R v STOLL; R v McGRATH; R v SMITH; R v TRIFFIT [2022] NSWDC 612 | Case summary

Subjective cases

Exhibit 1 on sentence is a psychological report in respect of the offender Stoll prepared by Ms Thea Gumbert. The report notes at paragraph 2.2 that the offender was diagnosed with a mild intellectual disability in adolescence and he has been linked with the NDIS for some years. In that regard I note exhibit 2 on sentence which is a report dated 14 October 2022 by Jocelyn Marks a coordinator the organisation "Lifestyle Solutions".
Returning to Ms Gumbert's report, it is noted at paragraph 2.3 that the offender's parents are both of part aboriginal ancestry from the Wagga Wagga area. His mother was apparently too young to care for him when he was born and therefore he was raised by his maternal grandparents. While his grandparents apparently took care of his needs, they were both heavy drinkers and the offender was often exposed to arguments between them. The offender denied to the author of the report any exposure to violence or abuse at home.
The offender reported that from adolescence he would often run away from home and stay with friends. Whilst for reasons outlined for the purpose of proceeding to sentence I ignore the juvenile criminal history of the offender the juvenile record would tend to confirm this. The offender came into contact with the criminal justice system at an early age and has had a number of sentences of juvenile detention imposed. He was sexually abused on two occasions in his early teens by officers within the juvenile justice detention centre. This was not disclosed until quite recently.
When he was 17 the offender moved in to live with his mother at her invitation. Shortly later however she was killed in a motor vehicle accident and the offender turned to drugs to cope with his grief and distress. He lived for a short time with an uncle in Forster, but his uncle sent him back to the Wagga Wagga area because he was "hanging around the wrong people and getting into trouble". Soon thereafter his uncle committed suicide which caused further trauma and which in turn contributed to his use of drugs as a coping mechanism.
The report goes on to indicate that at about 18 or 19 the offender spent a couple of months living with his father. However, whilst he was in custody his father sold all of his belongings and their relationship broke down. The offender lives with his grandparents when not in custody.
The offender Stoll reported to the author of the report learning difficulties from the outset at school. He found school "too hard". The offender apparently has inadequate literacy skills daily life and needs assistance with filling in forms or writing letters. Whilst not being sure the offender thought he was about 16 or 17 when diagnosed with intellectual disability.
It would seem the offender began using cannabis when he was about 12 and this quickly became a daily habit. He began drinking alcohol on weekends when he was about 13. He has also used Xanax, MDMA and cocaine in his later teenage years. His mother died when he was 17 and he again used drugs to help cope with that situation.
Further, relating to drug use the offender Stoll found it difficult to recall his patterns of use in detail but told the author of the report he had been addicted to ice MDMA oxycodone and Xanax. He has been abstinent during his present period in custody and Buvidal is apparently assisting in that regard. In his late teenage years he completed a residential rehabilitation program which he found helpful but he relapsed.
Not surprisingly, the offender became depressed after the death of his mother and uncle and it would seem that he still has ongoing issues relating to their deaths. Again, not surprisingly, the offender also has issues associated with the sexual abuse at the juvenile justice institutions. Close relatives have died while he has been in custody on this occasion and was unable to attend the funerals. He indicated he would be interested in receiving formal counselling and treatment upon his eventual release. A little later in the report (p 7) it is noted that the offender intends to move away from Wagga Wagga upon his release and that he would like to move into the workforce.
At paragraph 2.7 towards the bottom of page 6 of the report, the following appears, "as requested in the letter of instruction, Mr Stoll's account of the index offence was not explored. However, he did offer that, 'I'm remorseful. Sorry what happened to the person. I didn't mean to hit him. I can't take it back but if I could I'd do it'".
The offender is entitled to a finding on balance that he is remorseful. However, noting that he maintained that he did not mean to hit the victim and noting the jury's verdict it seems that the offender is not taking complete responsibility for his actions. In these circumstances the expression of remorse does not achieve the same weight that it might in other circumstances.
At paragraph 4 of the report the author notes that Ms Marks in a letter of 29 June 2022 notes that she has been the offenders NDIS coordinator since November 2020 and that he receives support in relation to a primary diagnosis of mild intellectual disability and presents with symptoms of complex post traumatic stress disorder which are yet to be formally assessed.
References then made in the report to the Interim Positive Behaviour Support Plan dated 18 February 2022 prepared in respect of the offender Stoll. The results suggest a moderate degree of overall impairment. The offender is also noted to have difficulties with emotional regulation which can result in behavioural escalation including verbal and physical aggression, substance abuse, property damage or absconding without notifying support persons.
At page 9 of the report the author opines that, "Mr Stoll presents as a vulnerable individual who despite the support of his grandparents has been socially marginalised and apparently left to fend for himself to a large extent… It must be acknowledged that individuals with intellectual disability present with particular social vulnerability, including the potential for exploitation by others. Moreover, intellectual disabilities are associated with deficits in emotional and behavioural regulation and the higher order processes of planning, problem solving and consequential thinking." A little later in the report the author notes that the experience of custody is especially onerous for individuals with intellectual disabilities given that they are particularly vulnerable to exploitation or abuse by other inmates. The author recommends that the offender would benefit from a full-time residential rehabilitation program providing multidisciplinary care and stepped down discharge process.
At page 2 of the report by Ms Marks she notes that the offender has, "a significant cognitive deficit that affects all domains of function…" This confirms what is in the psychologist report on the issue of intellectual impairment.
Given the experiences of the offender in his formative years and the sexual assaults in the institutions clearly the principles enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 are enlivened reducing the moral culpability of this offender to a meaningful extent. Further, given the issue of intellectual disability Stoll's moral culpability is further reduced.
The principles enunciated by McClelland CJ at CL in DPP (Cth) v De la Rosa (2010) 79 NSWLR 1 at [177]-[178] are enlivened not only as I have already found reducing the moral culpability of the offender but also reducing the impact of general deterrence so far as the offender Stoll is concerned. In this regard I also note that part of the judgment of the plurality in Muldrock v The Queen [2011] HCA 39 at [54].
Stoll will need intensive and extensive supervision upon his eventual release. This supervision will need to be directed at effective reintegration into the community, and effective rehabilitation in respect of substance abuse issues. That rehabilitation program may well involve quasi-custody in the form of a residential program. There is also the issue as Ms Gumbert points out in her report issue of custody been more onerous for persons with intellectual disabilities. All of these issues combined lead to a reasonably generous finding a special circumstances so far as the offender Stoll is concerned.
Given the criminal history of the offender Stoll and noting that there was further offending while on bail for this matter, I simply cannot conclude on balance that the offender is unlikely to reoffend. Essentially for the same reasons I am unable to make a finding on balance that the offender Stoll has good prospects of rehabilitation. However, on the issue of rehabilitation much will depend upon the manner in which the offender engages upon his eventual release with the relevant agencies and authorities. In particular if he successfully completes a course of residential rehabilitation his prospects of long-term rehabilitation are much better it seems to me.
Mr Bouveng, counsel for the offender Stoll submits that the sentence imposed date from 9 September 2020. The offender was in custody from 14 June 2020 until granted bail on 18 November 2021. He was arrested on fresh charges and bail was once again refused from 13 February 2022.
Parole was revoked and a sentence of four months was imposed for fresh offences. Given the principle of totality I am of the opinion that the sentence so far as Stoll is concerned should commence at a slightly later date.
Turning now to the offender Smith, no psychological report was tendered. Oral evidence was given by his father Kevin Smith and his mother Kathryn Smith, to which I will turn shortly. A report dated 4 October 2022 from Mr David Post, a counsellor of Introspective Counselling was tendered and became Exhibit 4. That sets out the offender Smith commenced counselling sessions in 2018 as a means of dealing with some of his personal behaviours such as long-term drug use. The report sets out that the offender Smith had shown a willingness to work towards learning new strategies and taking appropriate opportunities. The offender misreported at a session in April 2020 that he had ceased all personal drug use. Mr Post regularly visited the offender Smith while he (Smith) was on strict bail conditions to check on his mental health.
Returning to the oral evidence, the offender's father gave evidence that the offender was the youngest of four boys. He attended local schools and completed year 10. He worked at the local abattoir until sustaining an injury with a knife to his left arm. The offender continues to have issues with limited use in his left arm because of this injury. The injury led to the receipt of compensation by the offender.
The offender then using the compensation payment began his own business at a motor vehicle repair shop known as Junee Panel and Paint. The business was operated by the offender for about 30 years. During that time the offender was involved in the community including sponsorship.
About 10 years ago the offender's father noticed a significant change in the offender's personality. It would seem that this was because of drug use he spoke to his son several times without apparent success. He was aware that in August 2016 police executed a search warrant at the business premises of his son, with the police being there most the day and the search receiving a lot of local publicity. The offender's father was also aware that the offender has split with his partner Sammy has two children. There are some issues relating to the offender having access or spending time with the children.
Mr Kevin Smith saw his son at Mannus Correctional Centre when he was first arrested. Would seem the offender found custody a most unpleasant experience, noting that was the first time he had been in custody.
My note and memory is to the effect that Mr Kevin Smith indicated that his son, the offender Smith, was very remorseful for what he had put him and his wife through. He was aware that his son was on strict bail conditions and he was aware that his son had to travel to Wagga to report daily. Whilst his son was on bail he noticed a change in his son's personality there were no longer any problems relating to drug use.
Bail was refused in respect of the offender Smith the day of the verdict of guilty. Mr Kevin Smith gave evidence that it has been difficult to visit his son.
An issue that is relevant to all offenders is the COVID-19 pandemic. Lockdowns have been longer and more frequent, there has been the severe restriction and even cessation of face-to-face visits, inmates have to isolate upon being moved from one institution to another, and there are limits on courses that inmates are able to undertake whilst in custody. All of this goes to make custody more onerous. I have regard to and take into account decisions such as Valentine v R [2020] NSWCCA 116, Mbele v R [2021] NSWCCA 182 and Toller v R [2021] NSWCCA 204.
Ms Kathryn Smith, the offender's mother also gave evidence. She assisted her son with the book-keeping when he commenced his business. She became aware in early 2016 that her son was using drugs. She attempted to talk to him in order to get him to give up drugs. She too was aware of the raid on her son's business premises in August 2016. The evidence continued that her son reacted badly to the search of his premises and in particular react badly about the local publicity that the raid generated. She said that her son was "very agitated" towards authority particularly the police. The police continued the surveillance of the offender's Smith's business premises which again caused further anger towards the police.
Ms Smith gave evidence of her son saying he was still using drugs at that time. She also gave an account of her son taking up with the offender McGrath and she was aware of domestic violence. She too noticed a difference when the offender was released on bail. The offender said to her upon his release on bail that he will not touch drugs again and he will not go near his old friends. Ms Smith also gave evidence that her son was very distressed for her and her husband while he (the offender) was in custody.
After he was released on bail in early April 2021 the offender obtained employment with Douglas Aerospace near the airport at Wagga Wagga. Exhibit 3 on sentence is a letter from Smith's employer speaking well of the offender's work ethic and ability. Mr Clarke would be prepared to employ the offender Smith in the future.
Exhibit 5 on sentence (for the offender Smith) is a series of results of drug tests indicating negative results.
Reasonable minds might differ in this matter on the issues as to findings relating to the prospects of rehabilitation and the unlikelihood of reoffending so far as the offender Smith is concerned. There are some very positive signs not the least of which is the stated desire to remain abstinent from illicit substances and not to return to his old associates. There is also the fact that he obtained employment for the period of time he was on bail. He also complied with what were undoubtedly very strict bail conditions. With some minor hesitation, which relates essentially to drug use and his associates, taken with the degree of planning involved in the offending for which he appears for sentence, I am prepared to find on balance that the offender Smith is unlikely to reoffend and that he has good prospects of rehabilitation.
The offender Smith also submits that he is entitled to some consideration by way of backdating of the sentence to be imposed because of what is submitted are onerous bail conditions. Exhibit 6 is a copy of the bail conditions to which the offender Smith was subject. Initially they provided essentially for what might be referred to as house arrest type bail apart from when he was attending employment or prearranged medical or legal appointments. There was also a condition that had the effect that he could not enter the Township of Junee. A surety with deposit of $10,000 was also a condition of the bail.
I accept that these were onerous bail conditions and they would have severely limited the freedom of movement of the offender. Given the decisions of the decisions of R v Anderson [2012] NSWCCA 175 and Hoskins v R [2016] NSWCCA 157 I am of the opinion that it would be appropriate to allow backdating of the sentence to be imposed to take into account the strict bail conditions to which the offender was subject. Rather than allow a percentage as has been done in some cases I am of the opinion that it is appropriate to back date the sentence for Smith by 4 months to take into account those bail conditions.
On this issue I note that the offence with which the offender was charged was a particularly serious one, carrying as it does a maximum penalty of 25 years imprisonment. Given the messages which are extracted earlier in these reasons the case against the offender Smith was always relatively strong.
I understood Mr Heazelwood to make submissions to the effect that the offender Smith also suffered from a psychological condition. Further, I understood the submission to be that I could take that into account as part of the overall subjective mix. In particular Mr Heazelwood relied on the letter from Mr Post to ground the submission that his client was suffering from a psychological condition. Exhibit 4, the letter from Mr Post sets out that the offender Smith consulted Mr Post for professional counselling for issues relating to long term drug use. I am not persuaded that anything in Mr Post's letter rises to a diagnosis of any psychological condition.
In the absence of any expert opinion, I am not prepared to make a finding on any possible psychological condition from which the offender Smith may have been suffering at the time of the offending or since.
I understood Mr Heazelwood to submit towards the end of his oral submissions that I should find that the offender Smith is remorseful given the evidence of his parents. With respect I do not see anything in the evidence from either of the offender's parents that would justify a finding on balance that the offender is remorseful. A statement to the effect that he will not touch drugs or go back to his old friends is hardly an expression of remorse for the criminality in which he engaged and of which he was convicted by the jury.
I have no note or memory of any submission being made on behalf of Smith so far as a finding of special circumstances is concerned. However, noting his age and that this is his first time in custody, the COVID-19 pandemic and the need for supervision on release to ensure his proper and appropriate reintegration into the community I will make some allowance of special circumstances so far as Smith is concerned.
I now turn to the subjective case for the offender McGrath. No oral evidence was called from or on behalf of the offender McGrath but Mr Roff, counsel for the offender read a comprehensive affidavit sworn by Michael Bowe, his instructing solicitor. That affidavit contains the subjective case, and what follows is drawn from that affidavit. McGrath was 34 years of age at the time of the offending and is 36 at the time of sentence.
The first four years of her life were spent travelling in a caravan with her parents. Both parents drank alcohol to excess and both abused cannabis. She witnessed her father being violent towards her mother on many occasions. When she was 11 her father was imprisoned for domestic violence offending. She attended a number of schools. Her mother was violent towards her, especially when her mother had been drinking. The offender's family moved to Wagga Wagga when she was part way through Year 8 and she was expelled from school in Year 10. Accordingly, she has a limited formal education.
The offender met "Greg" while in Gundagai and had three children with him, those children being born in 2004, 2007 and 2014. Both the offender and "Greg" were heavy drinkers. He was physically violent to the offender on numerous occasions. Apart from alcohol both also "dabbled" (to use the word in the affidavit) with cannabis and methamphetamine and Greg also sold methamphetamine. They separated in 2016.
The offender's children were removed, presumably by DOCS. Her own drug use escalated and she found herself homeless until her father was able to assist. Her father died in 2019
McGrath met the victim Timothy Orr in 2018 and it seems that when they initially met the victim was selling drugs. The offender McGrath and the victim Orr had a dysfunctional relationship characterised by abuse of drugs and physical violence. The victim admitted this in cross-examination at the trial. Some of the violence occurred in front of the child Kaden. The child Kaden was placed in the care of the victim after the offence.
The COVID-19 pandemic has also affected the offender, as it has anyone in custody.
McGrath expresses an intention to reunite with her children. She has seen a psychologist and has received some counselling for past trauma. Clearly, she will need further counselling.
Clearly, so far as the offender McGrath is concerned the factors enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 are enlivened to a reasonably significant extent, reducing the moral culpability of the offender. Mr Roff in his written submissions puts that McGrath's moral culpability is reduced "somewhat". I agree with that assessment. Further, the contents of the affidavit also go towards a finding of special circumstances. The offender will need an extended period of supervision to ensure that she is properly reintegrated into the community but also the supervision will be necessary to ensure that McGrath properly engage with the appropriate counselling for the issues set out in the affidavit. This is also her first time in custody.
So far as the offender McGrath is concerned there is nothing on which I could make a finding on balance that she is remorseful. She has a limited record but was subject to Community Corrections Orders at the time of this offending. She has some unresolved issues that require counselling. However, she has engaged in some counselling. Counsel put and I accept that the offender McGrath has obtained work at Dillwynia Correctional Centre in the garden. She has the motivation of wanting to be reunited with her children.
Reasonable minds may differ on findings as to the likelihood of reoffending and the prospects of rehabilitation. There are some very positive signs. However, at this point in time I am not prepared to make those positive findings (i.e. be unlikely to reoffend and having good prospects of rehabilitation) at this point. Much will depend on the manner in which the offender engages with the appropriate agencies and authorities upon her eventual release.
In his written submissions Mr Roff put that the appropriate disposition would be an Intensive Correction Order. That submission was abandoned at the sentence hearing. Although it was abandoned, for the sake of completeness I am of the very firm opinion that the total sentence would exclude the possibility of it being served by way of Intensive Correction Order. Further, I am also firmly of the opinion that the offending is simply too serious for that leniency to be extended to the offender. In arriving at that conclusion I rely on the authorities of Quinn v DPP (Cth) [2021] NSWCA 294 and Thurlow v R [2022] NSWCCA 20.
The issues of commencement date of the sentence and parity will be dealt with later in these reasons.
I now turn to the subjective case for the offender Triffit. No oral evidence was called by or on behalf of the offender, however, Mr Hart, counsel for the offender tendered exhibit 10, a report by Mr Peter Watt, Psychologist. I will initially go to that report.
The offender Triffitt was born in Albury but grew up on a farm at Gumly Gumly, a locality slightly to the east of the city of Wagga Wagga. As a young infant he was diagnosed with Echovirus Type II which was apparently acquired from sewerage leaking into a sandpit in which he was playing. The disease had polio type symptoms causing paralysis on the left side of his body and muscle wastage. He underwent three surgical procedures, one at 8, another at 10 and another at 14 years. At p 6 of the report Mr Watt sets out that the disease is debilitating.
The offender Triffitt had a limited formal education having completed Year 9 at TAFE. He commenced an apprenticeship as a welder. His TAFE teacher invited him to travel to Western Australia where he worked as a fly in/fly out position at the mines. He qualified as a welder at the age of 23. He went on to work in Queensland as a welder on a gas pipeline.
Triffit commenced a relationship that lasted about 6 years. Two children were born in that relationship, and they are now aged 9 and 7 years. The relationship ended apparently because of the offender's extended absences for work. He commenced another relationship and had two further children. He and his second partner regularly used methamphetamine. After separating from that relationship he commenced another with a young lady who worked at a bank. There was one child of that relationship. He was unfaithful while using methamphetamine and another child was born. He formed another relationship in 2021 and that relationship is apparently still on foot.
Mr Watt's report sets out that the offender reported being physically abused by a female teacher at primary school. After the break up of his first relationship he spent a week at the psychiatric ward of the Wagga Wagga Base Hospital.
The offender Triffit commenced using alcohol at 14 years of age and that developed into binge drinking. It seems that alcohol is no longer an issue. He was introduced to "ice" i.e. methamphetamine at the age of 26 and the habit developed to him smoking that substance on a daily basis until May 2022. He has experimented with cocaine.
Mr Watt opines that the offender Triffit suffers from a Major Depressive Disorder, Stimulant Use Disorder and Unspecified Stimulant Related Disorder, methamphetamine. He also opines that those conditions are "considered pertinent and worthy of clinical attention.
However, there is nothing in the report to suggest that the offender Triffit was suffering from those conditions at the time of the offending or that there is any causal connection between any of those conditions and the offending.
Further, Mr Watt goes on to opine that the offender's main problem in recent years has been methamphetamine use. He strongly recommends that the offender seek out drug and alcohol treatment and rehabilitation programme once released to parole. The offender would also benefit from treatment for depression through medication.
Clearly the physical and mental conditions suffered by the offender Triffit are all part of the overall subjective case.
There is a case for a finding of special circumstances so far as Triffit is concerned. He too will need some assistance in properly reintegrating into the community but moreover he will need an extended period of supervision to ensure that he receives the appropriate counselling and treatment for substance abuse issues.
At the sentence hearing the offender Triffit was supported by a significant number of friends and family. Clearly, he does enjoy family support and that support will continue on his release from custody. His present partner was unable to be present at the sentence hearing but it was indicated that she wishes to continue with the relationship.
There is nothing on which I could make a finding that the offender Triffit is remorseful. Given his record, the breach of conditional liberty and the substance abuse issue I am not prepared to make a finding that he is unlikely to reoffend. The offender has had a substance abuse issue for some time. I am not prepared to make a finding at this point that there are good prospects of rehabilitation. Despite the family support that he enjoys much will depend on the manner and extent to which the offender engages with the appropriate agencies upon his release from custody.
At the risk of repetition but for the sake of completeness the COVID-19 pandemic has affected the offender Triffit as it has with all persons in custody in the manner in which I have set out earlier in these reasons.
Mr Hart submitted that the offender Triffit has also been subject to onerous bail conditions and relying on the authority of R v Quinlan [2021] NSWCCA 284 submitted that the offender Triffit was entitled to some consideration by way of backdating because of what were said to be onerous bail conditions.
Upon investigation (my Associate consulting JusticeLink), counsel not having to hand the bail conditions in respect of which he was making the submission, it was found that what were said to be onerous bail conditions involved reporting conditions and a curfew. I am of the opinion that the bail conditions under consideration in Quinlan were more restrictive than those to which the offender Triffit was subject.
Price J in Quinlan said at [87]-[89]: "[87] Section 20A of the Bail Act 2013 (NSW) provides the general rules for the imposition of bail conditions to address identified bail concerns. Bail conditions imposed in accordance with s 20A will not ordinarily be considered to be "quasi-custody" so as to justify a lesser sentence or the backdating of a sentence as the condition(s) imposed will ordinarily be reasonably necessary to address a bail concern (s 20A(2)(a)), and reasonable and proportionate to the offence (s 20A(2)(b)), and appropriate to the bail concern identified (s 20A(2)(c)), and no more onerous than necessary to address the bail concern identified (s 20A(2)(d)), and reasonably practicable for the accused person to comply with the condition (s 20A(2)(e)). Most bail conditions restrict a person's liberty in some way. [88] Nevertheless, there will be occasions when bail conditions are so harsh or restrictive that they may require a conclusion that at least some part of the period on bail should be treated as the notional equivalent of custody, conveniently referred to as "quasi-custody". The onus of establishing whether an offender's bail conditions amount to quasi-custody falls on the offender on the balance of probabilities. As Garling J explained (with the concurrence of Basten JA and myself) in La v R: [42] '[43] A sentencing court is entitled to take into account any conditions of bail granted to an offender awaiting sentence where those conditions may be particularly harsh or restrictive. Such terms are often referred to as "quasi-custody". Prior to a court taking into account conditions of quasi-custody as a basis for reducing a sentence, or commencing a sentence from an earlier date than it otherwise would have, there has to be an evidentiary foundation to establish the nature, kind and effect of any restrictions: see Bonett v R [2013] NSWCCA 234 at [50] where Adamson J said: "Whether restrictions outside of gaol amount to quasi-custody is a question of fact: see for example R v Cartwright (1989) 17 NSWLR 243 at 258 per Hunt and Badgery-Parker JJ and R v Serratore [2000] NSWSC 696 per Kirby J at [31]-[35]. The weight to be given to any such quasi-custody in reducing the sentence imposed is a matter for the discretion of the sentencing Judge. Although quasi-custody may be a relevant consideration it is not a mandatory relevant consideration. However, in circumstances where there is an evidentiary foundation for its being taken into account, the sentencing Judge may be obliged, in some circumstances, to have regard to it even when not specifically asked to."" (emphasis in original) [89] An assessment of whether a person's bail conditions amount to quasi-custody and whether and to what extent an allowance is made by backdating the sentence is a discretionary decision to be made by the sentencing judge in light of the particular facts and circumstances of the case. Such a decision is only reviewable by this Court in accordance with the principles of House v The King.'"
I also note the earlier decisions of R v Anderson [2012] NSWCCA 175 and Hoskins v R [2016] NSWCCA 157. In R v Anderson Davies J (Allsop P as his Honour then was agreeing with additional comments, Campbell J agreeing and with the additional comments of Allsop P) said at [41]-[45]: "[41] The Crown accepted that in appropriate circumstances an allowance can be made for periods on bail. Most of the cases which have dealt with this have involved rehabilitation "custody" by virtue of the offender being within a residential rehabilitation program: R v McHugh (1985) 1 NSWLR 588; R v Douglas (unreported, NSWCCA, 4 March 1997); R v Eastaway (unreported, NSWCCA, 19 May 1992); Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155; BJT v R [2011] NSWCCA 12; R v Delaney [2003] NSWCCA 342, (2003) 59 NSWLR 1. [42] In Hughes Grove J (with whom McClellan CJ at CL and Simpson J agreed) said: '[38] It is appropriate for an offender to receive recognition and credit for time spent in rehabilitation which has been productive: R v Eastaway (unreported, NSWCCA 19 May 1992). An allowance of approximately 50% of the credit that would be given in respect of pre-sentence custody has been endorsed: R v Douglas (unreported, NSWCCA 4 March 1997). Pre-sentence custody and the similar concept of rehabilitation "custody" is preferably catered for by backdating of the commencement date of sentence: R v McHugh (1985) 1 NSWLR 588.' [43] Once it is accepted that it may be appropriate in some circumstances to give a discount of 50% in respect of bail conditions the determination of what an appropriate discount might be in a given case is a discretionary judgment for the Sentencing judge. Accordingly, an error of the type referred to in House v The King (1936) 55 CLR 499 must be shown. [44] Although the Respondent was not in what has been called rehabilitation custody the practical effects of her bail conditions were onerous. She was required to reside in a small town, was unable to leave it (except to attend court or legal conferences) and was subject to a curfew. Those conditions meant that she was unable to find employment (because of the limited job opportunities in such a small town) and was unable to further her rehabilitation because no facilities were available. [45] Her Honour's approach to the Respondent's bail conditions was a lenient one. She did not, however, make any error of fact or law, she did not take account of irrelevant matters and she considered relevant matters. The result, whilst generous, was not plainly unjust nor unreasonable in the sense that it reduced the sentence to a level insufficient to reflect the objective seriousness of the offending: Delaney at [35]; Truss v R [2008] NSWCCA 325 at [21]."
At the sentence hearing I inquired of counsel for Triffit as to where was the evidence of the impact on the offender of the bail conditions. He replied with words to the effect of, "There isn't any".
Since the sentence hearing the court has received an affidavit from Mr Keane, solicitor instructing Mr Hart for the offender Triffitt. With respect, that material should have been available to the court and should have been served on the Crown before the sentence hearing, particularly noting that counsel clearly intended to make a submission on the onerous bail conditions.
The offender Triffitt maintains that he has suffered hardship as a result of the bail conditions. Paragraph 8 of Mr Keane's affidavit sets out that he was unable to follow employment as a fly in/fly out worker in Western Australia. I accept that this is a hardship as a result of the bail conditions. The other hardship relates to conflict with his domestic partners during the period he was on bail and an inability to socialise with his mates. It was more difficult to spend time with some of his children.
However, the offence with which Triffit was charged was one that carries a maximum penalty of 25 years with a standard non-parole period of 7 years. Noting that the offending occurred in the early hours of the morning the curfew was not inappropriate. The bail conditions were not particularly onerous but I accept that particularly so far as employment is concerned there were some hardships. I observe that the other bail conditions to which Triffit was subject were not unreasonable. But for the decision in Quinlan, I would not have been minded to make any allowance by way of backdating of the commencement date of the sentence. However, in light of that decision I will allow a back date of 2 months to recognise the issue relating to the conditions of bail.
Mr Hart's primary submission was the sentence imposed on the offender Triffit would be two years or less and should be served by way of Intensive Correction Order. What follows is a repeat of the observations I made in R v Elphick [2021] NSWDC 1 at [89] ff: "[89] There has been a considerable amount of litigation on intensive correction orders, the latest decision (at least at the time of the preparation of these reasons) being Wany v DPP [2020] NSWCA 318. The controversy (for want of a better word) commenced with the decision of R v Pullen [2018] NSWCCA 264. Thereafter there was R v Fangaloka [2019] NSWCCA 173, Casella v R [2019] NSWCCA 201, Karout v R [2019] NSWCCA 253 and Cross v R [2019] NSWCCA 280. Fangaloka and Karout were subject to applications for Special Leave to the High Court - see [2020] HCASL 12 and [2020] HCASL 56 respectively - with both applications separately being dealt with "on the papers" with Gordon and Edelman JJ concluding in Fangaloka that "…The Application does not give rise to any reason to doubt the correctness of the decision of the Court of Criminal Appeal…". In Karout Gordon and Edelman JJ concluded that "…The proposed grounds…have insufficient prospects of success to warrant a grant of special leave". [90] The doctrine of precedent dictates that judges at first instance should follow Fangaloka and Karout. [91] Basten JA (Johnson & Price JJ agreeing) in Fangaloka said at [65]-[66]: "The better view is that the legislature has, appropriately, acted upon the available evidence by requiring the court to have regard to a specific consideration, namely the likelihood of a particular form of order addressing the offender's risk of reoffending. That obligation, imposed by s 66(2), is not stated to be in derogation of the more general purposes of sentencing outlined in s 3A, nor in derogation of other relevant matters: s 66(3). Nor does the legislation limit the consideration of community safety to a means more likely to address the risk of reoffending; it merely identifies that as a mandatory element for consideration. [66] There is no doubt that community safety can operate in different ways in different circumstances. It is conventionally accepted that a purpose of punishment, including by way of imprisonment, is to deter the offender from further offending; it is also accepted that removal of an offender from the community for a period may have a protective function. The purpose of s 66, on this approach, is merely to ensure that the court does not assume that fulltime detention is more likely to address a risk of reoffending than a community-based program of supervised activity. Consistently with that view, s 66 does not seek to address potentially conflicting demands of community safety in the short term, as opposed to the longer term, and the risk that leniency will be abused. In short, there is nothing in s 66 which favours an ICO over imprisonment by way of fulltime custody. Further, while s 66 expressly referred to s 3A, it did so, not by identifying it as a set of "subordinate" considerations, but as mandatory considerations. It would be wrong for a court to treat every consideration other than the means of addressing the risk of reoffending as a subordinate consideration." [92] Hoeben CJ at CL agreed with the judgment of Fullerton J in Karout with Brereton JA dissenting. Fullerton J said at [90]: "Adopting and applying that analysis (with which I agree), I consider that were the Legislature to have intended to impose on sentencing courts an obligation to give paramount consideration to community supervised programs as a means of ensuring community safety as one of the purposes of sentencing in s 3A(c) of the Sentencing Act, or to impose on a sentencing court a statutory obligation to give reasons for concluding that the other purposes of sentencing in s 3A, alone or in combination, dictate that even where the offender's risk of reoffending is such that community protection can be sufficiently addressed by an ICO, a sentence of full-time custody is the appropriate sentencing outcome, I would have expected the Legislature would have made that plain when the 2018 amending Act was passed." [93] Her Honour went on to say at [94]: "The fact that his Honour made positive findings as to the applicant's good prospects of rehabilitation and that he was unlikely to reoffend, findings which might, in addition to a finding of special circumstances, have supported the exercise of the power in s 66 for the making of an ICO, did not dictate that an ICO was the appropriate sentencing outcome. Consistent with the obligation in s 66(3) that his Honour also take into consideration the purposes of sentencing in s 3A of the Sentencing Act and any relevant common law sentencing principles, it is clear that in declining to make an ICO the objective seriousness of the applicant's offending and the principles of general deterrence (being amongst the mandatory considerations his Honour was obliged to consider under s 66(3) in deciding whether the power to make the ICO should be exercised) overwhelmed other considerations that were in play."
Since that decision was handed down there have been the decisions referred to earlier in these reasons of Quinn v Commonwealth Director of Public Prosecutions and R v Thurlow. The effect of Quinn is that Wany v DPP has been disapproved. Bellew J (Johnson & Davies JJ agreeing) in Thurlow said at [32]-[33]: "The sentencing judge concluded, having regard to (inter alia) the purposes of sentencing in s 3A of the Sentencing Act, the objective seriousness of the offending, and what was described as a "serious assault on the justice system", that the applicant should serve a period of full-time custody, and that no other sentence (including an ICO) was appropriate. So much is clear from the penultimate paragraph of her Honour's reasons set out at [21] above. [33] Once her Honour reached that conclusion, any consideration of s 66(1) and (2) of the Sentencing Act became entirely unnecessary. So much is clear from the judgment of Simpson AJA (with whom Johnson J agreed) in Quinn v Commonwealth Director of Public Prosecutions where her Honour said the following: '[186] The flaw in the applicant's argument is that it assumes, wrongly, that the criteria stated in sub ss 66(1) and (2) override, or at least precede, all other considerations. The truth is that, logically, the sub ss 66(1) and (2) criteria come into play at the end, not the beginning, of the process. If, in the opinion of the sentencing judge, any of the considerations in s 68, s 4B, or s 3A foreclose making an intensive correction order, sub ss 66(1) and (2) become otiose, and it is unnecessary for the sentencing judge to direct attention to them. [187] In this case, it was the seriousness of the offending that brought the consideration of making an intensive correction order to an end. Once the primary judge concluded that the offending was too serious to be dealt with by way of a sentence served otherwise than by way of full time imprisonment, considerations of community safety (in the context of s 66) did not arise. It may be observed that s 66(1) requires community safety to be taken into account as the paramount consideration when a court is "deciding whether to make an intensive correction order". Where a court has concluded, having regard to the relevant material, that the seriousness of the conduct precludes such an order, there is no further decision to be made.'"
The High Court has announced that the appeal in the matter of Stanley was upheld. However, at the time of that these reasons were delivered the High Court had not delivered reasons for that decision. Accordingly, the Court can only proceed on the law to date.
Returning to Mr Hart's submission even if the sentence was two years or less, which in my view it cannot, sections 66(1), 66(2) and 66(3) of the Sentencing Act need to be considered. Triffit was subject to an ICO at the time of this offending. I am firmly of the opinion that full time custody will more appropriately deal with the issue of the risk of re-offending. Noting the fact he was subject to an ICO at the time of the offending I am of the view there is a very real issue of public safety. Then, there are general sentencing principles including general deterrence. Further, in the matter presently under consideration I am firmly of the opinion that the offending is simply too serious to warrant the extraordinary leniency of Triffit serving his sentence by way of Intensive Correction Order.
The offender Triffitt is also able to rely on assistance pursuant to s 23 of the Crimes (Sentencing Procedure) Act. In this regard Triffitt relies upon a confidential affidavit that became exhibit 11 on sentence. That material remains in a sealed envelope.
Section 23 of the Crimes (Sentencing Procedure) Act relevantly provides: 23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters - (a) (Repealed) (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) (Repealed) (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must - (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons - state the amount by which the penalty has been reduced for each reason. (5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.
The assistance relates to the recovery of stolen firearms following the arrest of Triffitt in respect of Driving While Disqualified and him being refused bail. The firearms were recovered and two of them were prohibited firearms. No arrests were made nor do the police expect any to be made. The offender refused to give any further assistance given that the police would not consent to the lifting of the curfew conditions of his bail. The police officer providing the material sets out that there was no forensic evidence, which I presume to be a reference to fingerprints or DNA, found on the firearms. Police acknowledge the seizure of the firearms is of benefit to the community.
The significance of the assistance is the recovery of four firearms, two of which are prohibited weapons. That also deals with the nature and extent of the assistance. Given that the firearms were recovered clearly Triffitt was being truthful about the firearms. The timing of the assistance coincided with an application by Triffitt to have his bail conditions relaxed. There is no suggestion that Triffitt will suffer harsher custodial conditions and even if there was such a suggestion there is no evidence of that. There is no suggestion of any injury to the offender or his family or any threat of such injury. The assistance relates to unrelated offending.
Mr Hart submits on behalf of the Triffitt that the assistance is worth a numerical discount of 10%. I have a note and memory to the effect (which I accept may be inaccurate) that the Crown submitted at the sentence hearing that the assistance was worth no more than 10%. In his supplementary written submissions Mr Hart puts that the Crown did not necessarily agree that 10% should be allowed but the Crown did not submit any lesser discount. I note the authorities on the subject of assistance including R v Sukkar (2006) 172 A Crim R 151, FS v R [2008] NSWCCA 301 and R v AD [2008] NSWCCA 289; (2008) 191 A Crim R 409. In the circumstances at the risk of erring on the side of generosity I will allow a discount of 10% to Triffitt for assistance. I accept however that 10% is very much the upper end of the range for the assistance that was given.

R v STOLL; R v McGRATH; R v SMITH; R v TRIFFIT

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