R v Sequera

District Court of NSW|2021-09-30

REMARKS ON SENTENCE

The offender is to be sentenced having pleaded guilty to an offence pursuant to s 93GA(1) of the Crimes Act 1900 of fire firearm at building with reckless disregard for safety of another person. The maximum penalty is 14 years imprisonment and at the time of the offence, which occurred on 27 December 2014, there was no standard non-parole period prescribed.
The offender was arrested on 9 September 2020 and has been in custody on remand since that date.

The sentence hearing

The sentence hearing took place on 30 September 2021. The Crown Sentence Summary became Exhibit A and it included a statement of agreed facts which may be summarised as follows.
At around 8pm on Saturday 27 December 2014, the offender entered the gaming room at Livingstone Hotel at Petersham holding a shotgun. He was holding the gun with two hands up to his chest; however the security guard on duty could see that his right hand was at the trigger. The offender tried to clear the chamber of the weapon and the security guard saw a bullet come out from the top of the gun and fall onto the carpet in the bar area. The security guard realised the gun was not working and ran towards the offender, who turned around and ran towards the front entrance of the hotel. At that point, he turned around and pointed the gun at the security guard who was a short distance away from him.

The Victim Impact Statement

The solicitor advocate for the offender made it clear that the offender was not disputing that the offending conduct involved a terrifying experience for the victim. However, the Crown was not relying on significant harm to the victim as an aggravating factor pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"). The offender referred to Tuala v R [2015] NSWCCA 8 at [80]-[81] to submit that considerable caution must be exercised before a VIS can be used to establish an aggravating factor to the requisite standard, particularly with respect to one composed by the daughter of the victim.
The offender submitted that the statement did not comply with regulation 11(3) of the Crimes (Sentencing Procedure) Regulation 2017 ("the Regulation"). As the author of the statement was not "providing information for inclusion" in the statement, but rather composed the statement herself, the statement went beyond the impact of the crime on the victim himself, but rather spoke to the daughter's understanding of the impact of the crime, not only on the victim but on the wider family.
The Crown submitted that the construction of regulation 11 advocated on behalf of the offender was nonsensical. In the circumstances, where the victim had died prior to the court proceedings, and was given no opportunity to provide a statement, to prevent a member of his family doing so would go against the purpose of the legislation. The Crown further submitted that the content of the statement was a question of weight and that the observations of the victim's daughter contained within it were not relevant to any question of substantial harm being raised as an aggravating factor.
Section 30 of the CSPA provides as follows: 30 Victim may be assisted (1) A representative of a primary victim may (subject to the regulations) do any of the following on behalf of the victim, but only if the primary victim is incapable of doing so because of age, impairment or otherwise - (a) provide information for the preparation of a victim impact statement, (b) object to the tendering of a victim impact statement. (2) A representative of a victim may (subject to the regulations) do any of the following on behalf of the victim - (a) prepare a victim impact statement, (b) read a victim impact statement. (3) Anything done by a representative in accordance with this section is taken to have been done by the victim. (4) The regulations may specify the persons or classes of person who may be a representative of a victim for the purposes of this section. (5) A representative of a victim who provides information for the preparation of a victim impact statement or prepares a victim impact statement for the victim is not precluded from providing information or preparing a victim impact statement on the representative's own behalf in relation to the same offence if otherwise eligible.
Clause 9(1) of the Regulation provides that a member of the victim's immediate family may be a representative of a victim for the purposes of providing information for inclusion in a VIS or objecting to the tendering of a VIS.
Clause 11 of the Regulation provides as follows: 11 Content of victim impact statements (1) A victim impact statement must identify the victim or victims to whom it relates (2) The statement must include the full name of the person who prepared the statement. (3) If the person who prepared the statement is not a victim to whom it relates (or a representative referred to in clause 9(1) who is providing information for inclusion in a victim impact statement): (a) the statement must indicate that the victim or victims do not object to the statement being tendered to the court, and (b) the victim or victims (or the victim's representative) must sign the statement to verify that they do not object.
Clause 30 of the Regulation provides as follows: 30 Victim may be assisted (1) A representative of a primary victim may (subject to the regulations) do any of the following on behalf of the victim, but only if the primary victim is incapable of doing so because of age, impairment or otherwise - (a) provide information for the preparation of a victim impact statement, (b) object to the tendering of a victim impact statement. (2) A representative of a victim may (subject to the regulations) do any of the following on behalf of the victim - (a) prepare a victim impact statement, (b) read a victim impact statement. (3) Anything done by a representative in accordance with this section is taken to have been done by the victim.
It is clear that as a member of the victim's immediate family, Ms Kalauta is entitled to be a representative of a victim, who is now deceased. Pursuant to s 30(2) of the CSPA, she was entitled to both prepare a VIS and to read that statement to the court if she chose to do so. Both the Act and the Regulations made thereunder must be given a purposive construction. To read it down in the way advocated on behalf of the offender so as to prevent the representative's statement being read on the basis that she was merely "providing information for inclusion" in the statement would defeat the purpose of the legislation. I therefore rejected the objection to the VIS raised by the offender and allowed the Crown to rely on it pursuant to s 30(2) of the CSPA.
The content of the VIS is referred to below.

The offender's evidence

Exhibit 1 was a report from Ms C Baker, psychologist, dated 20 September 2021. The author set out the offender's family and personal history. He was born in South Africa and moved to Australia with his family when he was 18 months old. It was noted that both his parents were chronic alcoholics and they separated when he was eight years old. Both his parents also had mental health issues, his mother suffering schizophrenia and his father agoraphobia and anxiety. An older brother had developed paranoid schizophrenia and committed suicide at 25 years of age. The offender reported that his father was mentally abusive towards him. Following his parents' separation, his mother re-partnered when he was 10 years of age, however, he had no relationship with his new step-father. The offender left home at the age of 14 years and between the ages of 14 and 19 he lived in a number of refuges and occasionally resided with his father. He was 19 years of age when his brother died, at which time he went back home and lived with his mother for about six months.
The author reported that the offender completed Year 9 and Year 10 of high school via "Youth off the Streets", a school run by Father Riley. At 17 he worked in a call centre for approximately two years, during which time he started smoking marijuana and drinking heavily.
Between the ages of 19 and 25, the offender often slept on the streets and was unable to find a bed in a refuge or a boarding house. At 26 years of age he obtained full-time employment at the Datacom customer service call centre, where he remained for two years. He reported to the author that he spent all of his income on gambling, drugs and alcohol. He then obtained a part-time role helping to set up exhibitions at various locations in Sydney, for approximately five years. By that time, he had developed a bad drug habit. He was able to obtain housing in Glebe when he was 34 years of age and kept that until he was 36, but lost it when he went to gaol for three months in 2017.
The offender was in a relationship for seven years from the age of 19 years. He had one son from that relationship, who was born in 2007. His former partner has prevented him from seeing his son and as a consequence, he has not seen him for 11 years. The author also noted that he had developed no close friends during those years, but some "drug acquaintances". Prior to his arrest he had spent eight months staying away from these drug acquaintances and attended a church run by the Exodus Foundation on a regular basis.
Ms Baker took a history that the offender commenced drinking alcohol regularly when he was 12 years old. By 15 years he was consuming alcohol on a daily basis. He started using marijuana at an early age and by 21, his alcohol use declined, and his marijuana use increased. At age 27, he started a methadone program, following which he almost never consumed alcohol again.
He began smoking marijuana at age 14 and by 15 was using the drug daily. It was not until he was 26 years old that he started using "heavier drugs". When his relationship with his former partner broke down, he was introduced to heroin and ice. Once he was on the methadone program, his heroin use declined, however, his ice habit increased to half a gram each day.
The offender admitted to having used LSD and ecstasy during his teenage years. He had also used Xanax and Valium in the past and between the age of 29 and 31, he would use Xanax three times per week.
The offender also admitted to having a gambling addiction, stated that he had gambled almost every day on the poker machines for the last 10 years. Once he stopped using drugs, he also stopped gambling. The offender reported stopping his illicit drug use, having completed a six month MERIT Program in the first half of 2020. He stated that he did not want to use drugs anymore. He completed that program three months prior to his arrest.
The offender reported some psychological intervention, ten years ago when he saw a psychologist who told him he was depressed. The next time he received psychological treatment, he was admitted to the Marie Bashir Centre for drug-induced psychosis.
The offender gave a history of the offence to the psychologist. It occurred in 2014 during a period of his life in which he had been using ice daily, abusing benzodiazepines and was in "a very dark place". On the day of the offence he had taken four or five Xanax and only had bits and pieces of memory of what happened on that day. He stated, "I don't know if it was a suicide attempt… I had a gun in the house - but I don't know if I was going to go to the pub to rob the pokie room or because I was hoping to get myself shot by police."
The offender was now grateful the security guard had taken the gun from him, believing that if he had not done so, he would have been shot by police. He was now horrified about what he did and stated, "The people must have been terrified. I could have hurt someone, thank god I didn't. It is so tragic. It was terrible."
The author noted that the offender now expressed a belief that he could have a future that does not include illicit drugs.
The offender was assessed for a risk of future offending as a Moderate category for his risk/needs. His criminogenic needs were identified as including his history of drug and alcohol abuse, his poor family relationships, his lack of suitable and/or supportive companions, his lack of stable employment and housing, his financial insecurity and his untreated mental health. Any future treatment plan would need to address these needs in order to reduce his likelihood of reoffending.
The author opined that the offender may well have been experiencing considerable challenges with his mental health at the time of the offending. She noted his self-report of feeling depressed, lonely, with suicidal ideation and having been under the influence of benzodiazepines and potentially ice and/or heroin.
The author stated that there was no evidence of any significant psychopathology, however, the offender continued to suffer fluctuating mood and elevated anxiety. He benefited from sessions with the psychologist at Goulburn, which he had found useful in helping him to manage his anxiety and mood.
The author opined that his offending behaviour was closely related to his drug addiction and was influenced by his level of drug intoxication and poor mental health at the time of the offending. She made treatment recommendations for the offender for his relapse prevention.
Exhibit 2 was a letter from Ms K. Calabro, MERIT Clinician, dated 20 July 2020. It was a progress report on the offender's participation in the MERIT Program, which he commenced on 9 June 2020.
Exhibit 3 was the final report from Ms Calabro dated 31 August 2020. It concluded that the offender had engaged well with the program, displaying an ability to implement appropriate relapse prevention skills and to make good judgments supportive of long-term abstinence from all illicit substances.
Exhibit 4 was a bundle of clinical notes from Royal Prince Alfred Hospital, relating to the offender's admission on 23 November 2018 to 18 December 2018 for a drug-induced psychosis.
Exhibit 5 was a letter from the offender in which he stated that upon reflection, he strongly believed that the offence was a cry for help. At the time, he was devastated by his ex-partner's decision to stop his access to his son and was using hard drugs to escape the pain he was causing by neglecting his parental responsibilities. The offender stated that he had not used drugs for over 18 months and was confident that he could continue to abstain upon his release. He apologised to the security guard, stating that he could only imagine how terrifying it must have been for him. He also apologised to the wider community and stated his intention to contribute to society in a positive and meaningful way in the future.

The offender's oral evidence

The offender gave evidence that he was now 38 years of age. He agreed that all the information he had given to Ms Baker, psychologist, was true and correct. He had also read the agreed facts, which were true and correct.
The offender gave evidence that he first found out that the police were looking for him towards the end of 2008, after they had visited his father. When asked how he felt about that, the offender gave evidence that the matter had been hanging over his head for a number of years and was very disruptive of his life. He became very anxious, and his life went further into disarray.
The offender gave evidence that he had been a permanent resident of Australia since 1984, and he was concerned that he may be deported to South Africa, which was a terrifying prospect for him. He had no family and no support in that country.
The offender stated that he was here, i.e. in court, through his own actions. He found his childhood difficult to explain. Both parents suffered mental health issues and both were chronic alcoholics. He experienced a dysfunctional and unstable family life and left home at 14. Thereafter, he had no family or community support. When asked about his chaotic childhood, the offender said that he had lots of opportunities to make good life decisions, however, he was very self-destructive. He had self-esteem issues which stemmed from his childhood and was not assisted in working through those issues. His self-destructive behaviour led him to drug and alcohol abuse. As a result, he was unable to hold down any job for very long. The fact that his life was not stable was the root cause of his drug and alcohol issues.
The offender gave evidence that he was now focused on using his sentence as an opportunity to change for the better and not repeat past behaviours. In the past, he had reached low points but had not worked out that he could live in a different way. He now felt he was able to do that. Completing the MERIT Program had been very helpful. It had come at a perfect time, and he did not want to use prohibited drugs anymore. In fact, he had last used illicit drugs 18 months ago.
The offender gave evidence that he intended to seek counselling to remain drug-free and to achieve his goals, which were having a stable home, real relationships and ultimately having a family. None of that was compatible with abusing illicit drugs.
Finally, the offender stated that he would like to apologise to the family of the victim for suffering, for which he felt great remorse.
In cross-examination, the offender gave evidence that prior to the MERIT Program, he had on one occasion stayed two weeks in a rehabilitation program approximately seven years ago. He successfully completed the MERIT Program because he really wanted to give up drugs. Whilst on remand, he had been unable to participate in any programs however he was aware that he had options once he was in the community and he intended to attend the Exodus Foundation again. Prior to his arrest, he had been attending on most days for between one and two years. He also understood that he needed structured counselling on a regular basis.
The offender gave evidence that towards the end of 2018 when he found out the police were enquiring about him, he knew that it was about this offence, but he had not at that time felt comfortable handing himself in.
In re-examination, the offender gave evidence that he was arrested at the Exodus Foundation Church at Ashfield.

The Crown submissions

The Crown relied on a detailed written outline of submissions. It was conceded the offender was entitled to a 25% discount for his early plea of guilty.
The Crown submitted that the objective seriousness of the offending "fell slightly below the mid-range" for an offence pursuant to s 93GA(1) of the Crimes Act. This assessment relied on the following: "a. The offender entered the Livingstone Hotel in which there were numerous members of the public, while armed with a shortened .22 Long Rifle; b. The offender attempted to disguise himself by wearing a hat, sunglasses, a partial face covering and gloves; c. After attempting to clear the chamber of the firearm he ran towards the back door he had entered through; d. The victim was standing in close proximity to the door, which the offender fired at; e. One shot was fired. It entered through the glass pane of the door and was embedded in the wall adjacent to the door; f. After the shot was fired, the offender re-entered the hotel, still armed with a rifle. The victim approached him and grabbed the gun out of the offender's hands; g. The entirety of the incident, from when the offender entered the hotel to when he left on foot, was of a relatively short duration."
The Crown submitted that it was an aggravating feature that the victim worked as a security guard at the Livingstone Hotel, pursuant to s 21A(2)(l) of the CSPA. The Crown further submitted that the offender's criminal history disentitled him to leniency, but did not submit that his criminal history is an aggravating factor.
The Crown acknowledged that the offender had expressed remorse for his offending behaviour as was noted in Exhibit 1. The Crown submitted that a finding that the offender was unlikely to reoffend was not open on the material before the court. The offender had demonstrated some insight into his offending behaviour and there was a link with his illicit drug use. He had made some progress in his rehabilitation, as demonstrated by the MERIT reports, and his absence from illicit drugs whilst in custody. Notwithstanding that, the court would be guarded about the offender's prospects of rehabilitation, given that he had been a drug user for the majority of his life.
In respect of the offender's subjective case, the Crown conceded that the court could accept the background provided to Ms Baker and it was open to the court to make a finding that the offender had a deprived background in line with the principles set out in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
The Crown submitted there was no causal connection between the offender's mental health issues and his offending conduct. It was submitted that, at its highest, there was a causal connection between the offender's depression and his substance abuse and that he was self-medicating at the time of the offending. The Crown submitted that if the court held the offender's depression did contribute to the commission of the offence in a material way and therefore diminished the offender's moral culpability, protection of the community would play an even greater role in the sentencing exercise.
The Crown submitted the s 5 threshold had been crossed and the only appropriate sentence was one of full-time imprisonment. It was open to the court to making a finding of special circumstances, given the offender's substance abuse and the current COVID-19 response in NSW Correctional facilities.
In her oral submissions, the Crown referred to the delay of three years between the DNA comparison on the weapon becoming available and the arrest of the offender. The only explanation available was that the matter changed hands a number of times within the NSW police force. Once police spoke to the offender's father, towards the end of 2018, there was no evidence of any steps taken to locate the offender. In the meantime, he had started his rehabilitation and completed the MERIT Program. This situation should however be distinguished from a case where there was extensive rehabilitation.
The Crown conceded that the delay here was from the time of the offending in 2014 and it could be taken into account as a mitigating factor and with respect to a finding of special circumstances.

The offender's submissions

The offender also relied on a detailed written outline of submissions. The solicitor advocate for the offender submitted that the court should focus on enhancing the offender's prospects of rehabilitation, commence his sentence on 9 September 2020 and find special circumstances to allow a longer period of parole.
It was submitted that the objective seriousness fell below the mid-range for an offence pursuant to s 93GA(1) of the Crimes Act, taking into account: "a. The decision to discharge the firearm was a spontaneous act; b. The offence was not committed with the goal of achieving another criminal purpose - for instance, to intimidate the patrons and; c. The incident was of relatively short duration."
The written submissions outlined in detail the offender's personal history as recounted by Ms Baker in Ex 1.
The offender was entitled to a 25% discount for his early plea of guilty, which is also an objective demonstration of his remorse. At the time, he had developed considerable insight into his offending which bodes well for his prospects of rehabilitation.
The offender's submissions referred to the relevance of drug addiction as considered in R v Henry (1996) 46 NSWLR 346 and set out the relevant principles identified by Wood CJ at CL at [273]. It was submitted that the offender's drug addiction should be taken into account both in assessing the objective criminality and as a matter of subjective circumstance. The offending behaviour was driven by impulse and in circumstances where the offender was abusing ice and benzodiazepines daily. On the day of the offence, he stated he had taken four or five Xanax. It was submitted his drug addiction and mental health at the time played an inextricable role in the offending behaviour. As such, it should be taken into account in assessing the objective criminality. In addition, the offender's drug addiction should also be taken into account as a subjective circumstance in the following ways: "a. The offender's exposure to illicit substances at a very young age mean the addiction cannot be considered a genuine or personal choice. As such, this should reduce the offender's moral culpability; and b. The offender, having stayed abstinent for a period of more than 18 months, is truly at the "crossroads" and as such it should justify special consideration."
It was submitted the relevance of mental health disorders involves a number of considerations, in accordance with DPP (Cth) v De La Rosa (2010) 79 NSWLR 1;[2010] NSWCCA 194 per McClellan CJ at CL at [177].
The offender submitted that the profound deprivation suffered by him during his formative years had the effect of reducing his moral culpability for the offending, relying on Bugmy v The Queen (supra) and other authorities including Hoskins v R [2021] NSWCCA 169 per Brereton JA at [57].
The offender also submitted the current conditions of incarceration in NSW prisons as a result of the COVID-19 pandemic were relevant to mitigating the sentence to be imposed, relying on DPP (Cth) v Saadieh [2021] NSWSC 1186 per Hamill J at [48].
It was submitted that the offender has good prospects of rehabilitation. Although he had not remained crime-free since the index offence, his criminal history detailed a number of offences relating to property and drugs. It was clear that these related to his then ongoing drug addiction. Fundamentally, the offender's criminal behaviour all related to his substance abuse issues. It was submitted that since completion of the MERIT Program, the offender had remained abstinent from drugs and continues to be motivated to stay that way. In those circumstances, specific deterrence should be heavily moderated given his progress with rehabilitation and it was submitted the offender was unlikely to commit similar offences again. A finding of special circumstances was available to the court on the basis of his need for relapse prevention treatment under supervision and on the basis of the COVID-19 pandemic.
The offender's submissions attached Judicial Commission statistics which demonstrated that 87% of offenders pursuant to s 93GA(1) had a prison sentence imposed.
The submissions also attached relevant entries from the Bugmy Bar Book. In his oral submissions, the solicitor advocate for the offender submitted that the offender was a fundamentally different person from the person who committed the offence in 2014. It was conceded that it must have been a terrifying event for the victim and the patrons of the hotel. However, the objective seriousness of the offence was only one factor for the court to take into account. The subjective circumstances here meant that general and specific deterrence should assume less importance in sentencing. What was important was the steps the offender had taken towards his rehabilitation. It was clear that he wanted to abstain from illicit drugs and become a productive member of society.
On the question of delay, the offender submitted that in accordance with Blanco v R [1999] NSWCCA 121 at [17], Woods CJ at CL had outlined that delay was important in three respects. First, it meant the offender was for a period of time in a state of uncertain suspense as to what would occur. Secondly, during the same period he had demonstrated progress in his rehabilitation. Thirdly, where sentencing for a stale crime a measure of understanding and flexibility should be exercised.
It was submitted that all three factors applied to the offender here.
The offender submitted that he had a strong subjective case, as outlined in the written submissions. It involved early exposure to drug and alcohol abuse, parental neglect and being homeless at a very young age. There was a confluence of factors as outlined in the Bugmy Bar Book which are relevant, including his maltreatment as a child, his early exposure to domestic violence and the interruption to his schooling resulting in cognitive deficits. All of this reduced his moral culpability for the offending, together with the need for general and specific deterrence. The focus here, it was submitted, should be on rehabilitation.
It was submitted the offender had expressed remorse for his offending conduct, had considerable insight into it, had expressed sympathy for the victim and the patrons of the hotel and gratitude for the victim's actions in stopping him from further offending.
In relation to the evidence the offender gave concerning the possibility of deportation, it was submitted this was a huge wakeup call to the offender. It constituted a stern reminder to him of the consequence of his criminal behaviour. It was submitted that he now had good prospects of rehabilitation and was at a low risk of reoffending. The offender submitted that this particular offence was an aberration for him. There had been no similar offence since. Given the progress he had made with his rehabilitation and his abstinence from use of illicit drugs for the last 18 months, the offender had finally turned the corner. It was submitted that he was at a crossroads and was now on the road to full rehabilitation.

Determination

Section 3A of the CSPA sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
In assessing the objective seriousness of the offending, I take into account the matters referred to by the Crown in [61] above, namely, that the offender entered into the hotel where there were numerous members of the public whilst armed with a shortened .22 Long Rifle. He attempted to disguise himself by wearing a hat, sunglasses, a partial face covering and gloves, and after attempting to clear the chamber of the firearm, he ran towards the door he had entered through. The victim was standing in close proximity to the door when the offender fired one shot which entered through the glass pane of the door and became embedded in the wall adjacent to it. Thereafter, the offender re-entered the hotel, still armed with the rifle, when the victim grabbed the gun out of his hands. I find that the offending took place over a relatively short period of time, however, I reject the submission made on behalf of the offender that it was a spontaneous act. The offence was clearly premeditated, notwithstanding that the planning was not sophisticated. I further reject the submission made on behalf of the offender that the offence was not committed with the goal of achieving another criminal purpose. Rather, the offender armed himself and entered the hotel premises so as to commit a theft of the gaming room takings. There is no other rational inference to be drawn from the agreed facts. Having regard to all of the circumstances, I find that the offending did fall below the mid-range for an offence pursuant to s 93GA(1) of the Crimes Act 1900, but not far below it. It constituted very serious offending, which put not only the security guard but all patrons of the hotel in serious risk of harm.
It was an aggravating factor pursuant to s 21A(2)(l) of the CSPA that the victim was a security guard working at the premises. General and specific deterrence are both important in sentencing for firearms offences. A clear message must be sent to likeminded members of the community that to fire a firearm at a building with reckless disregard for the safety of another person is a serious offence in the criminal calendar, where Parliament has imposed a maximum penalty of 14 years imprisonment, and courts will impose condign punishment in appropriate cases. For reasons outlined below, the significance of general and specific deterrence are somewhat ameliorated in this case due to the offender's mental health issues. The maximum penalty imposed of 14 years imprisonment remains, however, a guidepost in the sentencing process.
I have had regard to the VIS written by the security guard's daughter. It sets out clearly the emotional, psychological and financial impact the offender's criminal conduct had on the victim and his family. It is a poignant example of the significant impact on the community of crimes involving the discharge of firearms. I note there is no medical evidence against which to assess the VIS, however, it is a matter of common sense that the offence had a substantial impact on the victim here. I have therefore taken the VIS into account, but I make it clear that I have done so not so as to aggravate the offender's moral culpability for the offending.
I have also taken the offender's criminal history into account. As set out above, it is lamentable and no doubt driven by his drug addiction. Whilst I do not take it into account so as to aggravate his moral culpability, the history of offending does not entitle the offender to any leniency in the sentencing process.
The offender is entitled to a 25% utilitarian discount on sentence in respect of his early plea of guilty. I am also satisfied that he is genuinely remorseful for his offending conduct, as set out in his letter of apology (Ex 5) and also in his oral evidence.
I was impressed by the offender's oral evidence. Notwithstanding that the reports of psychologists must be approached with some circumspection, I am satisfied that the offender suffered profound deprivation during his childhood and formative years. Both his parents suffered mental health issues and were chronic alcoholics. The offender was exposed to drug and alcohol abuse at a very early age and left home at 14 years of age with no family or community support. In Bugmy v The Queen (supra), the High Court held: "1. The circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his/her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way [40].
The effects of profound deprivation do not diminish over time and repeated offending and should be given full weight in determining the sentence in every case [42-44].
A background of that kind may leave a mark on a person throughout life and compromise a person's capacity to mature and learn from experience [43]."
In Hoskins v R (supra), Brereton JA said at [57]: "There is no magic in the word 'profound', and it is not necessary to characterise an offender's childhood as one of 'profound deprivation' before the principle is engaged. The principle is that social disadvantage may reduce an offender's moral culpability, especially where the offending is in the nature of impulsive or learned responses to situations, arising from the circumstances of social disadvantage. Thus the Bugmy principles may not operate to reduce moral culpability in a case where careful planning and premeditation is involved, such as cultivation and drug supply matters. However, engagement of the principles does not depend on the establishment of a causative link between the circumstances of deprivation and the offending."
Here, the principles are clearly engaged. The offender commenced abusing alcohol at the age of 12 and was consuming alcohol on a daily basis by the age of 15. He began smoking marijuana at age 14 and by 15 was using it daily. At the age of 26, he started using heavier drugs and quickly became addicted. At the time of the offending on 27 December 2014, he was heavily addicted to ice and benzodiazepines. The offender was also suffering mental health issues, having longstanding depression and anxiety. He had had little intervention for these issues, having seen a psychologist ten years ago. However, he was admitted to the Marie Bashir Centre for a drug induced psychosis in 2018.
To the offender's great credit, he had before his arrest addressed his drug and alcohol and gambling issues and had enrolled in and completed the MERIT Program. He had not consumed illicit drugs for some months before his arrest and has now been abstinent for a period of over 18 months. Given the extent and length of his addictions, this is a significant factor to take into account on sentence. The court recognises that it is no small feat to overcome an addiction to illicit drugs, particularly highly addictive drugs such as ice and Xanax.
The delay in sentencing the offender for a crime committed in 2014, a period of almost seven years, is also a relevant matter on sentence. There is no evidence of what police investigations took place following the offence, however, in August 2017 a DNA match was made with the offender. Thereafter, a delay of three years occurred before the arrest of the offender. Whilst there is no evidence of the reasons for that delay, the Crown proffered that it occurred as a result of responsibility for the investigation being passed to different officers within the NSW Police Service. In R v Todd [1982] 2 NSWLR 517, Street CJ said at 519: "Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."
The above authority was adopted by Wood CJ at CL in Blanco v R (supra) at [16], where his Honour also referred to Mill v The Queen [1988] 166 CLR 59 at [64]-[66]. Here, the offender was for an extended period of time left in a state of uncertain suspense as to whether he would be arrested and sentenced for the offence. In the meantime, he has made commendable progress with his own drug and alcohol rehabilitation, becoming abstinent for an extended period of time. I am also satisfied that he is now being sentenced for a somewhat stale crime, committed almost seven years ago. In those circumstances, a considerable measure of understanding and flexibility of approach are appropriate in sentencing here. As a matter of fairness to the offender, he is entitled to an emphasis being placed on his ongoing rehabilitation and a degree of leniency - see also Ozan v R [2021] NSWCCA 231 per Ierace J at [69].
The offender's concern about his possible deportation to South Africa is an irrelevant matter to sentencing, it being a matter for the executive government.
I do take into account the onerous conditions for those in custody caused by the COVID-19 pandemic. It is well established that this is a relevant matter on sentencing, having regard to the measures that Corrective Services have taken to protect the safety of the whole of the prison population, resulting in considerable hardship for those in custody. There are restricted access to work opportunities, training and education programs as well as mental health services. The conditions also include a restriction on personal visits with loved ones, as well as long periods of lockdown and isolation. The impact on the mental health of inmates has also been well documented - see DPP (Cth) v Saadieh [2021] NSWSC 1186 per Hamill J at [48].
The offender's mental health issues are relevant here in that he is not an appropriate vehicle for general deterrence and the need for specific deterrence is also somewhat reduced. This must result in a reduction in sentence which would otherwise have been imposed.
I am mindful that subjective considerations must not be allowed to cause inadequate weight to be given to the objective circumstances of the offending - see Kearsley v R [2017] NSWCCA 28 per Macfarlan JA at [14]. However, a combination of significant subjective factors as outlined above, the delay in sentencing, the offender's advanced rehabilitation and the COVID-19 pandemic considerations, must all be factored in to the synthesis, resulting in a more lenient sentence than would otherwise be imposed. The offender is also entitled to a 25% utilitarian discount on sentence. For those reasons, whilst a term of imprisonment for six years would ordinarily be a starting point, having regard to the matters outlined above, the starting point here should be a term of four years imprisonment. With a 25% reduction, I intend to impose a head sentence of three years imprisonment.
I also find special circumstances pursuant to s 44(2) of the CSPA, having regard to the need to progress the offender's rehabilitation, preferably in the community, and having regard to the COVID-19 restrictions in custody. I therefore intend to vary the statutory ratio between non-parole period and head sentence, and impose a non-parole period of 18 months imprisonment. That will commence on 9 September 2020.

Orders

I hereby make the following orders: 1. You are convicted of the offence of fire firearm at building with reckless disregard for safety of another person pursuant to s 93GA(1) of the Crimes Act 1900; 2. You are sentenced to a non-parole period of 18 months imprisonment to commence on 9 September 2020 and to terminate on 8 March 2022. 3. The balance of term will be a period of 18 months terminating on 8 September 2023. 4. Your parole eligibility date will be 8 March 2022.

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