R v Sampathapillai [2021] NSWDC 712 | Case summary | Zoe

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R v Sampathapillai [2021] NSWDC 712 | Case summary | Zoe

Police discovered the secret compartment in the glove box was activated by a hidden switch readily accessible to the driver. A further secret compartment in the spare tyre well, activated by the rear demister switch and another compartment in the rear of the back seat.
The offender gave evidence at trial that the Huawei phone did not belong to him, that it was used by Ohmid and Narvid. He said he occasionally used the phone through his work with Ohmid as a security guard accompanying strippers to jobs. He also, in evidence that Ohmid left that Huawei phone in his car by accident on 27 April 2019.
CCTV footage in the elevator at the Meriton apartments on 27 April 2019 showed the offender in possession of and using both the Apple and the Huawei phones.
On 20 April 2020 the Huawei phone was unlocked by New South Wales Police and forensically examined, and the examination revealed the offender was a participant on a number of conversations on a WhatsApp group which had in excess of 100 participants.
Members of the group would post a drug commodity and location and then a supplier would personally contact that member and arrange the supply of prohibited drugs.
WhatsApp and SMS messages located on his phone revealed that he was engaged in the regular supply of "bags" of cocaine. A bag of cocaine is slang for between .8 grams and 1 gram of cocaine and sells for between $250-$300
As for count 1, the ongoing supply of prohibited drugs, between 6 April and 25 April 2019 the offender supplied cocaine on eight separate occasions being a total of 8 grams of cocaine in exchange for $2,350. The supplies were as follows: 1. On 6 April, he supplied an unknown male with 1 gram for $250, meeting that male at the Coles Loading Dock at Danks Street, Waterloo, to supply the cocaine. 2. On 13 April he agreed to supply a buyer with 1 gram of cocaine for $300. He met the buyer at the Sheraton on the Park Hotel, driving his silver BMW, and supplied the cocaine. 3. On the same day at about 11.30pm, the same buyer placed a second order for a further gram of cocaine. Just after midnight the offender met the buyer and supplied the cocaine. The buyer provided a statement to Police and gave evidence at the trial confirming the supply. 4. On 20 April 2019, at about 6.35pm he agreed to supply a male with 1 gram. He met him at Bourke Street, Surry Hills and supplied the cocaine for $300. That buyer also provided a statement to police and gave evidence at the trial confirming the supply. 5. On 21 April 2019 at about 3.50pm a male known as Michael sent a request to the WhatsApp group seeking a bag of cocaine. The offender responded and met Michael at the Star Casino at Pyrmont, agreeing on a price of $300. The offender met him at the Star City Casino, having driven there in his silver BMW, and supplied him with a gram of cocaine for $300. 6. Later the same day a woman placed a request for a bag of cocaine in the WhatsApp group. They agreed to meet at the Coogee Bay Hotel. He agreed to give her a small line of cocaine to try first. He arrived in his silver BMW and supplied the woman with 1 gram of cocaine in exchange for $300. She provided a statement to Police and gave evidence at the trial confirming the supply. 7. On 24 April he agreed to meet a male buyer at the Pyrmont Bay Hotel and supplied him with a gram of cocaine for $30. The man provided a statement to the Police and gave evidence at the trial confirming the supply. 8. On 25 April an associate of the previous buyer contacted the offender and arranged for a delivery of a second bag of cocaine to be delivered to the Pyrmont Bridge Hotel. The offender agreed but the address was changed. The offender met the male at 102 Miller Street, Pyrmont, where he supplied one bag of cocaine for $300.
As to bank records, there is some dispute about the evidence, which will be dealt with on a confiscation application at the conclusion of these sentence proceedings. In short, the Crown asserts that between 9 April and 25 April five cash deposits were made into the offender's bank account totalling $7,725. The Crown case at trial was that these deposits were the proceeds of the offender's involvement in drug supply.
He was arrested on 1 May 2020 and cautioned by police and offered the opportunity to participate in a further interview, which he declined.
He has no criminal record.
The evidence for the offender includes a letter from Natalie Howard who has known offender for two years, and has been in a personal relationship with for the last five months, so she is now classified as his partner.
She has two daughters from a previous relationship. She says that, since finding out about the charges against him, he has been very remorseful for the mistake that he has made and has definitely learnt from this and he takes full responsibility for his actions, She describes him regretting his actions on a daily basis. She says he has turned to his faith and he attends church every Sunday, and has a good relationship with his Pastor. She says he has a good job and want to further his career. He focuses on his family and himself and her girls and self-development. She describes him as the primary caretaker for his mother's daily routine, and describes him as honest, reliable and loving and humble.
The bundle of evidence provided by the offender in advance of the sentence proceedings included a document dated 24 July 2021, described as a letter of apology from the offender. However, when the sentence proceedings commenced on 30 July, Mr Fokkes of counsel for the offender tendered all of the bundle of documents which had been provided with the exception of the letter of apology from the offender.
Ultimately, after the offender gave evidence and was cross-examined, the Crown tendered that letter of apology and Mr Fokkes said that he had no formal basis for objecting to the tender and it became exhibit 2. In that letter the offender says, "These are my darkest days and I'm writing to apologise for my choices and actions that got me into this situation." He said he was in a delusional state after his previous partner decided to leave him without any reason.
He said in the letter, "I take responsibility for these actions and want to apologise to the Court and community for this. I don't wish to excuse my conduct but at least provide some explanation to your Honour" about my mental state at the time and where I am now".
He describes his unblemished previous background and his career to date. He apologises to his family and he says that he has had time to reflect on his actions and he is truly remorseful for what he did. He lists a number of changes he has made to turn his life around, including excluding himself from previous associations, engaging with the church, working full-time with a reputable mining company and having a wonderful partner who is a positive influence on his life.
His mother provided a reference of support for him and points out that he is instrumental in looking after her; taking her for hospital and doctor visits. She says that he recognises the mistakes that he has made but he has been incredibly remorseful and regrets what he has done.
The Pastor from the Gospel Faith Mission speaks highly of his involvement in various church activities and mentoring sessions, and also that he appears to him to be incredibly remorseful.
A lengthy psychologist's report followed an assessment on 2 July 2021. He said to the psychologist that he expressed his remorse for the current offence and said, "After I was found guilty I thought I should take responsibility for what I've done. I've been so stupid. Just because I was getting attention from girls, I've made some very stupid decisions."
The report also sets out his backgroun. He is of Sri Lankan heritage. He came to Australia and completed high school and his Higher School Certificate. He played professional rugby for some years in Perth before returning to Sydney, getting a security licence and working in various fields before going to work at the casino, and then at Google as a security manager.
There was no history of abuse of illicit substances and no gambling addictions reported. He was assessed as being in the low risk of recidivism, given his absence of criminogenic factors, the absence of a history of alcohol or substance abuse or gambling, and his regular and consistent employment was a protective factor against further offending. There is evidence as to the medical conditions described by his mother for which he provides her care and evidence of a recent engagement as a site manager with a salary of $100,000/year plus a motor vehicle and telephone with an employer named WorkPac working in the mining industry.
A Sentence Assessment Report was prepared and statements contained in that report were the subject of some contest in evidence at the commencement of the sentence hearing on 30 July 2021. The author of the report was Ms Layla Marcos from Bankstown Community Corrections office. She recorded in the report that he agreed with the police facts. He stated at the time of the offences he was unemployed and was struggling financially, and he regrets his involvement in the supply of prohibited drugs. She assessed him as being at a low risk of reoffending and suitable for community service work.
The defence took issue with the recorded of his statements to Ms Marcos and he gave a number of versions as to what he told Ms Marcos.
The following exchange occurred when the offender gave evidence in chief about what he told the author of report (T4 L8 - L25), Q. Sir I'm going to take you first to the Sentencing Assessment Report. The author of the report suggests that you said to her that you agreed with the police facts and stated at the time of the offences that you were unemployed and struggling financially and that you regret your involvement and you committed the offences for financial gain. Now is that what you told the report's author? A. No. So I said-- Q. What did you tell the report author? A. Because jury find me guilty and that's the verdict that has given me, so I take the responsibility of what the jury have found and that's what I am responsible for what the jury found guilty and brought charges. Q. And so that it might be a fine distinction but you're not admitting the police facts, you're not saying that you committed the offences for this individual gain. You did not concede you committed the offences at all. But you do, for the purposes of these proceedings, accept the jury's verdict? A. Correct.
He further said (at T5, L1 - L24) Q. Sir, when you told the psychologist those phrases, were you admitting that you had actually committed these offences? A. I'm admitting it that I'm taking responsibility for what the jury found and I am admitting that, you know, the reason I'm at this point of time is because when I've had it happen and you know, that's, yeah. Q. Because of the people you were mixing with, the lifestyle that you were living? A. Correct, yeah. Q. And other-- A. Attention-- Q. Anti-social factors in your life? A. Correct, yes. Q. And you are not actually admitting that you have committed these offences and, but rather you accept the jury's verdict? A. I respect the jury's verdict and what the court has found and I put my hand up to that, yes. Q. And any other expressions of remorse or contrition are crashed in those terms, rather than an admission of the offences themselves? A. Correct.
He described in evidence a similar background to that which he conveyed in evidence before the jury at trial. He described working at Google and at the casino and lending money to Ohmid and a number of his associates.
He then said that he had a relationship for some time with a Middle Eastern lady and he borrowed $15,000 to take her on holidays expecting to eventually get married to her and have a family, but when they returned from a holiday to Dubai he was shocked to get a call from her mother saying that he had to move out. He was confused and he had never spoken to the woman again.
His case to the jury, and repeated in evidence on the sentencing proceedings, was that he was duped or taken in by Ohmid and his men because he was a man of good character and that they used him to commit drug offences.
Ms Marcos who was located and gave evidence on very short notice. She read her contemporaneous notes of the conversation with the offender prior to the preparation of the pre-sentence report. She said (T17, L18 - L29), … The offender described a stable and overall happy life until his relationship ended in 2018. He stated that he became extremely depressed and started to spend time with negative peer associations. He quit his job due to his depression and was surviving on his work payout for a while but soon ran out of money and got involved in the supply of prohibited drugs because it was easy money. …. and it follows on to say that he said he knew it was wrong, he was constantly looking over his shoulder and worried that he might be caught." "
Ms Marcos repeated a summary of that contemporaneous note on two further occasions during her evidence when cross-examined by Mr Fokkers.
He put to Ms Marcos that, in fact, the offender had said to him, "You have been convicted by a jury. I don't want to hear your story. The fact that you're guilty now is what's relevant and you have to agree with the plice facts because the jury found you guilty," and she said that she did not remember saying that and emphasised her note of what he had said to her.
I accept given her contemporaneous note, that she accurately described the statements that he made to her at that time, and I accept that her conclusions in the sentence assessment report were an accurate reflection of the offender's contemporaneous statement because, as Ms Marcos said when asked why she did not put that version verbatim in her report, she said (at T20, L13 - L15) "No I did not put that in my report, that sentence. These are my case notes. You don't cut and paste from case notes to report. We provide the information that's relevant."
When the offender's evidence continued, he said that he had not told his employer about the serious charges that he was facing or the possibility that he may be going into custody because he said that his employer was not interested in criminal records. He continued to assert that he did not ask questions about what was going on. He did not really think about what these men were asking him to do with the money that he was lending them.
When asked, "Why do you think you fell into this behaviour," he said, "I think I made the wrong choice. I trusted people," and he said it was because he was "lonely" (T20, L32 - L37)
He was asked, "Do you think you would've made these choices if you hadn't been so unceremoniously dumped by your partner?" He said, "Well, I would've said - if I was probably given a clear instruction why we separated I probably would've moved on with life in a positive way, but I think I took everything to heart at that time," (T20, L44 - L49)
He asserted, as he had before the jury, that he thought he was targeted and recruited by this group because he was a person with no record and that they used him, but he did agree that he had been drawn into their group and he was not denying responsibility for that, and he did not deny that he made the choices to go with the group.
When challenged by the Crown Prosecutor he continued to assert that he had done nothing wrong (at T33, L1 - L35 Q. Your evidence is that you didn't do anything wrong, isn't it? A. Yes. Q. Okay, you say that you take responsibility for the matter, is that right? A. Yes, like the jury found. Q. You take responsibility for the jury's verdict, is that correct? A. Yes sir. Q. What does that mean? A. Well the 12 people of the community found me guilty. Q. Yes? A. So I take the responsibility of what they found as a law abiding citizen and I take responsibility on that. Q. But when you say you take responsibility for the decision of the jury, the situation is that in your mind is that you did nothing wrong, so there's nothing to take responsibility for, is there? A. I take responsibility of what the jury found and also getting involved in these people that I've found. Q. When you say you're getting involved with these people, what are you talking about there? A. Well obviously now that I know that they were obviously drug dealers and et cetera. Q. Okay, and so all you'd say really is that the worst thing you did is just get involved with some people that were involved in drugs, is that right? A. Yes. Q. I just want to make sure that's what you're saying to the court? A. Yes, I got involved in the wrong people. Naïve and you know, I should have thought about who they are, what they are, but I didn't. So I learned that from, what happened to me, I learned that from there.
He was asked as to whether he agreed with Community Corrections' suggestion that he would undertake supervision, and it was put to him that he did not have any need for assistance with issues because he did not have any drug or alcohol problems, he had a full‑time responsible position and he had no mental health problems. He was asked (T35, L42 - L49): Q. When you say you express remorse, what do you mean by you express remorse? What does that mean? A. People that - the family that I put through, the community that I put through, you know, who I am and then what I got charged with, it's very, it's disturbing even to me to just think of it and the people, you know, people, the family, the court system, just the law pretty much you know, it's a disappointing thing for me, but you know I apologise and sorry for the court, my family, my loved ones and yeah.
He continued to deny his responsibility for the cocaine in the car (at T36, L10 - L42). Q. … [D]o you acknowledge that you knowingly possessed that commercial quantity of cocaine in your vehicle, that day you were stopped by the officer? A. Did I had a knowledge? Q. Yes? A. No I didn't have a knowledge. Q. Okay and you deny being the person involved in the selling of cocaine by that group, don't you? A. That's right, I denied it, yeah. Q. You've got no reason be remorseful for anything, have you? A. I was remorseful for the involvement that I had with people and the people I put through, yes. … Q. So again, are you acknowledging that you committed these offences or are you still denying it? A. I acknowledge that I got put in place to commit the - involved in these people, that's what I meant by that.
He was asked about what he had told his partner which led her to express the view that he was very remorseful in the mistake he had made (T37, L19 - L33). Q. You didn't tell her that you were remorseful for committing the offence of supplying drugs, did you? A. I told her I got caught with drugs and ongoing supply, a commercial supply. Q. Yes but you told her, I take it you're going to say that you told her that you didn't know the drugs were in the car? A. That's right, yeah. Q. And when she says, "He takes full responsibility for his actions", did you ever say that to her, that you take responsibility? A. Yeah I told her, the jury found me guilty, I said to her like, "I just want to", it just got me to that point where it's like, you know, I involved in these people, you know, they used me and I didn't think about anything had you know, my mindset and my mental state at that time was different and as a man, I'm going to take the responsibility and move on.
When he was asked about whether the offending was for financial gain, as is indicated in the sentence assessment report, he said (at T39, L16 - L18): Q. What you said there sir was that you committed the offences because you needed the money. That's correct, isn't it? A. I committed the offence for financial distress that they put me through, yeah.
When re-examined by Mr Fokkers as to what he meant by apologising, he said (at T39, L25 - L;28): Apologising for the action I took part in. I apologise for the action that I took part in, especially my closest family. I apologise for stress and disappointment I put through to my mum and my brother and the community around me and stress that I…
When asked what the meant, precisely he responded (T39, L41 - L42), Should have known and should have pulled myself out of it. Not to be naïve. Ask questions. Be a focussed straight minded person, but I haven't.
I accept the Crown's submission that the offender was an entirely unreliable witness lacking in any credit and the only consistency about his evidence was that it was consistently inconsistent. That submission was put in the context of the evidence of Ms Marcos' contemporaneous note of her conversation with him, and the extracts to which I have referred demonstrating the inability of the offender to come to grips with the consequences of the jury's verdict.
The Crown submits that his moral culpability is elevated as the offences were not committed to fund any habit or addiction but, rather, were solely for profit.
As the High Court said in Muldrock v The Queen (2011) 244 CLR 120, the objective seriousness of a standard non-parole period offence must be determined wholly by reference to the offending without reference to matters personal to the offender or a class of offenders.
Cases dealing with offences against s 25A (of the Drug Misuse and Trafficking Act 1985) are replete with expressions of the seriousness of the drug trade and the way in which Courts must address such serious criminality. As Hulme J said in Ritter v The Queen [2012] NSWCCA 121, "It is precisely to the dealers who engage in this kind of conduct, that is as s 25A is directed, since it is those persons who keep the pernicious trade in drugs rolling," Heroin being the drug referred to there, but cocaine is equally applicable. What is important is to give full effect to the legislative policy that the section operates so as to provide a strong deterrence for those who may be tempted to engage in ongoing trade and to deter those who are minded to stand in their shoes once they are apprehended and sent to imprisonment.
Here, in relation to the ongoing supply, the offender was able to access customers via a WhatsApp chat group and readily access and supply cocaine at short notice by driving around the city and suburbs and delivering the drug to customers. There was a basic level of planning and organisation for an offence of this type without being particularly sophisticated, but the offending is a serious example of this offence.
As both counsel agree, the Court emphasised in Parente v The Queen [2017] NSWCCA 284 that sentencing in drug supply cases should be approached consistently with general sentencing principles having regard to, as I have said, the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999, which include deterrence and protection of the community and consideration of the maximum penalty and the standard non-parole period which is a legislative guide post set at a high level of drug supply offences.
The offender's role in this enterprise cannot be precisely determined. The Crown does not submit that he had a major role in sourcing such larger quantities, but neither was he just a mere courier. He was an essential cog in what was occurring.
He used his own vehicle and that vehicle had secret compartments built into it. His role in delivering drugs was an important cog in the distribution of a substantial quantity of cocaine. As to the second count, he carried the drugs, accompanied by Ohmid, to his car in the basement and set off towards Canberra and was only detected because of his erratic driving and the alertness of the highway patrol officer.It was clear that he and Ohmid had a close relationship, and in fact he communicated with Ohmid immediately after he was stopped by the police, and his regular attendance at the Mascot units where Ohmid lived is a significant factor and I accept the Crown's submission that the objective seriousness of the offending was slightly below mid-range.
The submissions for the offender take issue, as I have indicated, only with the assertion as to the amount of money deposited into the offender's bank account. It is unnecessary for sentencing purposes to determine that issue and I will deal with that when I turn to the confiscation application which will be dealt with following sentence.
The second matter to which counsel took objection was [20] of the Crown facts on sentence which assert that the offender was engaged in regular supply of bags of cocaine. That is an apt description of at least the eight supplies which were established by the jury's verdict and are the substance of the first count.
Mr Fokkes points out as to count 2 that the amount of 330 grams is not significantly in excessive of the commercial quantity and substantially lower than the large commercial quantity of 1,000 grams, and the purity is at a moderate level of 64.5%.
Mr Fokkes submits that a drug mule cannot inform on his superiors about information he does not possess, and such evidence from the offender is, again, consistent with someone who is at the very bottom of the hierarchy with no value within the hierarchy other than that of absorbing risk, almost acting as a fuse to protect the syndicate with his own demise, and it was said that this reduces the objective gravity of the commercial supply count significantly. However, for the reasons put by the Crown, I do not accept that submission.
The Crown does not point to any aggravating factors, and none are apparent.
As to mitigating factors, it is true that the cocaine was intercepted and prevented from reaching the streets in relation to count 2, and the quantities in count 1 were small and were conveyed to apparent users of the drug on a social basis. He has made efforts of rehabilitating himself after the offending but, as is clear, there was no low point from which to recover or rehabilitate himself given his good employment background, his lack of alcohol, drug or gambling addictions. His good character is taken into account as a mitigating factor. I think his prospects of reoffending are, as assessed by the author of the pre-sentence report, favourable in that he is unlikely to return to significant criminal activity.
Mr Fokkes submits that the break-up of his former relationship was the catalyst that turned a lawful, successful manager of security into a drug mule. The Court can take into account the very positive turnaround in the offender's life since he was arrested. However, as I have indicated, he was not prior to this offending leading an untoward or antisocial life and, as I accept in the light of the evidence, his offending was willingly and knowingly committed for financial gain.
Mr Fokkes submits that the s 5 threshold has been crossed and that a term of imprisonment should be imposed but, in the light of decisions such as Robertson and other cases to which I will refer, the term of imprisonment should be served by way of an intensive corrections order.
The Crown submits that immediate full-time custody is appropriate and any other penalty would fail to reflect the objective seriousness of the offences and fail to properly take into account the purposes of sentencing. The Crown provided a number of cases that are said to indicate the type of sentences imposed in these matters and statistics in relation to the offending, albeit a blunt tool, have been considered as well after submissions from counsel.
Mr Fokkes provided a bundle of cases in which intensive corrections orders have been made for drug supply offences. Ultimately, of course, as the Courts have indicated, no individual case provides a close comparator or a binding range of sentence as each case must be assessed on its objective and subjective factors.
The cases referred to by the Crown include Borg v R; Gray v R [2020] NSWCCA 67, R v McBride [2019] NSWDC 371, Bond v R [2020] NSWCCA 277, Sheather v R [2020] NSWCC 162 and R v Turk [2020] NSWDC 400.
In Borg v R; Gray v R there was a supply of 330 grams of methylamphetamine and the sentence was four years and six months with a two year and eight months non-parole period.
In the matter of R v McBride, after a trial on a charge of supplying 340 grams of methylamphetamine a term of imprisonment of four years and six months with two years and three months non-parole period was imposed by Hock J.
In Bond v R , after a 25% discount, on a charge relating to 480 grams of methamphetamine a sentence was imposed of four years and six months with a one year and four months non-parole period for the co-offender, and for Mr Bond the sentence was five years with a two year and nine month non-parole period.
In Sheather v R a sentence of four years and ten months with three years and two months non‑parole period was confirmed in relation to the supply of 308 grams of cocaine.
In R v Turk a sentence of two years and three months with a non-parole period of one year and two months was imposed for a supply of 339 grams of MDMA over a period of months after a 25% discount for a plea of guilty.
The cases to which Mr Fokkes referred include R v Johnston [2019] NSWDC 901, R v Micah [2015] NSWDC 321, R v Newton [2020] NSWDC 806, R v Loudon [2020] NSWDC 57.
In R v Johnston, where Bennett SC DCJ sentenced the offender for supplying a number of cocaine supply offences with an aggregate ICO of two years and three months to be served by way of ICO. The first charge was supply the 8.23 grams, the second offence was supplying 1.57 grams of cocaine, and the third offence was ongoing supply. The fourth offence was ongoing supply.
The next case referred to by Mr Fokkes was R v Micah in which Norrish QC DCJ imposed a one year and ten-month ICO for the supply of 194 grams of methamphetamine.
The next case was R v Newton in which Hunt DCJ imposed an ICO for two years for the supply of 118 grams of MDMA.
The final case referred to by counsel was a sentence imposed by Priestley SC DCJ of an 18 month intensive corrections order in the matter of R v Loudon for relatively small amounts of methylamphetamine.
As the supplementary submissions from the Crown indicate, any one case does not establish a range of sentencing but they give some idea to the Court as to the sentences that have been imposed in other cases and acknowledge the various objective and subjective matrices are wide ranging.
As the Crown points out, the cases provided on behalf of the offender were matters in which pleas of guilty were entered, mostly attracting 25% discounts, and that is not the case here. I accept, as the Crown says in the light of the evidence to which I have referred, that he did take part in these offences purely motivated by financial reasons, having accepted Ms Marcos' evidence as to his admissions to her, his handwritten letter of apology to the Court, and what he said in evidence in these proceedings. The offender had no addictions to fund or even casual or social drug use issues. He had no mental health issues or other factors impinging in any way on his clear choice to engage in the offending, and I accept that there is no satisfactory evidence on which it could be found on the balance of probabilities that he was contrite or remorseful and the statements to which I have referred in the course of these remarks demonstrate that at its highest the offender accepts the verdict without truly expressing remorse or acknowledging his involvement in the offending.
Mr Fokkes in his supplementary submissions deals with the cases to which I have already referred, as relied upon by him.
His previous good character, of course, is taken into account as a mitigating factor. The ultimate submission put by Mr Fokkes was as follows. "It is submitted that the offender was targeted by the criminal group at an emotionally low point in his life following the unexpected and devastating break-up with his partner following an expensive holiday funded by debt. It is submitted that the criminal group groomed the offender in full knowledge that he was a senior security officer of high standing. The offender was targeted because he would make an ideal drug mule and low-level street dealer. Those two features in combination significantly reduce the offender's moral culpability."
That submission seems to acknowledge an admission by the offender, finally, of the severity of his offending, but nothing in that submission would lead to a significant reduction in his moral culpability.
Finally, Mr Fokkes submits that an aggregate head sentence of three years is available on the principled basis and that term should be served by way of an intensive corrections order to promote his rehabilitation and to promote the protection of the community having regard to s 66 of the Crimes (Sentencing Procedure) Act 1999.
The orders that I will make are as follows: 1. The offender is convicted of each offence. 2. The indicative sentences are: 1. Count 1: two years and six months; 2. Count 2: three years with an indicative non-parole period of 20 months. 1. I impose an aggregate sentence of three years and six months imprisonment commencing on 19 August 2021; 2. I impose a non-parole period of two years, expiring 18 August 2023. 3. I find special circumstances on the basis that this is his first time in custody. I take into account the difficulties associated with custody, particularly initial custody, in the context of the current COVID pandemic, and I take the view that there should be an extended period of supervision and parole to ensure, as far as possible, that he does not return to any criminal activity. 4. As to the s 166 matter (Sequence 2 (H73423484) Class A m/v speed >10km/h), I will deal with that, as indicated, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999. 5. I note that the other sequences (as indicated at [4]) are withdrawn and dismissed.