Mr TDF Hughes (Counsel for the offender)
File Number(s): 2018/137180
[2]
Judgment
A 21 year old man with a good employment record and no criminal history appears in court here today with the support of his parents facing a very lengthy gaol term for his involvement in a number of matters which occurred in April 2018.
The circumstances lead to Mr Hughes of counsel for the offender conceding that the threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 has been surpassed and that a term of imprisonment is required. The difficult debate which has occurred revolves around the question of whether that term of imprisonment should be served by way of full time custody or otherwise.
On 27 April 2018 a man, who was at least a drug user, allegedly owed $5,000 to another man, Tate Phelan. He got on the L94 bus from Circular Quay to La Perouse. Tate Phelan and Luke Phillips got on the bus at Maroubra Junction. The drug user, who is described as the victim, was immediately scared. They went over and sat down next to him and said, "You've had plenty of time. You've been dodging us, I've given you more than enough chances, I want my 5K", meaning his $5,000, "Where is it?" The victim was really scared and he apologised and Phelan said, "You're trying to get off with this". They all got off the bus at Malabar and Phelan said, "Look, you're going to find a way to get the money right now or your life is on the line. We're going to stay with you until you get it, we're not leaving till we get our five grand. I'll shoot you right here and push you into the bush".
The victim ended up calling his friend, Mr Provost, and begging him to lend him $5,000, and Phelan gave the address of where they were so that Mr Provost could deliver the money to him.
Phelan then called this offender, Reece Macey, and about 15 minutes later the victim saw a van with what looked like HPS Electrical written on the side of it, Mr Macey's work van. Phelan shook hands with the driver; they consumed some cocaine in the passenger side of the van, and took turns to supervise the victim.
Phelan became agitated after taking the cocaine and demanded to know where Mr Provost was with the money. Phelan spoke to Mr Provost and said, "You'd better hurry up, this is your last chance to see him alive. Don't think about calling the police 'cos if I see the cops I'll shoot him, and I don't care if I die".
The offender's active involvement then commences with him opening the back door of his van and the victim got in. Phelan got in the passenger side and the offender drove off.
Phelan's phone was running out so they stopped while he went into a house to charge the phone, Phelan got angry and slapped the victim on the left side of his face and he then called another one of his friends who arrived in a car. The victim said he believes that was Harry Kasirini. The offender said to the victim, "I'm getting tired of this, stop fucking us around, just give us the money and we won't bother you again. If we see you in the street, we'll just smile and say, 'Hi,' but if you don't get the money this is it." The physical violence involved Kasirini then telling him to sit down, and he told the victim, "No one fucks around with me and my boys." He told him to stand up and take his clothes off. He punched the victim in the face causing him to fall onto his back and graze his elbow. That injury is the actual bodily harm involved in the charges to which I will refer. Kasirini then kicked the victim around his stomach and side before making him put his clothes back on.
Macey and Phelan then walked the victim a small distance into the bushes and Macey was exhibiting frustration saying to the victim, "This is not looking promising, you haven't come up with any money or any ideas that guarantee you'll give it to us, you better think of something soon." Kasirini said that Macey would drop him home but they expected five grand by tomorrow and the victim had to show them where he lived and Macey would go into his house so they knew it was his house and if there was any alcohol there they would take it as compensation.
The victim got back into the passenger's seat and Macey drove him home and said to him that he was really lucky he got away with it today but tomorrow he would not get away with it. Macey walked into the victim's house and they went through into the bedroom and Macey took some Vodka and Coca Cola and a packet of biscuits back to his car and left.
Mr Macey was arrested on 1 May. In his wallet there were two bags containing white powder which contained .77 grams of cocaine as well $1,518. He made a number of admissions in an interview. He said that he went to meet Phelan to pay him money for drugs, that is, $750 for cocaine that Phelan had supplied him, and he knew nothing of what had happened to the victim before he arrived. Phelan and Phillips were present, and Phillips was clearly not happy about being there and left. He knew the victim was not there of his own freewill, after asking. He tried to leave but Phelan would not let him. He didn't want to do it but Phelan would not let him leave, but he never felt threatened by Phelan. Phillips just left and he tried to leave as well but Phelan said, "No, I need one person here." He then volunteered that he supplies cocaine on an ongoing basis and makes $1,200 a week and that he had another four satchels of cocaine and $7,425 in a safe. These items were seized and analysed as 3.85 grams of cocaine. He paid $250 each for the bags and the cash in his wallet was from selling drugs and the cash in the safe was some from electrical work, and some from selling drugs.
He has, as I have said, no criminal history and was in custody for 16 days after his arrest before being released on bail. The co-offender, Phillips, pleaded guilty to one count under s 99(2) of the Crimes Act 1900 of demanding property by force and was sentenced to a two year Community Corrections Order in the Local Court; Phelan is to stand trial for a number of matters in October this year.
The offences to which he has pleaded guilty are:
1. Demand property by force with intent to steal under s 99(2) of the Crimes Act 1900 carrying a maximum of 14 years imprisonment.
2. Take and detain under s 86(3) of the Crimes Act 1900 which carries a maximum of 25 years imprisonment.
3. Supply of 3.85 grams of cocaine under s 25(1) of the Drug Misuse and Trafficking Act 1985, which carries 15 years imprisonment
4. Break and enter charge involving larceny, being Coca Cola and Vodka, carrying a maximum of 14 years.
There are no standard non-parole periods for any of those offences.
There is a matter to be dealt with on a Form 1, an offence under s 190C(3) of the Crimes Act 1900 of dealing with the proceeds of crime being the $8,943. As the Chief Justice said in the guideline judgment on Form 1 matters, this involves imposing a longer sentence that would have been imposed if the primary offence had stood alone, bearing in mind the need to give greater weight to two elements, namely, personal deterrence and the community's entitlement to extract retribution for serious offences.
Evidence was given today by the offender and his father and it was consistent with the contents of a Sentence Assessment Report which accurately summarises the situation as I see it, namely, that he resides with his family who are hard working parents and have a pro-social influence on him. He is in full time employment as an electrical apprentice. He acknowledged that, although he had been under the influence of cocaine at the time of the offences, he denied that this impaired his decision making and he did not attribute his offending behaviour to the influence of illicit substances. I accept that he was initially unaware of his co-offenders' intentions and continued his involvement in the offences out of a perceived obligation to them. He said today that he has been addicted to cocaine for about two years and was selling it for about six months before this offence and he owed Tate Phelan about $700 at the time of the offences. He was using up to 2 to 3 grams, it cost him $750 a week although he was only earning $700 a week as an apprentice and he was clearly subsidising or funding his cocaine habit with the proceeds of his supply, which he voluntarily confessed to the police. He was assessed as being a medium to low risk of re‑offending and suitable for community service work, however I am told that community service work is not available due to a blanket policy of Community Corrections that offences involving violence do not fit their regime, notwithstanding any individual consideration of the involvement of the offender.
I accept that his evidence was given in a completely frank and forthright and honest way. He candidly conceded that he did not have a satisfactory answer to the Crown's legitimate question, namely if he owed $700 to Tate why did not he just pay it out of the $7,000 that he had in the safe at home. He acknowledged the distress that his offending had caused to his family and to the victim, and he expressed his disgust, regret and remorse.
He is supported by his father's evidence both in an affidavit and in his evidence before me today. He said that his son has an amazing work ethic and attitude and has been particularly supportive of his younger brother, who has a number of difficulties, including a Supernumerary Ring 1, including issues with chromosome 3 and 17, autism, impaired hearing and Gilbert's syndrome. Due to his conditions his brother does not function, think or interact as a normal 19 year old and does not interact with his own age group. The offender plays a major role in his social activities by taking him to the movies, to dinner and dancing, and he is described as his best friend, mentor and confidant, and goes out of his way to make him feel good about himself and feel normal, and in a number of ways does things to completely lift the mood of his disabled brother.
His father is an officer in the Royal Australian Navy and has been for 28 years and his mother is in full-time employment as well. His father describes the honours and awards that he has received, and his evidence before me today was also given in a completely frank and honest manner in which he described the devastating impact of his son's offending upon the family. Confronting his son at the Maroubra Police Station and seeing him in custody for a period was a very distressing episode to all concerned, not least of which the offender himself.
Mr and Mrs Macey will continue to support their son and are convinced that he is a good man who has always been educated that drugs destroy lives and families. They are, as is often the case, parents who were completely unaware that their son was a habitual user of drugs for this period of some two years.
The offender has a long term wish to join the special-forces and that is obviously one course which will no longer be open to him in light of the expected outcome of these proceedings today. His dream of serving his country in combat will never be realised and I accept that he is deeply ashamed and sincerely regrets his conduct. He seems to be supported by his long term employer, the principal of HPS Electrical Contracting, who knows of the charges and describes him as a fine young man who continually works at improving himself, has a natural ability to teach and is extremely generous with his time. He could not imagine running his business without him. He says he is a selfless, charismatic and genuine young man. He was stunned when he heard of his arrest. He said that was not the Reece that he knew.
The offender has engaged the services of a psychologist, Daniel Martin, on a number of occasions since November 2018. He has been using cognitive behaviour therapy techniques to improve his management of mood and he reports he is improving and benefitting from these sessions. He has clearly been abstinent from drugs and urine screening has confirmed that abstinence.
His stringent bail conditions since his release have included a 9pm to 5am curfew.
The pleas of guilty were entered at an early opportunity and it is common ground that a 25% discount on any term of imprisonment for the utilitarian value of the plea should be allowed in this case.
An issue arose as to whether a further discount under s 23 should be allowed in relation to the s 86 and s 99 counts if it could be said that the offender had assisted within the meaning of s 23 of the Crimes (Sentencing Procedure) Act 1999. After an adjournment and taking instructions, Mr Hughes for the offender informed the Court that although the offender would attend Court pursuant to a subpoena and give evidence in accordance with the admissions that he made in the recorded interview and in Court today, he was not, for what were described as family reasons, willing to offer an undertaking to give evidence. In those circumstances the Crown correctly submits that there has been no assistance within the meaning of s 23 and so no further discount should be applied for the first two counts or the third count, being the break and enter.
As to the supply count this was voluntarily disclosed by the offender and in my view falls comfortably within the type of cases contemplated by the Chief Justice in R v Ellis (1986) 6 NSWLR 603, s 23 and the authorities which have considered it. It is appropriate to indicate a further discount of 25% on any term of imprisonment in relation to the the supply count, making a total of 50% discount in relation to that matter.
The Crown's written submissions assert that the objective seriousness in relation to the demands of the kidnapping charges are at least midrange. As the Courts have recently confirmed in cases such as McDowall v R [2019] NSWCCA 29, it is unnecessary for the Court to characterise an offence in some notional scale, but it is often of assistance. It is more important is to identify and attribute weight to a number of factors relevant to the seriousness of an offence under s 86 of the Crimes Act 1900. As far back as 1979, Roden J said in R v Collett (unreported, Court of Criminal Appeal, NSW, Roden J, 7 June 1979), that those factors included the duration of the detention, the extent of the fear or terror occasioned, the manner of treatment, and what is demanded of the victim by the offender, the purpose of the detention and the extent, if any, to which the third parties were subjected to an ordeal or anguish.
In R v Newell [2004] NSWCCA 183, Howie J said:
"The gravamen of the offence for the purpose of sentencing is the unlawful detaining of a person. As his Honour noted, there are a number of factors that can be relevant in making an assessment of the seriousness of an offence under s 86 including the period of the detention, the circumstances of the detention, the person being detained and the purpose of the detention. The last factor, the nature of the advantage that the offender sought to obtain, is not, in my view, conclusive as to the seriousness of the offence."
The Crown's written submissions assert that the period of detention was approximately 3 and a half hours, but there is no evidence of that in the agreed facts. The facts go no further than what I have indicated that the detention was for some unspecified time during the course of one day.
The offender's role can be summarised as follows; he arrived after the initial detention and threats had been made, and he then played an active role. He was present when the victim was assaulted and he used his van to take the victim away, detain him and was the last of the co‑offenders to speak with him, when he expressed a warning to him. The purpose of the detention was essentially to demand $5,000 to allow the victim to leave without harm.
The Crown concedes that the objective seriousness of the supply charge is in the low range and the break and enter was obviously very low in the range, given the fact that the break‑in was only a constructive break‑in. There was no violence and there was a very limited number of the items taken.
The difficult question which arises, which flows from the proposition put by the Crown in at [7] of the submissions, namely, that non‑custodial sentences will generally not be appropriate for offences under s 86 Crimes Act 1900, particularly for the aggravated form of the offence, referring to R v Anforth [2003] NSWCCA 222, R v Speechley (2012) 221 A Crim R 175, Bott v R [2012] NSWCCA 191 and R v Ball [2013] NSWCCA 126. It is necessary for me to deal briefly with those cases and I will so for the purpose of illustrating why, in my view, the conclusion reached by Campbell J, admittedly in d dissent, in R v Ball [2013] NSWCCA 126, namely, that there is no principle to the effect that a term of imprisonment of about two years is manifestly inadequate for s 96(2) offence, is correct.
In R v Anforth [2003] NSWCCA 222, a two year, s 12 suspended sentence was increased on a successful Crown appeal to a two year sentence with a ten month non‑parole period. It involved a group including the offender, armed with a knife and a double‑barrelled shotgun. The gun was pointed at the victim's head. He said, "I've been following you around for weeks. I hope you had a nice life. I should just blow you away now". The victim was in fear of his life with a demand of $10,000 from him. He was placed in handcuffs and handcuffed together with another victim. All three of the offenders then travelled with their handcuffed victims from Karuah to Medowie. They enlisted a man with an ankle grinder to remove the handcuffs which cause burns to the victim's arms and then the offender was guarding them with a baseball bat. The offender had a record of drug and firearm offences. Simpson J said that the primary judge had given excessive weight to personal circumstances and inadequate weight to the seriousness of the offences and said at [48],
"In my opinion the Crown has established that, in a number of respects, a wrong approach was taken to the sentencing of the respondent. Even without the specific errors identified, in my opinion, non-custodial sentences, for offences as serious as these, were manifestly inadequate. The respondent's subjective case was not so overwhelming as to displace the need to demonstrate the community's abhorrence of offences of the violent and sadistic nature of these."
That was clearly not an expression of general principle in the same manner, as her Honour subsequently pointed out in cases such as Robertson v R [2017] NSWCCA 205 that there is no general principle that drug dealing should involve a term of full-time custody if there is evidence of substantial supply, a long-time misconception which has now been corrected in Parente v R [2017] NSWCCA 284.
In Bott v R [2012] NSWCCA 191 a two year and six month sentence with a non-parole period of 12 months was imposed by the primary judge and upheld by Court of Criminal Appeal. This involved an attempt to claim the repayment of several hundred thousand dollars of loan funds and the offender said in the presence of the victim and a co-offender, "What do we do in our world if someone owes us money and doesn't pay?" and the offender said, "We get our money back, we pick them up". There was then some physical violence inflicted on the victim to get him into a car and the victim was screaming and struggling against the hold of the offender. It had been suggested that the offender had told the victim, "Do you know who you're dealing with? This is bikies' money." Price J acknowledged that it was important to emphasise that a civil society cannot tolerate standover merchants who seek to recover money or obtain information from others by fear or violence and the offender's lack of insight into the seriousness of his conduct and his understanding that intimidation is a common form of debt collection emphasised the importance of both specific and general deterrence. That is not this case.
In R v Speechley (2012) 221 A Crim R 175 the primary judge imposed a one year and 11 months suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999. On appeal by the Crown that was ordered to be served by full-time custody with a 12 month non-parole period. The offender believed that the victim had sexually assaulted her friend and she travelled with that friend and a male with a loaded rifle hidden in the boot of the vehicle. The male co-offender approached the victim threatening him with the rifle. He struck the victim on the head and the rifle discharged. The offender was told to get a knife out of the boot, asking, "Should we cut his fingers off now?" The offender retrieved the knife and handed it to the co-offender. The victim was struggling to escape and the co-offender discharged the weapon into the air and the victim managed to break free and escape. There was evidence at the hearing of the appeal that since she had been sentenced she had demonstrated less than enthusiastic efforts to comply with the conditions of a bond and had not taken any significant steps towards rehabilitation.
Johnson J set out the history of the development of the law of kidnapping and noted that the breadth of conduct capable of falling under s 86 of the Crimes Act 1900 was very wide, so that reference to statistics alone would not be of much assistance. The gravamen of the offence as I have indicated is the unlawful detaining of a person. His Honour reiterated at [82] and [83], the importance of assessing objective gravity in the sentencing function and I will not burden these remarks, at this late stage in the afternoon with further quotations from his Honour's lengthy judgment. His Honour did refer to Davis v R [2006] NSWCCA 392; being a case of exceptional circumstances involving misguided motives and offending by a person with no prior convictions where cultural mores played a part.
In R v Ball [2013] NSWCCA 126 a two year intensive corrections order by the sentencing judge was overturned by the Court of Criminal Appeal and a two year 11 months sentence with one year six months non-parole period was imposed The offender had a significant record. There were matters to be taken into account on a Form 1. The offending had involved four stages as set out in the judgment of Hall J and can be summarised as follows, the victim following a night out with friends was unable to start her car due to a flat battery. The victim sought help from friends and patrons at a nearby restaurant the victim contacted the offender, with whom she had recently ended a relationship for assistance. Before receiving a response from the offender the victim accepted a ride home from a friend. The offender eventually responded to the victim's message telling the victim he would bring jumper cables. The victim responded that she was being driven home by a friend. After arriving home the victim received a call from the offender saying he would pick her up. Shortly thereafter the offender arrived at the victim's home with jumper cables to fix the car. The victim got in the car which was being driven by an unidentified person and they returned to the carpark where the victim had left her car. The car was jumpstarted, the unidentified driver left.
Whilst the victim was driving, the offender, who was in the passenger seat, struck the victim to the side of the face. The victim pulled over and told the offender to get out of her car. The offender refused striking the victim again and pushed her face against the driver's side window. The victim escaped the car and called "000". The offender attempted to reverse the vehicle over the victim before getting out of the vehicle and violently and viciously assaulting her. The victim at one point attempted to unsuccessfully lock herself in the car. The offender dragged her into the vehicle and drove away at high speeds stopping outside a unit complex, where the victim was able to get out of the vehicle. The offender drove the vehicle into the underground carpark. The victim called "000". The offender returned, screaming at the victim and snatched her phone and smashing it into pieces and attempted to take the victim into the unit complex. Police arrived at about 4:15am and arrested the offender and the victim was conveyed to Westmead Hospital for treatment.
This case was clearly very serious episode of violence and significant injuries occasioned to the victim. His Honour said the objective seriousness of the detention was increased by the fact that after forcibly dragging and placing the victim in a car she was trapped in the vehicle and driven at high speed away from the scene. Her victim's impact statement described the effect of the offending on her. There is no victim's impact statement in the present case. As I have said, Campbell J dissented, but conducted a lengthy review of the authorities leading to the concluding statement at [278], to which I referred which said,
What these, albeit isolated, examples demonstrate, in contradiction of the argument advanced on behalf of the Crown, is that there is no principle to the effect that a term of imprisonment of about two years is manifestly inadequate for a s.86(2) offence. And it is of the essence of a conclusion of manifest inadequacy that the appellate court decides "that there must have been some misapplication of principle even though where and how is not apparent from the statement of reasons" (Wong v The Queen [2001] HCA 64; 207 CLR 584 at 605 [58]. (Emphasis added).
In Barlow v The Queen [2008] NSWCCA 96, the offender went to a cousin's caravan in company with a man in the early hours of the morning. They assaulted and terrorised the victim for two hours. They punched him, hit him, dragged him back on occasions to prevent him from escaping, tortured him, struck him and poked him with kitchen tongs and threatened to kill him. He suffered a soft tissue injury to the wrist, lacerations to the knee requiring sutures, other lacerations and a suspected head injury. The offender said she committed the offence as an act of revenge against him, who had sexually assaulted her on an earlier occasion. She had no prior convictions and the Court said that her conduct was the antithesis of what was required in a society based on rule of law and should be denounced in the strongest terms. An appeal was dismissed against the imposition of a 15 month sentence with a five month non-parole period.
Hall J set out conveniently a two or three stage process for imposition of a sentence under R v Zamagias [2002] NSWCCA 17, which I have read, and note in relation to suspended sentences that they must be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender.
The statistics, as I have indicated are of very limited assistance and show a very small percentage of s 86(3) matters dealt with by ICO, being 3% of a range of 29 cases, or 21% under the old suspended sentences regime.
In R v Nichols [2016] NSWDC 389 Norrish DCJ imposed, after a discount of 45%, a sentence of one year and 11 months, presumably to be served by way of intensive corrections order. The facts were quite shocking and involved a 17 year old victim who was punched in the side of his face, strapped up with duct tape, a rag was stuffed inside his mouth and he was interrogated. He was then assaulted with a baseball bat. As his Honour pointed out, one needs to bear in mind what the Chief Judge said in R v Blackman; Walters [2001] NSWCCA 121, that one needs to consider all aspects of the interests of society and the offender and the rehabilitation of the offender. As the Chief Justice said in Yardley v Betts (1979) 22 SASR 108, the protection of the community is also contributed to by the successful rehabilitation of offenders and this aspect of sentencing should not be lost sight of.
I bear in mind, as the Court said in KR v R [2012] NSWCCA 32 that the particular culpability of the offender in a joint criminal enterprise here must be taken into account and I have identified the active involvement of this offender.
In MO v The Queen [2014] NSWCCA 11 a term of full time custody imposed by the primary judge was quashed by the Court of Criminal Appeal and a one year good behaviour bond imposed. The offender was part of a group who assaulted the victim causing fractures of a nose and facial bruising. The offender had no criminal record and had a five month old baby when sentenced. She had no history of violence, no premeditation and a limited involvement in the overall scheme.
In R v Davis [2004] NSWCCA 310 a sentence of four years with a nine month non-parole period was overturned and in lieu thereof a good behaviour bond was ordered, noting that the offender had already served nine months. The offending involved three people taking a female to a car, obtaining her belongings from the house, taking her back to Armidale. There was a struggle, which involved a punch to her face and knee in her stomach. The offender was acting out of a desire to have the victim return home and behave, as expected by her Pacific Islander family. The offender had had no prior convictions and the trial judge had to balance the genuine but misguided motive of the offenders against the objective seriousness of the offence and the need for general deterrence.
The Crown acknowledges that there are no aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 which are not already elements of the offence.
A number of mitigating factors must be taken into account. They have already been mentioned, namely the pleas of guilty, the expressions of remorse, the prospects of rehabilitation are good, as a person of good character he is unlikely to reoffend.
Mr Hughes has taken me in detail to a number of sources indicating the current approach to the imposition of intensive correction orders, culminating in the relatively recent judgment of Harrison J in R v Pullen [2018] NSWCCA 264. One starts with what was said by the Attorney General in the second reading speech on the amending legislation, pointing out that community supervision is better at reducing reoffending than leaving an offender in a community with no supervision, and that community safety is not just about incarceration. Imprisonment under two years is commonly not effective at bringing about medium to long term behaviour change that reduces reoffending. Community safety is of course the paramount consideration to be borne in mind when deciding whether an intensive corrections order should be imposed (NSW Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017).
I have regard to numerous statements of principles as to the sentencing of young offenders, as this person was, in Baxter, R v Smith [1964] Crim L R 70, R v Govinden (1999) 106 A Crim R 314 and R v Wilcox (unreported, Supreme Court, NSW, 15 August 1979) .
In particular in a general sense the seminal passage from the Mahoney ACJ in R v Lattouf (unreported, Court of Criminal Appeal, NSW, No 60433 of 1996, 12 December 1996) is relevant , where his Honour said:
"It is to be recognised that imprisonment may convert a person who will not be a persistent criminal into one who is. Particularly is this so where the person to be sentenced is a first offender of a comparatively young age whose family circumstances are such that he may, with assistance, not become a criminal. It would be wrong to the individual and costly to the community not to attempt the rehabilitation of such a person:
Or as Mr Hughes puts it, being inducted into the"university of crime.".
I have been taken to research in relation to the effectiveness of intensive corrections orders showing a measurable reduction in reoffending by those who received ICOs compared to prison sentences of up to 24 months, leading to the conclusion that supervision combined with rehabilitation can have a significant and favourable impact on reoffending rights.
As Harrison J said in R v Pullen [2018] NSWCCA 264,
The prioritisation of the consideration of community safety as the "paramount consideration" necessarily means, however, that other considerations, including those enunciated in s 3A of the Act, become subordinate.
This is likely to occur most frequently in the case of a young offender with limited or no criminal history and excellent prospects of rehabilitation. In every case, however, a balance must be struck and appropriate weight must be given to all relevant factors which must be taken into account in arriving at the sentence, by way of the instinctive synthesis discussed in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51].
As in the case of R v Pullen [2018] NSWCCA 264, this offender here has maintained stable employment, undergone counselling and abstained from consuming illicit substances. His prospects of rehabilitation in my view are excellent and his chances of reoffending are extremely low given the family's support that he has.
As did Harrison J, I accept that the imposition of an ICO represents some degree of leniency, but it is a term of imprisonment and I am satisfied that the imposition of an ICO in this case still involves a substantial degree of punishment, particularly having regard to the conditions and the length of the ICO which I intend to impose. I accept that the emphasis on general and specific deterrence and denunciation may militate against the imposition of an ICO, but, as his Honour said in R v Pullen [2018] NSWCCA 264, those considerations must be tempered by the paramount consideration of community safety. This young man provides no risk to the community in my view on the evidence that I have seen.
The orders that I will make are:
1. The offender is convicted of each offence.
2. The indicative sentences are:
1. 002 - 9 months;
2. 003, taking into account the Form 1 offence (005) - 18 months;
3. 006 - 12 months;
4. 008 - 9 months.
1. There being no other appropriate penalty, I impose an aggregate sentence of imprisonment of 2 years 5 months.
2. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the court directs the sentence to be served by way of an intensive corrections order commencing today.
3. The offender is to report to the OIC at the City office of CCS by 5pm, Friday 17 May 2019.
4. The conditions to apply during the term of the order are as follows:
STANDARD CONDITIONS
1. You must not commit any offence.
2. The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance.
ADDITIONAL CONDITIONS
1. Adhere to a curfew for a period of 1 year: The offender is to remain at [REDACTED FOR PUBLICATION] between the hours of 9pm and 5am.
2. Undertake treatment as recommended in the report of psychologist Daniel Martin, dated 7 May 2019.
3. Abstain from the consumption of illicit drugs.
1. Failure to comply with the conditions of this order may result in further sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order.
2. The offender is to attend the Registry for finalisation of the intensive corrections order.
CONFISCATION ORDERS
1. I make a confiscation order pursuant to the Short Minute of Consent dated 10 May 2019.
Note - These extempore remarks were revised without access to the court file.
[3]
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: 14 November 2019