was lashing out and was needing to be restrained by four persons. So that this is not a case in which an officer was using extra force that can be defined as extra curial punishment. [50]
3. When asked to reconcile this statement with the finding that the offender was not thrashing about at the time he was struck, the Crown further submitted:- "Your Honour, in the judgment as I read it, the thrashing about had stopped at a certain point, however, and that was when the punches were occasioned, the strikes were occasioned to the offender. However the evidence, and I don't think your Honour states that the offender was never thrashing about, and that the submission was that the offender at some point during his time on the ground was thrashing about, and the evidence that came out during the trial was that he stopped thrashing at some point. It only goes so far as this is not a circumstance in which the offender was opportunistically hit, in the context of which he had not been doing anything that was of a criminal nature. That in fact the strikes to the face that caused the injury to the offender were done in the context of him evading police, a lengthy police pursuit, and that subsequently prohibited drugs were found for which he pleaded guilty, and that therefore extra curial punishment should not be available as a factor for your Honour to take into consideration as any type of exceptional circumstance that would warrant the offender not serving a time of full time imprisonment. That's as far as that submission goes and I apologise if I've misled your Honour." [51]
4. A suggestion had been made during the trial that the level of force used by Senior Constable Mann was because:- "… certainly intelligence that police have, that perhaps [the offender] might have been somebody that had more strength or had training that might need them to pursue him and to attempt to restrain him." [52]
5. Ultimately, no evidence was presented to support this contention.
6. Constable Mann gave evidence that the offender was a member of a particular gym known as Shark Tank MMA, [53] and previously a member of the French Foreign Legion. [54] The following exchange is recorded:- "Q. We heard on the VKG, you said you were going to "fucking shoot" the accused. That wasn't the only obscenity you swore at him on the foot pursuit, was it? A. I could possibly have yelled something like "Fucking stop", maybe. I don't recall. It's typical, when you're chasing someone. Q. You called him a "motherfucker"? A. I don't remember that. Q. You're not denying it? A. I couldn't recall, it's a few years ago. Q. You were shouting at him the whole time you were trying to follow him, correct? A. I'm sure I would have been calling him to stop the entire time, yes. Q. You continued screaming at him when you punched him in the face? A. No. Q. You called him a "cunt"? A. No. Q. You did that on a number of times as you were punching him? A. No, I didn't. Q. You swore every time you hit him, didn't you? A. No. Q. Not one of your punches were blocked, were they? A. Of the three, no. Q. They were all clean punches to the face, correct? A. I don't know how you'd clarify a clean punch from any other punch. Q. The accused didn't put his arms in front of his face to block your punches, did he? A. I don't recall, he was fighting around, flailing. Q. You just agreed that they were clean punches to the face. A. I said I punched him in the face. They weren't blocked." [55]
7. As noted earlier the only police officer who gave evidence of seeing Senior Constable Mann strike the offender was Senior Constable Jordan and even then he did not disclose that in his statement, but rather his oral evidence. [56] Others saw blood and the offender unconscious.
8. I have earlier made reference to the lack of recording of this event and the information provided to paramedics who attended.
9. In my judgment of 25 August 2016, I stated in relation to the charge of resist arrest that there was much in the narrative that caused me to doubt the credibility of the Crown case and the credibility of the police witnesses.
10. Photographs of the injuries sustained by Mr Lineham were tendered as Exhibit J and 11. Mr Lineham was referred by Dr Ginnane to Dr Stern, who saw him on 26 May 2014. Dr Stern's reports were tendered as part of Exhibit 12. Dr Stern noted on 26 May 2014:- "The right vitreous revealed vitreous veils (? Partial posterior vitreous detachment). There was no right retinal tear or vitreous cells or pigment. There was a right lateral sub-conjunctival haemorrhage (with clear edge) Pupillary reactions were normal and of course right upper and lower lid haemorrhage with small right upper lid ptosis." [57]
11. Dr Stern further recorded the main complaint as being that the "right eye vision was weaker than the left eye (uncorrected) plus linear/floater(s) in the right eye, but no flashes or shadows." [58]
12. On 4 June 2014, Dr Stern reported that he found a small peripheral retinal tear which would need laser treatment and accordingly referred the offender to Dr Mark Gorbatov, retinal specialist, for treatment.
13. Dr Gorbatov provided a report dated 5 June 2014, where he stated:- "…the right eye has a posterior vitreous detachment and there is a small tear superiorly near the ora. The left eye does not have a PVD. I indented him all around on both sides to make sure he does not have dialyses, which is a very common injury in boxers, but there are none present. Laser was applied around the small break without incident today. I will check him to make sure that the laser reaction was satisfactory and that no new breaks developed in three weeks' time. He knows to come promptly if the vision deteriorates or he gets new floaters." [59]
14. The offender was also seen by Ms Perlmutter, clinical psychologist, who provided a report dated 11 October 2016. [60] Ms Perlmutter states that she saw the offender for 10 sessions between 1 August 2014 and 3 March 2015, on referral from Dr Ginnane on 28 July 2014 and subsequently a referral from Dr Selby on 9 September 2014. Initially the meetings were weekly, but following 3 September 2014, they were on a monthly basis, until a final session on 3 September 2015. One further session was held on 5 October 2016, shortly before the preparation of her report, Ms Perlmutter diagnosed the offender with severe post-traumatic stress disorder and stated that he had also become clinically depressed due to sleep disturbance, loss of energy and motivation, difficulties with self-esteem, depressed mood and suicidal ideation. She noted that he had traumatic dreams which resulted in involuntary aggression to his fiancé during sleep, which caused him and his fiancé significant distress. [61]
15. Ms Perlmutter recorded the offender as having irritability and outbursts of anger, with difficulty concentrating, hypervigilance and exaggerated startled response. Treatment was provided including eye movement desensitisation and re-processing, anger management and relationship counselling with his partner. She observed that the treatment led to him better managing his anger and involuntary violent behaviour during sleep. She also recorded that the offender stated that some of his post-traumatic stress disorder symptoms, especially regarding the intrusive recollections of the bashing incident and the violent dreams, had somewhat reduced as a consequence of the eye movement desensitisation and re-processing. [62] In the final session in 2015, she recorded that the offender reported that the traumatic bashing event felt more distant as a result of the intervention and also that his depression had improved somewhat, as had his appetite, motivation, energy and concentration. She recorded that he had been prescribed Cipramil - an antidepressant, which helped reducing anger and calm him down. [63]
16. The Crown submitted that it should be given limited weight as Ms Perlmutter was not advised of the offender's time in the French Foreign Legion and or any injury he may have sustained during kick boxing. [64] There is no factual foundation to these matters as asserted shortcomings and the submission is rejected. The Crown further submitted that that the offender's condition was also attributable to a past traumatic event involving police. [65] Ms Perlmutter's report was admitted without objection and she was not required for cross examination. [66] Certainly the offender disclosed an earlier incident involving police when he was 16 but it was noted that prior to these events he was coping quite well and happy in his relationships. Overall I accept Ms Perlmutter's opinion.
17. The offender submitted that in light of the decision in R v Daetz; R v Wilson, [67] the Court is not precluded from taking into account, extra-curial punishment by the terms of s 21A of the 1999 Act. Further it was contended that it was appropriate to do so bearing in mind that the offender suffered retribution in the form of physical violence for the commission of the offence [68] and public humiliation and opprobrium when it reaches a proportion that it has some physical or psychological effect on the offender. [69]
18. In R v Daetz; R v Wilson, James J stated:- "[62] I have concluded from this examination of the authorities cited to the Court and especially Allpass, Clampitt-Wotten and Cooney that, while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight."
19. This principle was endorsed in a broader statement by the Court of Criminal Appeal in Silvano v R. [70]
20. Senior Constable Mann gave evidence that he: "… punched the accused three times, aiming for his jaw, hoping to stun him, effect the arrest and prevent any officers from being assaulted …" [71] There is no evidence that he was aware of the assault on Sergeant Turner at this time. [72] Constable Mann's actions occurred at a time when offender was heavily restrained. In my view, there was nothing defensive about Senior Constable Mann's actions as asserted in the COPS entry. [73]
21. Senior Constable Mann was clearly agitated by the offender's conduct having called out to him during the pursuit that he was going to shoot him. I am satisfied that his acts were committed in circumstances of seeking to punish the offender for fleeing police. As deplorable as the offender's actions were on the occasion in question, this was not Senior Constable Mann's role, and the infliction of corporal violence was uncalled for and unnecessary.
22. It is puzzling that other officers in attendance did not see the striking and in Constable Griffin's case, he saw it but did not disclose it in his statement due to what he claimed was an oversight. It is particularly concerning, that after the offender was struck multiple times to the point of being unconscious, the true circumstances of his injury were not disclosed to the paramedics. Instead, alternative explanations were provided which had no factual foundation.
23. In accordance with the authorities discussed earlier, it is appropriate to take into account the injuries sustained by the offender and the circumstances in which they were sustained as a ground of mitigation.

SENTENCE SUBMISSIONS

1. The Crown submitted that in this case with two offences of supply of prohibited drugs and the offence of assault officer in execution of duty causing actual bodily harm, any sentence other that full time imprisonment is inappropriate. [74] In this sense, it was put that the Court should be guided by the maximum penalties for the drug offences, which are 15 years imprisonment or a fine of 2000 penalty units, or both [75] and in relation to the offence under s 60(2) of the 1900 Act, a maximum penalty of 7 years with a standard non-parole period of 3 years.
2. In terms of statistics it was submitted the JIRS [76] statistics reveal that for offences under s 25(1) of the 1985 Act for offenders with no criminal record, multiple charges and a plea of guilty, the proportion receiving fulltime imprisonment was 25% for cocaine and 41% for amphetamines. For the offence under s 60(2) of the 1900 Act it was submitted that 80% received fulltime custody, although the sample size only involved 12 out of 15 cases in the higher courts. [77] It was accepted that caution needs to be used with statistics as they are of limited utility in a particular case and undue weight should not be given to them. [78]
3. The Crown further submitted that a period of six days pre-sentence custody, solely referable to these offences, should be taken into account, pursuant to s 24(a) of the 1999 Act.
4. In considering the question of concurrency, accumulation and totality, the Crown submitted that the sentence should not be served concurrently because the drug offences reveal a specific form of criminality different to that of assaulting Sergeant Turner.
5. The Crown acknowledges the plea of guilty in relation to the drug offences entitles the offender to a "minimal discount of no more than 10%." [79]
6. The offender submitted that in line with the three stage approach referred to by Johnson J in Douar v R [80] the question of whether no penalty other than imprisonment is appropriate is finely balanced and a community service order may be appropriate to fulfil the aims of the sentencing process as mandated by s 3A of the 1999 Act. [81]
7. It was submitted that the standard non-parole period for the offence under s 60(2) of the 1900 Act was not applicable as a guidepost, as the class of offending fell below the middle range of objective seriousness. It contended that a non-custodial sentence was not precluded by reason only of the fact that the offence was one for which there was a standard non-parole period prescribed. [82] It further drew attention that the assault police offence was a Table 1 offence which could have been dealt with in the Local Court, where the standard non-parole scheme did not apply. [83]
8. It noted that Beech-Jones J in Valenti v R [84] said it was open for a sentencing Judge to conclude the s 5 of the 1999 Act threshold was not crossed in circumstances in a case which concerned the supply of 7.68 grams of cocaine, partly for profit and with a prior criminal conviction for drug possession.

ANALYSIS

1. In Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002, Spigelman CJ stated: "[22] Offences involving assault of police officers in the execution of their duty are serious offences requiring a significant element of deterrence in the sentences to be imposed. The community is dependent to a substantial extent upon the courage of police officers for protection of lives, personal security and property. The Courts must support the police in the proper execution of their duties and must be seen to be supporting the police, and their authority in maintaining law and order, by the imposition of appropriate sentences in cases where assaults are committed against police. … [27] These principles apply irrespective of whether the offender is to be sentenced in the Local or District Courts. The jurisdictional maximum of two years imprisonment in the Local Court should not affect the actual level of sentence imposed. Magistrates must not regard the jurisdictional limit as some form of maximum sentence reserved for a worst case. (See R v Doan (2000) 50 NSWLR 115.)" [85]
2. R v Edigarov [86] was a case which bears some analogy with the present facts. Edigarov was a case of an officer who was pushed as he was attempting to handcuff the offender and place him in the back of a paddy wagon. The officer lost his footing, fell to the ground and suffered serious fractures to his lower leg and ankle. A plea of guilty was entered and there was no standard non-parole period in force at the time. In allowing an appeal against a two year suspended sentence and instead imposing a 6 month full time custodial penalty, Wood CJ at CL (with Studdert and Bell JJ agreeing) stated:- "[42] Next, in relation to the 1999 matters, it has also been made abundantly clear by this Court that offences involving the assault of police officers, in the execution of their duty, are to be regarded as serious offences requiring a significant element of deterrence (see R v Stone (1996) 84 A Crim R 218; Myers NSWCCA 13 February 1990, and Nasif NSWCCA 10 March 1995.) [43] While it may be accepted that the actual injury sustained by Constable Ward was unintended, and somewhat freakish, there is always a risk of an officer being injured if he or she is subjected to actual physical force in an attempt to resist arrest. That the precise consequences were unexpected does not operate as an excuse, or as an answer, for such conduct. It may mean that the offender's objective criminality is somewhat less than it would otherwise have been, but nevertheless any such offence remains objectively serious." [87]
3. The JIRS statistics presented by the Crown in Exhibit X related to deemed supply of amphetamines. The more relevant statistics for persons aged between 21 to 25, with no prior convictions, multiple offences, and a plea of guilty for supply of less than a commercial quantity of MDMA, reveal that 19% of offenders receive a sentence of full time imprisonment.
4. In Forti v R, Basten JA referred to the "well-entrenched principle" that unless there are truly exceptional circumstances a fulltime custodial sentence ought to be imposed whenever an offender has been substantially involved in the supply of drugs. [88] His Honour went on to state: "[31] There is another factor to be considered. Despite statements by this Court that substantial involvement in the supply of drugs will usually give rise to a custodial sentence, the JIRS statistics indicate otherwise. Thus, sentences in the higher courts (thus excluding the Local Court) from October 2008 to September 2015 for a principal offence involving the supply of ecstasy (including deemed supply) in an amount less than the commercial quantity, where there were multiple offences, but offenders with no prior history and having pleaded guilty, were as follows. Ninety-three cases were identified of which only 17 (18%) resulted in sentences of imprisonment. Two-thirds involved suspended sentences, community service orders or bonds. (The other 18% were intensive correction orders, periodic detention and home detention.) When the figures are further refined to cover only offenders between the ages of 18 and 20 years, the percentage imprisoned falls to 5%, from a pool of 41 cases. [32] Whilst these statistics do not reveal the range of conduct involved, nor the personal circumstances of the offenders, they are nevertheless troubling in that they demonstrate that the sentence imposed on the applicant is undoubtedly of a kind restricted to a small percentage of offenders. Indeed, and perhaps surprisingly, when the criteria of multiple offences, no prior convictions and guilty pleas are removed, the statistical distribution (not limited to 18-20 year olds) is hardly varied, despite the fact that the pool then contains 740 cases"
5. I also have regard to what was said by the Court of Criminal Appeal in EF v R. [89]

DETERMINATION

1. Notwithstanding the low likelihood of reoffending and the circumstances in which the offender occasioned injury there remains a prevailing need to denounce his conduct, make him accountable for it, ensure adequate punishment and to deter others from engaging in similar conduct. [90] There is also a need to recognise the harm done to Sergeant Turner. [91] I accept that the offender has been specifically deterred. [92] I have regard to his positive progress by way of rehabilitation to date. [93] Each of the offences nevertheless are serious and I am satisfied pursuant to s 5(1) of the 1999 Act that no penalty other than imprisonment is appropriate.
2. On behalf of the offender, it was submitted that I should consider alternatives to full time imprisonment. In particular I have been asked to consider referral of the offender for assessment as to his suitability for intensive correction. [94] This requires consideration first of the likelihood a sentence of no more than two years.
3. In my view, sentence is likely to be less than two years and it falls to consider how any sentence of imprisonment is to be served.
4. In this respect EF v R, makes clear that intensive correction is not precluded as a matter of discretion. [95] Ultimately it depends on an assessment that the person is a suitable person and the formation of an opinion by the Court that it is appropriate in all the circumstances. [96] This again raises for consideration whether such a sentence would meet the purposes of s 3A. Schmidt J in EF v R noted that the conditions of intensive correction orders are directed to various purposes of sentencing including deterrence and rehabilitation, and it is clear that that they also serve as punishment although to a lesser degree than full time imprisonment. [97]
5. In R v Ball, Hall J (with Macfarlan JA agreeing) observed:- "[115] In Tannous Basten JA observed that the service of a sentence by way of Intensive Correction in the community is a more lenient penalty than full-time imprisonment, a fact that was acknowledged by the parties in that case, although there have been differing views expressed as to the degree of leniency involved: see in this respect R v Boughen; R v Cameron [2012] NSWCCA 17 at [111] and Whelan v R [2012] NSWCCA 147 at [120]. [116] Intensive Correction Orders are, of course, a form of imprisonment and have been treated as having a significant punitive effect. However, it is necessary to consider the nature of the offence in question in each case and the relevant circumstances concerning the objective seriousness of the offence in determining whether such an order is appropriate." [98]
6. Having regard to these statements and the purposes of sentencing, I propose to refer the offender for suitability to serve the sentence by way of intensive correction under s 69(1) of the 1999 Act before making a final determination of the sentence to be imposed.

ORDER

1. The offender is directed to report to the office of Community Corrections at Leichhardt within 7 days for assessment of suitability for intensive correction in the community pursuant to s 69(1) of the 1999 Act.

Endnotes

1. Hereinafter the "1985 Act"
2. See R v Lineham [2016] NSWDC 247
3. T 20.8 - .11
4. T 20.3 - .29
5. See T 124.25 - .29
6. Exhibit F, p 2
7. Judgment of 25 August 2016, p 36
8. Exhibit N
9. T 166.12 - .14 and T 173.9 - .15
10. T 197.18 - .21
11. T 200.4 - .13
12. T 202.28 - .40
13. Exhibit Q, Statement of Inspector Amanda Hancock dated 24 July 2016 at [5] - [7]; and Exhibit T
14. Exhibit Q, Statement of Inspector Amanda Hancock dated 24 July 2016 at [10] - [11] and Exhibit T
15. [2016] NSWCA 290 (McColl JA with Macfarlan JA agreeing)
16. T 5.9 - .14 (on Friday, 14 October 2016)
17. T 24.41 - .42 (on Friday, 14 October 2016)
18. Judgment of 25 August 2016, p 24
19. T 51.12 - .13
20. Judgment of 25 August 2016, p 30
21. T 239.45 - 240.11
22. (1981) 147 CLR 383
23. Siganto v R (1998) 194 CLR 656
24. Hereinafter the "1999 Act"
25. R v Lineham [2016] NSWDC 247
26. Offender's Written Submissions, dated 13 October 2016 at 8 incorrectly states the amount as 1.86g
27. [2016] NSWCCA 127 at [57] - [62] (Fagan J)
28. s 29(a) of the 1985 Act
29. See Exhibit Q, Statement of Amanda Hancock dated 24 July 2016 and 8 August 2016
30. Exhibit Q Statement of Amanda Hancock dated 8 August 2016 at [5] - [7]
31. Exhibit G
32. R v JCW (2000) 112 A Crim 466; [2000] NSWCCA 209 (Spigelman CJ with Simpson J agreeing). In JCW, Spigelman CJ referred to R v Reiner (1974) 8 SASR102 at 105 which was endorsed in R v Holyoak (1995) 82 A Crim R 502. In JCW, Spigelman CJ stated that both Reiner and Holyoak continued to represent good law (at [52]).
33. See T 18.18 - .21 (Friday, 14 October 2016)
34. [2010] NSWCCA 103 at [27] - [28] (Hislop J with Allsop P and Grove J agreeing)
35. [2016] NSWCCA 127 at [20] (Basten JA with Rothman J agreeing)
36. See Exhibit G
37. [2004] NSWCCA 135 at [34] (Wood CJ at CL with Spigelman CJ and Simpson J agreeing)
38. Page v R (2008) 49 MVR 407; [2008] NSWCC 26, 410 [19] - [20] (Price J with McClellan CJ at CL and Hall J agreeing)
39. Exhibit A
40. [1984] 2 NSWLR 441, 446 - 447 (Street CJ with Glass JA and Yeldham J agreeing); and R v Cheikh; R v Hoete [2004] NSWCCA 448 at [50] (Giles JA)
41. Pre-sentence Report dated 13 October 2016, p 2
42. T 24.24 - .26 (on Friday, 14 October 2016)
43. Pre-sentence Report dated 13 October 2016, p 2 and T 20.31 - .33 (on Friday, 14 October 2016)
44. Exhibit 12, Report of Ms Perlmutter dated 11 October 2016, p 2
45. Exhibit 12, Report of Ms Perlmutter dated 11 October 2016, p 5
46. T 27.16 - 20 (on Friday, 14 October 2016)
47. T 257.36 - 258.10 and Exhibit 11
48. T 258.16 and the various medical reports tendered as Exhibit 12
49. T 258.25 - .42
50. T 23.4 - .9 (on Friday, 14 October 2016)
51. T 23.48 - 24.14 (on Friday, 14 October 2016)
52. T 100.29 - .31
53. T 101.8 - .13: 'Mixed Martial Arts'
54. T 101.3 - .6
55. T 139.23 - 140.12
56. T 166.12 - .14 and T 173.9 - .15
57. Exhibit 12, Report of Dr Harry Stern, dated 26 May 2014
58. Exhibit 12, Report of Dr Harry Stern, dated 26 May 2014
59. Exhibit 12, Report of Dr Gorbatov, dated 5 June 2014
60. Exhibit 12, Report of Ms Perlmutter, dated 11 October 2016
61. Exhibit 12, Report of Ms Perlmutter, dated 11 October 2016, p 4
62. Exhibit 12, Report of Ms Perlmutter, dated 11 October 2016, pp 4 - 5
63. Exhibit 12, Report of Ms Perlmutter, dated 11 October 2016, p 5
64. T 21.35 - .40 (on Friday, 14 October 2016)
65. T 20.49 - 21.4 (on Friday, 14 October 2016)
66. T 4.21 - .24 (on Friday, 14 October 2016)
67. 139 A Crim 398; [2003] NSWCCA 216
68. 139 A Crim 398; [2003] NSWCCA 216 at [62] - [66] (James J with Tobias JA and Hulme J agreeing)
69. Kenny v R [2010] NSWCCA 6 at [49] (Howie J with Johnson J agreeing) and R v Allpass (1993) 72 A Crim 561, 566
70. (2008) 184 A Crim R 593; [2008] NSWCCA 118 at [26] - [30] (James J with Hislop and Hoeben JJ agreeing)
71. T 104.49 - 105.1
72. T 106.12 - .14
73. Exhibit N
74. Crown's Written Submissions, dated 13 October 2016 at [20]
75. ss 32(1)(c) and 32(1)(g) of the 1985 Act
76. Judicial Information Research System
77. Crown's Written Submissions, dated 13 October 2016 at [24]
78. Crown's Written Submissions, dated 13 October 2016 at [25]
79. Crown's Written Submissions, dated 13 October 2016 at [7]
80. [2005] NSWCCA 455 at [70] - [72] (Johnson J with McClellan CJ at CL and Adams J agreeing)
81. Offender's Written Submissions, dated 13 October 2016 at [6]
82. s 54B of the 1999 Act and R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [114] - [116] (Spigelman CJ, Wood CJ at CL and Simpson J)
83. Bonwick v R [2010] NSWCCA 177 at [44] - [48] (Davies J with McClellan CJ at CL with James J agreeing)
84. [2016] NSWCCA 17 at [36] (Beech-Jones J with Hoeben CJ at CL with Davies J agreeing)
85. [2002] NSWCCA 515 (Spigelman CJ with Wood CJ at CL, Grove. Sully and James JJ agreeing). See also: R v Barber [2004] NSWCCA 153 at [17] (Dunford J with Adams and Howie JJ agreeing); and R v Jouayde [2003] NSWCCA 240 at [45] (Kirby J with Meagher JA and Sully J agreeing)
86. R v Edigarov (2002) 125 A Crim R 551; [2001] NSWCCA 436
87. (2002) 125 A Crim R 551; [2001] NSWCCA 436 at [42] - [43] (Wood CJ at CL with Studdert and Bell JJ agreeing)
88. [2016] NSWCCA 127 at [19] (Basten JA with Rothman J agreeing)
89. [2015] NSWCCA 36
90. s 3A of the 1999 Act
91. s 3A(g) of the 1999 Act
92. s 3A(b) of the 1999 Act
93. s 3A(d) of the 1999 Act
94. s 69(1) of the 1999 Act
95. [2015] NSWCCA 36 at [12] (Simpson J) and at [42] - [48] (Schmidt J)
96. ss 67(1)(b) and (c) of the 1999 Act
97. [2015] NSWCCA 36 at [49] - [52] (Schmidt J)
98. [2013] NSWCCA 126 at [115] - [116] (Hall J with Macfarlan JA agreeing); see also Campbell J at [193] and [198] 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: 21 November 2016