R v SHANKS

Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act, 1999
Sentencing Act

Cases Cited: Brown v R [2014] NSWCCA 215
Bugmy v The Queen [2013] HCA 37
Cheung v The Queen (2001) 209 CLR 1
Crimes Act 1900
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Greaves v R [2020] NSWCCA 140
Hili & Jones v The Queen [2010] HCA 45
Moiler v R [2021] NSWCCA 73
R v Millwood [2012] NSWCCA 2
R v Speechley [2012] NSWCCA 130
R v Storey [1998] 1 VR 359
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Towers v R [2025] NSWCCA] 142

Category: Sentence

Parties: Rex
John SHANKS

Representation: Counsel:
Ms L Hanshaw for the Crown
Mr S Shaudin for the Offender
Solicitors:
Office of the Director of Public Prosecution
George Sten & Co

File Number(s): 2023/00420101

Publication restriction: No

JUDGMENT

1. The offender appears for sentence following his conviction after trial by jury on 15 May 2025 of one count, namely that he:

On or about 28 October 2023 at Wagga Wagga in the State of New South Wales, in the company of another person took Cameron Zabbia without his consent with the intention of committing a serious indictable offence, namely intimidation and at the time of or immediately after the taking actual bodily harm was occasioned to Cameron Zabbia.

2. The offence of which the offender has been convicted is contrary to s 86(3) of the Crimes Act 1900. The maximum penalty for the offence is 25 years imprisonment. Parliament has not specified a standard non-parole period in respect of that offence.

3. The offender pleaded not guilty and was convicted after trial. Accordingly, there can be no discount or consideration for any plea of guilty. That is not to say the penalty is increased because the offender put the Crown to proof but rather there simply can be no discount or consideration for a plea of guilty.

Facts

4. The parties have been unable to agree on the facts on which I should find and therefore it falls to me to find the facts of which I am satisfied beyond reasonable doubt for the purpose of sentence. However, the court is very grateful to the Crown for providing the document entitled “Statement of Facts Consistent with Evidence and Jury Verdict”. Counsel for the offender does not agree with all of the contents, but at least it has been a convenient starting point in determining the facts.

5. On the issue of determining the facts Gleeson CJ, Gaudron, Hayne & Callinan JJ in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 27 said:

“As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey - that a sentencing judge

‘may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.’

6. R v Storey is reported at [1998] 1 VR 359.

7. In Cheung v The Queen (2001) 209 CLR 1 at [14] in their joint judgment Gleeson CJ, Gummow & Hayne JJ said:

‘In Isaacs the Court of Criminal Appeal summarized certain well-established principles concerning the law and practice of sentencing in New South Wales as follows (omitting references to authority):

"1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury ...

2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. ...

3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. ...

4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.

5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. ... However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. ... ‘"

8. There is of course the more recent decision of Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29. In that decision French CJ, Bell, Keane & Nettle JJ said at [64]:

“But, as was established in R v Olbrich, a sentencing judge may not take facts into account in a way that is adverse to an offender unless those facts have been established beyond reasonable doubt and, contrastingly, the offender bears the burden of proving on the balance of probabilities matters which are submitted in his or her favour. Where, therefore, the prosecution fails to prove a fact or circumstance which is adverse to the offender, but the judge is not satisfied on the balance of probabilities of an alternative version more favourable to the offender, the judge is not bound to sentence the offender on a basis which accepts the accuracy of the more favourable version. If the prosecution fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the offender but the offender fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the offender, the judge may proceed to sentence the offender on the basis that neither of the competing possibilities is known. As was stated by the majority in Olbrich:

‘[W]e reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. The incongruities that would result if this submission were accepted are well illustrated by the present case. The respondent swore that he was a courier but the judge disbelieved him. To require the judge to sentence the respondent on the basis that he was a courier is incongruous.’"

9. Their Honours went on to say at [70]:

“Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability. Even so, it is sometimes not possible for the judge to ascertain everything which is relevant, especially where an offender chooses not to offer any evidence on the plea. Where that occurs, the judge must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard. As was stated in Weininger v The Queen:

‘The sentencing judge may not be able to make findings about all matters that may go to describe [the] circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt. Accordingly, in the particular facts of Olbrich, where the offender asserted that he was no more than a courier of the drugs, but the sentencing judge disbelieved him, it was neither necessary nor appropriate to sentence him on the basis that he was a courier.’"

10. That accords with the requirements in s 21A(1) of the Sentencing Act that facts be taken into account only in so far as they are "known to the court" according to the principles of proof laid down in Olbrich.

11. Cameron Zabbia, the victim, at the time of the trial was an inmate at a New South Wales Correctional Centre and gave evidence via audio visual link. Counsel for the offender maintains this is one matter that warrants the offender receiving some consideration pursuant to s 22A of the Crimes (Sentencing Procedure) Act, 1999. At the time of the offending the victim was a homeless person who would frequently set up camp in the vicinity of the Westpac Bank at the south eastern corner of the intersection of Baylis and Morgan Streets, Wagga Wagga. The offender was also a homeless person at the time of the offending. The offender and victim were acquainted with each other. I accept beyond reasonable doubt that in the day or so leading up to the offending there was a disagreement between them over money that the offender had given to the victim.

12. The Crown understandably relied quite heavily on footage from various surveillance cameras in Baylis Street, Wagga Wagga. The footage is generally very clear. Baylis Street is the main street of Wagga Wagga and is oriented generally north-south.

13. I am constrained to comment at this point that Cameron Zabbia was a most unimpressive witness. Counsel for the offender maintains in written submissions that the victim on more than 95 occasions in his evidence that he could not remember aspects of the night. I have not counted the number of times, nor do I propose to do so. However, I have a clear memory of the victim saying many times that he could not remember. Further, Cameron Zabbia gave every impression of being a very reluctant witness. In the circumstances I am not prepared to make any finding of fact beyond reasonable doubt unless it is clear from the CCTV footage.

14. On the evening of 28 October 2023 the victim was on Baylis Street in the vicinity of the Westpac Bank. The offender and another male Harold Blight approached the victim, stood either side of him and briskly walked him south along Baylis Street towards Edward Street. Edward Street is perpendicular to Baylis Street and is also the Sturt Highway.

15. While the offender and Blight were either side of the victim they would from time to time hold the victim’s clothing. I am satisfied beyond reasonable doubt from the CCTV footage that the victim attempted to free himself but his attempts were unsuccessful. It is from this I draw the inference that the victim was not consenting and in all of the circumstances the offender knew that the victim was not consenting.

16. The Crown maintains that I would find that the offender or Blight said words to the effect of, “you’re dead” or “you’re going to get it” to the victim. I accept there were things said, but for reasons given above I am not prepared to find beyond reasonable doubt the words used are those suggested by the Crown.

17. I am satisfied beyond reasonable doubt from the CCTV footage time stamped 11.06 pm that the offender and Blight were pulling, or at the very least walking briskly, with the victim while holding him along Baylis Street. To my mind it is obvious from the footage that the victim is not willing or even consenting to being with the offender and Blight. Counsel for the offender submits correctly that the medical evidence was that the victim was a falls risk after drinking. However, there is the verdict of guilty taken with the CCTV footage.

18. When they arrived near the southern end of Baylis Street the offender and Blight walked the victim down a laneway and into a car park. CCTV footage just after the time stamp 11.09 pm shows the victim being taken from Baylis Street into the laneway. There is no CCTV footage of the laneway or the events in the car park.

19. Given the verdict of the jury, I am satisfied beyond reasonable doubt that once in the car park the victim ended up in a crouched position on the ground. The offender stabbed the victim to the thigh and the calf resulting in two stab wounds that were to the extent that the bone was palpable.

20. The Crown submits the court would find that during the assault the victim heard the offender and Blight saying words to the effect of, “You’re a dog” and “You’ve had charges on boys” and “You’re going to get it”. Counsel submits that it is not incumbent upon the court to descend into the minutia of the events for the purpose of sentence. However, given the events and the stab wounds in particular I am satisfied to the criminal standard that at least something to the effect of the words submitted by the Crown were used.

21. After the assault the victim made his way to Baylis Street, were a bystander called triple 0. Paramedics arrived at the scene to treat the victim. At 11.55 pm the paramedics contacted the police to attend. The victim was taken by ambulance to the local Base Hospital.

22. The court is not favoured with any up to date medical report or information so far as the victim is concerned. There is no victim impact statement. Accordingly, the court is obliged to proceed to sentence on the basis that apart from perhaps scarring that the victim does not suffer any long term or permanent sequelae as a result of the injuries he received.

Assessment

23. In making a determination of the seriousness of the kidnapping charge it is instructive to consider the judgment of Johnson J (McClellan CJ at CL, Hammerschlag J agreeing) in R v Speechley [2012] NSWCCA 130 especially at [105]-[110].

24. The period of the detention is approximately 10 minutes. The detention was effected by intimidation and occasionally taking hold of the victim. There was no binding or tying up or the like. The serious indictable offence is Intimidation which is at the cusp of being a serious indictable offence. The actual bodily harm was significant in that it involved two quite serious stab wounds to the victim’s legs. However, as I have observed there is no evidence of any ongoing issues or sequelae.

25. Noting the length of the detention, the serious indictable offence pleaded in the count on the indictment and the nature of the actual bodily harm I am of the opinion that the matter is below mid-range, but not significantly so.

Criminal History

26. The offender was born on 7 June 1971 and accordingly was 52 at the time of the offending and 54 at the time of sentence. He was convicted of Common Assault in 2000 in respect of which a fine was imposed. In 2012 he was convicted by the Local Court and sentenced to imprisonment for 2 years for Indecent Assault on a Person under 16 years of age. On appeal the sentence was suspended. In 2010 he was convicted of Assault Occasioning Actual Bodily Harm and placed on a bond to be of good behaviour for 18 months. That bond was breached and a sentence of 2 months was imposed. The offender was convicted of a PCA offence in 2019 in respect of which a fine and disqualification was imposed. He has matters for dishonesty recorded against him in Victoria in 1989.

27. Counsel for the offender in written submissions (paragraph 20) put that the history is more historical than contemporary and that the record “does not disentitle him to any measure of leniency”. While the matters recorded against the offender are of some age, some of the matters are serious. While I do not disagree with counsel, the degree of leniency extended to the offender because of the relatively limited record would be extremely modest.

Facilitation of the course of justice

28. Mr Schaudin of counsel for the offender devotes considerable time in his written submissions (see paragraph 13ff) to put that the offender should receive some consideration or discount for his facilitation of the course of justice. The matters counsel rely upon to ground this submission are that the defence “allowed” the reading of a doctor’s statement and that the offender at trial did not oppose the victim giving evidence by way of audio visual link. The submission continued, “those things happen only by instructions”. A number of authorities are referred to and extracted.

29. I observe that there is nothing particularly unusual about a victim giving evidence by way of audio visual link in this day and age, particularly since the COVID 19 pandemic. Indeed, in sexual assault trials victims routinely give evidence in that fashion.

30. So far as the reading of the doctor’s report is concerned, it occurs to me as the judge who presided at the trial that had the doctor been required he too could have given evidence by way of audio visual link and that the evidence would have taken no more than an hour or so.

31. However, I also observe that the trial was conducted quite efficiently, and it would be unusual for the victim in a case such as this to give evidence by AVL. As the victim was an inmate in a correctional centre, him giving evidence by AVL meant that there was no need to transport him to Wagga Wagga. In all the circumstances I would allow some modest discount for the facilitation of the course of justice. If it is necessary to express that in numerical terms, it would be in the vicinity of 5%.

Subjective Case

32. No oral evidence was called for or on behalf of the offender. However, a volume of written material was tendered and became exhibit 1 on sentence. That exhibit contains a report of Dr Pusey (psychologist), counsel’s written submissions, sentencing statistics and a very helpful table of what are said to be like cases, the table having been prepared by counsel for the offender. I will firstly go to the report of Dr Pusey.

33. The offender is 54 years of age and a native of Great Britain and has never obtained citizenship of Australia. He moved to Australia with his parents when he was 6 years of age. He will likely be deported upon serving the non-parole period, but that is an irrelevant consideration so far as the determination of sentence is concerned. The offender was homeless for a period of about three years before he was taken into custody in respect of the present matter. The offender told Dr Pusey that but for his present incarceration he would be drinking (alcohol) and therefore run the risk of further offending.

34. Both the offender’s parents are deceased, with his father passing while resident in a nursing home. When asked about his childhood the offender said, “My childhood was very neglectful and slightly abusive physically and emotionally. My parents just weren’t there. They didn’t want us basically”. The offender was bullied at school because of his accent.

35. Mr Schaudin of behalf of the offender, appropriately, put in oral submissions that the evidence is insufficient to enliven the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37. However, counsel did rely on that part of the judgment of Simpson J (as her Honour then was) in R v Millwood [2012] NSWCCA 2 at [69], namely:

“…I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a ‘normal’ or ‘advantaged’ upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been ‘tragic and dysfunctional’. That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders.”

36. Essentially, I agree with counsel for the offender that the offender is entitled to some consideration by way of reduction in moral culpability because of the issues relating to his childhood. Reading Dr Pusey’s report I am prepared to find that the offender’s childhood was dysfunctional.

37. The offender has had a varied employment history. He began but did not complete an apprenticeship in electroplating and has obtained a forklift licence. He was employed in a chemical factory but that employment came to an end when the offender refused to be vaccinated for Covid. More recently while homeless he has been receiving the Jobseeker payment from Centrelink.

38. Dr Pusey reports that the offender has difficulty in maintaining positive social relationships. The offender saw a connection between this difficulty and his offending. The offender was not in any intimate relationship prior to going into custody. He has four children but he is estranged from all of them. He has no relationship with the mothers of his children.

39. The offender conceded that he has been an alcoholic since he was 17. He has dabbled with substance use but is not addicted to any illicit substance. Prior to his incarceration the offender’s alcohol consumption would average 3 bottles of port per day. He admitted to Dr Pusey that drinking has left him poor and homeless. He had been drinking on the night of the offending.

40. Clearly, the offender requires intensive and extensive assistance, treatment and counselling for his alcohol abuse. This is one of the factors that warrants a finding of special circumstances. I agree with counsel for the offender that the spectre of deportation should not prevent the court from making a finding of special circumstances.

41. On the issue of deportation, the report sets out at paragraph 61 that the offender reported that “things are looking bleak for me. I could be here for a while longer and once I’m released I will be in immigration detention for an undisclosed period of time before being deported back to England with no job, support network or place to live. It’s not a great outlook”. That may well be so, but as I have observed the issue of deportation is essentially irrelevant to this sentencing exercise.

42. Dr Pusey early in his report observed that the offender was obese. The offender conceded that he was overweight and placed his physical health at a four out of ten. I gained the impression that the offender was not really motivated to do anything about his physical health. At paragraph 66 of the report Dr Pusey notes that the offender reported experiencing anhedonia. I understand that this essentially means that the offender does not feel pleasure from anything.

43. The offender reported multiple admissions to mental health facilities between 2019 and 2022 for what he described as depression and anxiety. Certainly, it would seem that the symptoms the offender describes are consistent with depression and anxiety. An extended period of supervision to ensure that the offender receives appropriate treatment and counselling for mental health issues is also a factor that justifies a finding of special circumstances.

44. However, the offender did indicate that his cognition has improved due to him being sober and he has gained more clarity of thought. It seems that the offender may have gained some insight as he said to Dr Pusey, “This experience has opened my eyes to where my life has led due to my alcoholism”.

45. Paragraph 68 of the report reads:

“Mr Shanks acknowledged that he is experiencing feelings of guilt and remorse. He stated that ‘When I think about my incarceration I feel remorseful. I recognise that it shouldn’t have happened for a number of reasons. I’m also thinking about my past bad actions and I’m now able to look at my life and put it in perspective. A lot of it makes me feel sad and remorseful. I’ve made a lot of mistakes and hurt my kids the most”.

46. Appropriately, counsel in oral submissions made it clear he was not advancing a submission that the court would find the offender was remorseful. While what is set out above indicates that the offender has gained some insight, it does not amount to remorse for the purposes of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act.

47. At paragraph 75 of the report Dr Pusey opines that the offender is suffering from a Major Depressive Disorder and Alcohol Use Disorder in Remission. I understand from paragraph 79 of the report that Dr Pusey opines that the offender was suffering from the major depressive disorder at the time of the offending. Further at paragraph 80 Dr Pusey opines that the offender would have been suffering from Alcohol Use Disorder at the time of the offending.

48. However, I note the author of the Sentence Assessment Report notes that the offender denied being intoxicated at the time of the offending. Even if the offender was intoxicated at the time of the offending that cannot be a mitigating factor – see s 21(5AA) of the Crimes (Sentencing Procedure) Act.

49. The fact that the offender was suffering the major depressive disorder at the time of the offending reduces the offender’s moral culpability and impacts on the need for general deterrence. See for e.g DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178] per McClellan CJ at CL. On this issue I also note and have regard to the decision in Moiler v R [2021] NSWCCA 73 at [59] per Button J, namely:

“It is well known that the assessment of the extent of a mental condition, its causative connection (if any) with offending, and any concomitant reduction in moral culpability and sentence to be imposed are all very much a matter for a sentencing judge: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. Even so, in my opinion care should be taken not to take too prescriptive an approach, in a process of instinctive synthesis, whereby mitigating features such as mental illness or cognitive impairment are thought to require establishment as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence. It is noteworthy that the first dot point of that oft-quoted paragraph speaks of material contribution to offending, not singular or direct causation of it.”

50. Not surprisingly Dr Pusey recommends that the offender receives treatment for his issues relating to alcohol abuse and his mental health. Dr Pusey also recommends that the offender would benefit from engaging in an episode of forensic psychological treatment while in custody. I propose to forward a copy of Dr Pusey’s report to the Department of Corrective Services.

51. After a comprehensive discussion of the offender’s risk factors and the tools used to make an assessment, Dr Pusey concludes at paragraph 93 that the offender’s risk of recidivism is “moderate”.

52. Although the offender has attained some insight into his offending, the mental health and alcohol abuse issues, and although he has been abstinent of alcohol in custody, the conditions essentially remain untreated. Given the assessment of Dr Pusey I cannot make a finding that the offender is unlikely to re-offend.

53. If the offender obtains the necessary treatment and counselling for his mental health and alcohol abuse issues then his prospects of long term rehabilitation are improved. However, with the material available to the court at present, I am unable to make a positive finding that the offender has good prospects of rehabilitation.

Sentence Assessment Report

54. Some of the content of Dr Pusey’s report is reflected in the SAR. However, the SAR sets out that at the time of the offending the offender reported feeling “angry” and “annoyed” that he had given the victim money for the second time and he had not returned with alcohol.

55. Specifically on the offending the SAR records that the offender denied intentionally stabbing the victim, maintaining that the victim had the knife, he attacked first and they “wrestled”. This was essentially the defence case at trial, which, given the jury’s verdict, was clearly rejected.

56. The offender is assessed at being a medium-high risk of reoffending. This fortifies me in my earlier finding that I cannot find that the offender is unlikely to reoffend.

Parity

57. Harold Blight was the person in whose company the offender was at the time of the offending. Blight was sentenced in the Local Court at Wagga Wagga on 28 August 2024 to a total sentence of 14 months with a non-parole period of 8 months in respect of a charge of Reckless Wounding in Company. I am favoured with the learned Magistrate’s Remarks on Sentence. At p 10:35ff the following appears in the transcript:

“He (victim Zabbia) was manhandled or escorted – the victim was – to the end of Baylis Street and into a car park of Barreta Lane in Wagga. This is where the more serious offence of reckless wounding in Company occurred. He was pushed to the ground face first. The co-offender, Mr Shanks, had a knife in his hand or produced a knife and stood over the victim. The offender, Mr Blight, was standing nearby and then Mr Shanks bent over and stabbed the victim in the thigh and the calf with the knife, and then caused a laceration with the knife to the victim and, as he did this, the co-offender Mr Shanks was saying ‘you’re a dog’ or words to that effect.

The offender Mr Blight then kicked and punched the wounded victim as he was on the ground saying, ‘You’re a dog, you’re gonna get it’ or words to that effect. The victim was on the ground trying to protect himself and believed he was about to be killed. When the attack stopped the victim hobbled off and sought help. The offender and the co-offender left without rendering any assistance to the victim. An ambulance was called. He was bleeding, in pain and taken to hospital where he ultimately received or required surgical washout and suture closure of 5 cm wounds – two of them – to his calf and thigh. The one in the calf was deep enough to go all the way to the bone. He was discharged from hospital on 31 October 2023 and later Mr Blight was arrested and charged.

The facts reveal a very significant offence. The wounds were well above what I would call mid-range. There was a high degree of violence and there was use of a knife. Whilst the matter was not planned or premeditated it would appear that the victim was manhandled into a secluded car park at that time of night in order to commit the offence. It was in effect a random or relatively random act of violence on a person that Mr Blight hardly knew. It would seem on all the information I have that Mr Blight was not the instigator in the sense that Mr Shanks was not only the one with the knife, but it would seem that Mr Shanks was the person who might have had some kind of personal dispute with the victim.”

58. It is plain that Blight was sentenced on the basis of a joint criminal enterprise where he was present and ready and able to assist this offender. Blight was sentenced in respect of a less serious offence and his criminality is significantly less than this offender. It seems that Blight had a stronger subjective case. The principles enunciated in Bugmy v The Queen were enlivened and the learned Magistrate found that Blight had good prospects of rehabilitation. Blight was also suffering from PTSD.

59. I note and have regard to the decision of Towers v R [2025] NSWCCA] 142 at [114] per Coleman J (N Adams and Sweeney JJ agreeing, both with additional comments). While parity is an issue to be considered, given all the circumstances it does not have a great deal of work to do. I am constrained to observe however, that the sentence imposed on Blight appears to be very lenient, particularly in light of what was said by Cavanagh J (Hoeben CJ at CL, Hamill J agreeing) in Greaves v R [2020] NSWCCA 140 at [66].

General Remarks

60. In passing sentence I will need to give proper effect and regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

(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, and (g) to recognise the harm done to the victim of the crime and the community.

61. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless, having considered all possible alternatives, no other sentence is appropriate. Given the offending and the maximum penalty, clearly no other sentence other than imprisonment is appropriate. Counsel for the offender did not argue otherwise.

62. I understand that the parties agree that the appropriate commencement date of any sentence is 20 November 2023. For reasons set out earlier in these reasons I am of the view that it is appropriate to make a finding of special circumstances.

63. I am indebted to counsel for the offender for the industry shown in the preparation of the table of what are said to be like cases. I have now read that table a number of times. I observe however that each matter is to be determined on its own facts and circumstances.

64. Likewise, I am grateful for the provision of the statistics. However, I also warn myself about the use of statistics conformably with decisions such as Hili & Jones v The Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 at [80]ff per Garling J.

Orders

65. In respect of the offence that you

On or about 28 October 2023 at Wagga Wagga in the State of New South Wales, in the company of another person, took Cameron Zabbia without his consent with the intention of committing a serious indictable offence, namely intimidation and at the time of or immediately after the taking actual bodily harm was occasioned to Cameron Zabbia,

You are convicted.

66. Consequent upon that conviction I sentence you to a non-parole period of 3 years with a balance of term of 1 year 6 months.

67. The non-parole period will commence on 20 November 2023 and will expire on 19 November 2026. The balance of term will commence on 20 November 2026 and will expire on 19 May 2028.

68. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

69. For more abundant caution I note that the total sentence of 4 years 6 months takes into account the consideration for the facilitation of the course of justice. But for that the appropriate sentence would have been 4 years 9 months.

70. I direct that a copy of the report of Dr Pusey contained within exhibit 1 on sentence be forwarded to the Department of Corrective Services.

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