R v Tang

Disputed facts

1. For reasons that will follow my view is that the parties are not very far apart in their contentions as to what facts should be found. In broad terms the areas of dispute could be described as whether or not the facts show a basis for a submission relying upon provocation and if so to what extent, whether the victim moved his car forward before the assault, what was intended by the victim moving to exit his vehicle, what caused the assault to end, and what should be made of the text messages set out at [46] of the statement of agreed and disputed facts that survived objection.
2. The Crown relied on evidence of the victim, Mr Douglas ("the victim") and evidence of a witness Mr Jones. The offender gave evidence and also relied on the evidence of Ms Liang.
3. The evidence of the victim was that about 9:50 AM he was on The Crescent, a road in Pennant Hills. His car was stationary and the engine was running and he was looking for the cheapest place to buy petrol, I infer by looking at an app on his phone. He was approached by Ms Liang. She indicated to him a request to move forward a small distance which she indicated by her fingers to be approximately 7 cm. The victim said he said "for fuck's sake" and that Ms Liang "went off her chops". The victim's evidence was that he was then asked by her what he said and he repeated "for fuck's sake" and he said she asked again and he said "fuck off". The victim's evidence was that he had already moved the car about a foot and a half.
4. The victim said that Ms Liang then went to her partner, (the offender), in the car behind him and that the offender got out of the car and approached the victim's car. The victim took off his seat belt and opened his car door.
5. The victim turned to the offender and asked him why are you trying to be a "tough cunt" and the offender said "step out and we'll see who's tough". The victim said he decided to step out of the vehicle so as to raise his "peacock feathers" though when asked to repeat that answer (and the answer had been somewhat garbled by technology issues, which was a bane of this case) said that he was going to try and resolve it calmly. At this point the offender grabbed him with his left hand and "hoed" into him with his right hand and said he managed to climb out of the car whilst getting beaten. He said he was punched by the right hand 10 - 12 times, that he was completely fazed and tried to defend himself. He grabbed the offender, and grabbed the offenders chain around his neck and that came off. He said he was trying to keep him at arms length. He said someone said it looks like he has had enough and the offender also asked for his chain back. He said he was squirted with water and heard the female say "take that little uber boy".
6. In cross examination he agreed that there was a tap on the window when he was asked to move forward by a female and he agreed that he used the offensive language set out above.
7. The point was made in cross examination that he had not previously said that he had moved the car forward. He said it was not possible that he did not move the car forward. He said it was not brought up in the interview when he gave his statement to police and said he does remember it as he said the words "for fuck's sake" and then moved forward. It was after having moved forward that he then said "fuck off" and wound up the passenger-side window.
8. He admitted he was annoyed because the woman had not said please.
9. He was asked why he thought it was necessary to get out and he said that if there was an altercation then with the door open he would have a chance to get out. It was put to him that he could avoid an altercation by winding up his window and he again said that he wanted to have a way to get out if he was attacked. He agreed there was nothing to stop him driving away. It was put to him that he wanted to express his annoyance with the female and he again said he opened the door to give himself a means of escape.
10. It was put to him that his words to the offender of "trying to be a tough cunt" and his stated intention to try and calmly resolve the situation were contradictory and he denied that. It transpired that the victim held a black belt in Aikido and he said he was not looking for a fight and would have been able to control the situation. This he said would include physically subduing the offender which he said was not the same as fighting. He says that he was hit by the offender when he had looked away to get out of the car and was taken when not looking. He said he wanted to control the situation without violence and that he does not "take shit" from anyone.
11. In this cross examination it was agreed that it was at the time that part of his body, namely his leg, was out of the car that he felt the first punch. He said he was trying to get out of the car to push the offender away and that he was pushing the offender away not pulling him in. He agreed he pulled off the necklace but was not trying to pull the offender in close.
12. A witness Mr Jones was driving down The Crescent at about 9:56 AM and saw two men fighting, being the offender and the victim. He approached the two men and said one was basically standing up and fighting the other guy who was in the car. When asked what he meant by a fight he said the offender was punching the other man and was holding on to him, punch after punch and it was not a fight but more of a "bashing". He said the other guy was not able to throw a punch because he was sitting in the car. He said it lasted about 30 seconds and he yelled out something like "stop that" and then further approached and it stopped. When asked if he touched somebody he said he may have moved the offender back a bit.
13. I accept the submission of the offender that the offending stopped without the witness needing to touch anybody for the witness said that it was when he further approached that the fighting stopped. Mr Jones said that the victim threw a necklace at him which he gave back to the offender. He said there were multiple punches, maybe dozens, being a reference to the punching by the offender.
14. In cross examination Mr Jones was asked what the offender had said as to why this had occurred and the offender said that the man had sworn at his girlfriend.
15. The offender gave evidence. The offender said that he had pulled up behind a car and that he was going to the gym and where they normally park can fit two cars, which was where the offender was, and he asked his girlfriend to ask the victim to move forward. She did so and he could see that there was a reaction on her face which he said she looked shocked. She told the offender that the guy had said "fuck off" and was being really rude. This he said caused him to approach the driver's side door. He said he felt he had to say something or it would escalate. He said he had no intention of doing anything; he said his plan was to see why his girlfriend was upset. His evidence that the victim asked "are you trying to be tough cunt" was consistent with the victim's evidence including the offender then saying "step out" and "we'll see who is tough".
16. The offender said he then observed the size of the victim who looked angry and pissed off, causing the offender to think that he was about to be attacked leading to him throwing a punch into the face of the victim. The victim then grabbed the offender. A dispute here is whether the victim had his hands around the offender's neck or whether the victim had his hands grabbing onto the offender's and necklace. Seven photographs were exhibited by the offender showing the injuries suffered by him. They show minor scratches on the neck and the cheek and under the chin and next to his nose, and most significantly what appears to be a significant contusion around the neck area, predominantly on the left side. In my view these photographs do no assist the offender; the injuries are consistent with the set upon victim attempting to defend himself and the markings around the neck are from holding tightly onto the necklace before it broke.
17. There was some issue as to whether the victim was seeking to push away the offender or bring him in closer to him. As a matter of logic it must be that he was pulling him towards him in order to exert the leverage that led to the neck injury but I do not consider the matter rests there. I find that the purpose of the victim engaging with the offender, who had just struck him with a closed fist to the face, was to fend him off and it is reconcilable that in holding the necklace tightly around the neck of the offender the victim was also trying to push the offender away. In order to gain sufficient leverage to achieve the stated aim of pushing the offender away, there is a need to pull on the necklace. In any event, what is occurring, even if it is the pulling contended for by the offender, is a defensive manoeuvre.
18. The offender seeks to rely favourably on the fact that things stopped when his necklace broke. By that time there is a third-party upon the scene and there has been resistance by the victim in the manner just described. I do not think the discontinuation of what was happening at that time shows the offender in any significantly mitigating light. Whilst this was happening on the offender's own evidence he kept on punching because he did not wish to be in the car of the much bigger man. I accept Mr Jones evidence that this was not so much a fight as a bashing.
19. In cross examination the offender said that Ms Liang looked shocked and her voice was not normal and that she had told him the words that the victim had used to her as set out above. He decided to get out of the car and approach the victim. He strongly disagreed that he could have missed the car moving forward as he went to get out of the car. He agreed he could have simply driven away with Ms Liang. He said he was calm though he was no longer calm when the victim asked him "so you think you're a tough cunt". He could not say when the seatbelt was undone. He denied being aggressive when he said step out and we'll see who's tough. He frankly conceded the offending behaviour though added that the victim could not get punches in so he resorted to the pulling referred to above. He said that he punched the victim when he was in the motion of coming out of the car and he was not fully out of the car. He maintained he was choked, including by the bare hands of the victim. He confirmed the injuries shown on the photographs were suffered from this altercation.
20. As to the admitted parts of the text messages at paragraph 46 of the statement of agreed and disputed facts he sought to explain them as exaggerated bravado. He conceded that the matter could have been avoided if he had a better ego but then maintained that there was definite provocation.
21. Ms Liang gave evidence by way of affidavit on which she was cross-examined. Her account of the incident is largely consistent with the versions of both the accused and the victim at least so far as to the leading up to the offending. She says she saw the victim trying to pull the offender into the vehicle which I do not accept because she cannot know what the intention of the victim was. I accept that she saw him fact pulling him. In my view the victim was simply trying to defend himself as discussed above.
22. In cross examination she agreed that she raised her voice and that she told the offender what had occurred which was largely as recounted by the victim save that she was not so agreeable as to herself using bad language other than raising her voice. She said that when the offender said step out we will see who is tough. She said the offender was not aggressive but a little worked up. That seems to me to be a rather fine distinction and in my view is seeking to lessen the significance of what the offender did. She said that she and the offender were angry at the victim. She then agreed that the offender had been aggressive to the victim but that he was asking for it. She said a third party intervened and by that time they were not fighting any more. When asked about the bare hand choking she said that he was holding the necklace and there was grappling everywhere which she demonstrated by fluttering her hands. With respect that seems to me a fairly accurate statement. She denied squirting any water or calling the victim "little uber boy".

Findings re disputed facts

1. In making the following findings I direct myself that to make a finding adverse to the offender the onus rests on the Crown to establish the matter beyond reasonable doubt. Further in assessing the evidence of the witnesses I direct myself that it is open to accept the whole or to reject the whole of the witnesses evidence or to accept part of it and reject other parts of it if there is a logical and rational basis to do so.
2. I make the following findings: 1. As already noted there is a large degree of common ground in this evidence. In overall terms what has occurred here and I find is that the offender and Ms Liang wanted to park in a certain position and to that end asked the victim to move his car a very short distance forward. Just why the measure of 7 cm would make any difference is a matter left unanswered by the evidence. The victim responded in a rude way and indeed in an excessively annoyed and obscene way. There is no suggestion of Ms Liang swearing at him prior to him initially ignoring and then swearing at her. I do not find that she thereafter remained calm and indeed on her own evidence her voice was raised. I find that Ms Liang had become upset. 2. I do not make a finding adverse to the accused that the car had moved forward. This is because it was not a matter canvassed in the police statement. That said I do not think that the victim is a person who was giving deliberately false evidence. His frank concessions about what he did and what he said and that he was not going to back down were not matters that show him in a very good light. The fact that I reject this one piece of his evidence in my view is not a matter which would lead me to reject his evidence in other significant respects and I do not. 3. I do not make a finding that the victim was seeking to bring the offender into his car. I find that the offender punched the victim in the face as the victim was in the process of exiting his car, and at the point where the door was open and the victim had one foot on the ground. Upon this happening the victim very understandably sought to protect himself and reached out to grab whatever he could of his assailant to that end. This was well described by Ms Liang, and in the fluttering of arms he managed to get purchase around the neck area including the shirt and the necklace. I find that he was trying to get out of the car as he said and was trying to somehow do so by pulling the offender. Whilst logically that means the offender must be coming forward towards the victim it is also consistent with an intention of the victim, as stated by the victim, to get the offender away from him by firstly gaining control of him. 4. I do not make a finding that there was choking by use of the hands only around the neck of the offender, for the reasons stated in the preceding paragraph. Further, the photos were not submitted to, and to my observation do not, reveal any finger or hand marks or bruising. 5. I do find that the fighting had stopped by the time that Mr Jones reached the immediate vicinity of the offending. In my view Mr Jones was reaching the scene at about the time the necklace broke and the assault stopped at that point. I do not take this into account favourably to the offender. He had assaulted the victim who managed to resist in a way as demonstrated by the photographs. By the time the necklace broke not only had the offender realised that he was dealing with a large man with some strength but there was also a third person right there telling them to stop. It is these factors in my view that caused the offender to stop rather than some belated realisation of his wrongdoing. The attack was described by Mr Jones, and which I accept, as a bashing. I accept the Crown submission that it was ferocious, as borne out by the number of punches, the descriptions of both Mr Jones and Ms Liang, and the injuries suffered.

Objective seriousness

1. In this case it is admitted that the offender was reckless as to causing actual bodily harm. It is also admitted that grievous bodily harm has been caused. These are elements of the offence. In assessing the objective seriousness for the purposes of section 54A CSPA I take into account the extent of the injuries and the degree of violence. The offender argues that due to provocation the objective seriousness of the matter is lessened.
2. The offender submitted that it is all too common that tempers flare in traffic situations. This suggests that the provocation being asserted is the, for want of a better term, rudeness of the victim towards Ms Liang and his refusal to move forward. To my mind if that is what is relied upon as provocation then there is little substance in the argument in the first place. My view is that even if such matters could be considered to be provocative they are not matters which if the response is the violence seen in this case, lessens than the objective seriousness of the matter or the degree of criminality involved.
3. A better argument for the offender is to say that he was provoked into taking the action that he did by the exchange that he had with the victim when he approached the driver's side door. That is the victim has said to him words to the effect of "so you think you're a tough cunt", which is akin to setting down a challenge, and provoked by this the offender took up the challenge by inviting the victim to get out of the car. The argument however was not put this way save that it was submitted that these first words of the victim were of confrontation.
4. Allowing for this exchange of words I do find that there was a very mild amount of provocation which I take into account in assessing the objective seriousness of the matter with the result of some small benefit to the offender.
5. Based on the findings above, this is a matter within the mid-range though in my view just below the middle of the range of seriousness referred to in section 54A(2) CSPA. In other words I consider it to be beyond the low range of objective seriousness and into the mid-range but without reaching that statutory midpoint. I come to that view because the attack was impulsive and lacked any planning whatsoever, yet at the same time was a fierce attack on a man in a poor position to resist the attack, and also because whilst on one view the injuries appear very serious the actual extent of permanent disfigurement is somewhat vague on the evidence. I infer that there is some disfigurement to the nose even after the successful surgery but the internal matters based on the above summary appear to have healed. There was no medical evidence before me which would allow findings based on the fact that there was a leaking of cerebral spinal fluid, the very description of which suggests that there has been fluid from the brain or the cranium leak out as a result of the violence inflicted. However there is no evidence as to what degree of force or violence is necessary for the relevant part of the body to be broken for that to happen and the medical evidence that is before me suggests that the surgery repaired that leak. Viewed in that light whilst the attack was ferocious, albeit short, the nature of the injuries are of a type that one might expect at least in a general sense to make good the necessary element of grievous bodily harm.

Subjective case

1. The offender has a strong subjective case. He is now 27 years old and has no criminal record and for the reasons set out below is otherwise of good character. He is in a stable relationship and has no substance use issues and whilst there was evidence that he had not been working for some period since the offending the evidence shows him to be a hard-working and contributing member of the community. The offender also has the support of his mother and has a positive and caring role in the life of his 12-year-old stepsister. The evidence as to these matters is in the affidavit of Mr Liang and in the testimonial of the offender's mother.
2. Additionally he is entitled to a 25% discount for entering his plea at the earliest opportunity. There was no argument that should be lessened dependent on the outcome of the disputed facts hearing. Arguably it could be said that the position of the offender has not been advanced markedly if at all by the disputed facts hearing which may have arguably led to a reduction in the utilitarian value of the plea. In all the circumstances and in the absence of any such submission I consider it appropriate to proceed on the 25% discount basis.
3. A Sentence Assessment Report was prepared dated 24 January 2022. It states the offender resides with his partner so no longer with his mother. The offender and his partner co own a gym consistent with what is said in the affidavit of the partner, though that affidavit refers to other investors also. The SAR notes the offender's lack of criminal history. Consistent with his frank acknowledgement of wrongdoing to the psychologist (referred to below) the SAR records the offender as stating he could have made different choices and is disappointed with himself with his conduct.
4. The offender accepts his actions were out of proportion and believes his ego got in the way and attributed his behaviour to being protective of the women in his life. With respect I think that is a rather rose tinted way of looking at his behaviour. More favourable to the offender is the SAR does say he felt disrespected when challenged by the victim, which adds support to the second argument of provocation canvassed above.
5. He does express sentiments showing insight such that he feels bad and acknowledges that he has let himself and his family down.
6. The offender has been attending psychological intervention and is willing to attend for community service work. He says he is available on weekends though that is a matter for the community corrections. I accept the submission for the offender that not too much should be read into that statement in the SAR given the summary nature of the report and its brevity. I note that the psychological intervention occurred only after the offending. In my view there is a need for it to continue.
7. The offender was assessed as being a low risk of reoffending and actively participated in the assessment process.
8. As noted above a testimonial of the offender's mother was tendered. It was not formally marked as an exhibit at the hearing and I have marked it Exhibit 9. It sets out the offender's history of moving to Australia at the age of nine after his parents separated in China. It records the strong relationship with his stepsister who is now 12. His involvement with his stepsister extended to being her soccer team's coach for one season, a role ordinarily assumed by a parent. It states that the offender is very protective, an observation also made in the affidavit of Ms Liang. On one view it is this strong feeling of protectiveness which contributed to the offending. Overall however the testimonial of the offender's mother is consistent with his other subjective material and I take it into account favourably to him. I take into account that it has not been tested but in my view there is no reason not to accept it.
9. I have made reference to the affidavit of Ms Liang which is relied on for subjective purposes as well as for the disputed facts. It supports the same conclusions that I have reached based on the mother's testimonial.
10. The offender also relied on a psychological report of Mr Sam Borenstein, dated 14 May 2021. It states that the offender has been with his girlfriend for two years so now almost 3 years. The offender is a carpenter/builder by trade and presently involved with a gym and fitness centre. The offender consumes alcohol on a social basis and has used MDMA and cannabis socially. He denies using steroids and says he leads a fit and healthy lifestyle. He does not smoke tobacco and is a controlled gambler. He denies any substance use issues.
11. The offender is an only child of Chinese parents and was born in China. He came to Australia at age 9 when his parents separated. He witnessed his father hit his mother, yet he maintains a close bond with his father. He enjoyed life in China. He struggled at school on arrival in Australia with a lack of English and was bullied and stood up for himself. He said kids fight all the time in school in China.
12. He was once suspended from school for protecting a mate and fighting. He said he could never take a joke. He was a good sportsperson. His mother remarried and had a further child, his stepsister now aged 11 at the time of the report so now 12. He became qualified as a carpenter. He has always lived at home (as at the date of the report).
13. He presented well in the interview with the psychologist and presented as cognitively intact.
14. A personality assessment screen was administered indicating marked potential for emotional or behavioural problems of clinical significance and supporting depression and anxiety measures and supporting a propensity to act impulsively.
15. The testing also suggested an interpersonal style characterised by need for control. It also confirmed the offender suffers mild-to-moderate difficulties in the area of anger management.
16. The testing ruled out serious psychiatric disorder such as psychosis.
17. The Distress, Anxiety and Stress Scale indicated mild symptoms of depression and stress and severe symptoms of anxiety.
18. The report has a section headed "opinion", which is not so much a psychological opinion as to psychological matters, but rather really amounts to the psychologist's own summary of the overall offending. What I take from it is that it is not unusual for young boys and men to express anxiety and fear as a secondary emotion, namely anger and that the offender is a protective person and was being protective of his girlfriend.
19. In submissions the accused relied particularly on the last paragraph of page 7 where it is said the offender's childhood and adolescent history and his early difficulties in adapting to life in Australia led to a degree of vigilance, wariness and threat sensitivity which came to the fore on the morning of the offence. This was relied upon to support a De La Rosa argument that the psychological condition of the offender was causative of the offending.
20. In my view the evidence does not support such a conclusion. Nowhere in the report does it say that this feeling of threat sensitivity results in violence though it may be inferred that that can be a consequence. There is nothing other than bare assertion by the psychologist that this is what occurred on this occasion even accepting the paragraph relied upon to extend to an assertion that violence follows the threat sensitivity or is the threat sensitivity response. In so far as it is expert evidence there is no analysis of what occurred which links how that would trigger the emotional response to the extent that it did. With respect such an analysis would not likely reach the conclusion favourable to the offender because the question would be what is he protecting his girlfriend from? At the time he decided to approach the motor vehicle of the victim there had been no threat made to the girlfriend. On the offender's case the supposed threat is by a person who was seated inside his car minding his own business and who then rejected a request made by Ms Liang, albeit in a rude fashion. In short, one way of looking at this whole event is that it all emerged from the victim not acceding to the request of Ms Liang, hardly a threat. Suffice to say I reject the argument based on De la Rosa seeking to lessen the offenders criminality based on his subjective mental health state by reason of it being causative of the offending. If that conclusion was wrong in my view any benefit of that submission would be outweighed by the need to ensure the protection of the community.
21. I accept that there is a low risk of the offender reoffending based on his history and circumstances and the fact that since the offending he has sought psychological counselling.
22. The offending occurred some 18 months ago and in that time there has been treatment and there is no suggestion that he has offended again. The evidence set out above allows for the conclusion that he is truly remorseful as he indeed said himself in his evidence and also to the psychologist and to the sentence assessment report writer. I find that he is truly remorseful and that he has acknowledged his wrongdoing. Indeed he seems to have acknowledged his wrongdoing very soon after the incident despite the text messages with a friend suggesting otherwise which I accept are simply male bravado and misplaced comments ill-considered and now regretted.
23. I note that the offender is willing to undertake community service work.
24. The Crown argues against the finding of special circumstances. In my view there would be a benefit to the rehabilitation of the offender to have ongoing counselling addressing what appear to be his personality traits of overprotectiveness. In my view that allows for a finding of special circumstances permitting a longer period of supervision to ensure that that occurs and I would also take into account that it is or would be the offender's first time in custody.

Sentencing considerations

1. Section 3A CSPA sets out the purposes of sentencing as follows: 1. To ensure the offender is adequately punished 2. To prevent crime by deterring the offender and others from committing similar offences 3. To protect the community from the offender 4. To promote the rehabilitation of the offender 5. To make the offender accountable for his actions 6. To denounce the conduct of the offender 7. To recognise the harm done to the victim of the crime in the community
2. In regards to the issue of provocation I note R v Buddle [2005] NSWCCA 82 at [11] where it was said: While the presence of provocation was an important aspect in assessing the applicant's subjective criminality, and while it provided a motive for what might otherwise have been an incident of unexplained or random violence, it did not excuse his conduct. It is not the case that the victim of a crime can take the law into his own hands and exact physical revenge. Both personal and general deterrence therefore had a role to play in sentencing the applicant.
3. In this case it is the purposes of deterrence, both general and specific, denunciation and accountability as well as recognising the harm to the victim that require recognition more than the other purposes just identified.
4. Section 5 requires that a term of imprisonment only be imposed where no other sentence is appropriate. The submission of the Crown is that the section 5 threshold has been crossed. The position of the offender is that it is not.
5. In my view in order to fully recognise the seriousness of this offending and to impose a proportional sentence reflecting its seriousness a term of imprisonment is required. Whilst the offender is right to rely upon the unplanned nature of the attack, the number of blows landed and the injuries suffered and the findings concerning provocation lead me to conclude that the section 5 threshold is crossed in this case.
6. The offender argues for the imposition of an intensive corrections order. In order for an ICO to be the appropriate outcome there are three steps that need to be considered. The first is whether the section 5 threshold is crossed which I have determined above. The second is to determine the length of the sentence. In this regard I note the maximum term of 10 years, the standard non parole period of 4 years, and I note also my assessment of the objective seriousness of the matter as being into the mid-range (but below the s54A midpoint). The offender however has a favourable subjective case. Taking into account the range of matters discussed above in my view the appropriate length of sentence prior to the 25% discount is 2 years. Applying the discount results in a term of 18 months. This means the term is less than two years so that an ICO is available within the terms of section 67 and the submission of the offender to impose an ICO needs to be considered. I note that this is not a prescribed sexual offence so that an ICO remains available.
7. The third step is to consider section 66 CSPA.
8. There are numerous cases discussing this section. One of those which I consider helpful is that of Blanch v R [2019] NSWCCA 304.
9. At [51] Campbell J addresses section 66 of the Crimes (Sentencing Procedure) Act (CSPA) noting it prescribed mandatory considerations to which the sentencing court must have regard in deciding whether or not to make an ICO. He noted that in the section's limited sphere of operation, being when deciding whether to make an ICO, community safety is the paramount consideration; ss(1). Section 66 (2) requires, when considering community safety, consideration or assessment of whether an ICO or serving a full-time custodial sentence is more likely to address the offender's risk of reoffending. Subsection 3 then requires the court to also consider the purposes of sentencing set out in section 3A. As Campbell J put it "that is to say the paramount consideration of community safety must be weighed and assessed in the context of all facts matters and circumstances relevant to the particular sentencing task applying the instinctive synthesis approach" (references omitted); see at [51].
10. In making his decision Campbell J expressly made reference to the Attorney General's second reading speech when introducing the 2018 amendments; see at [89] which he had in fact set out at [43]. The effect of that passage (at [43]) is to state that community safety is not just about incarceration. In a passage emphasised by Campbell J the Attorney General stated, "imprisonment under 2 years is commonly not effective at bringing about medium to long-term behaviour change that reduces reoffending. Evidence shows that community supervision and programs are far more effective at this".
11. The evidence here relevant to the assessment required by section 66(2) is the conduct of the offender since the offending, namely that he has not offended again, and he has sought counselling in that time. Additionally he has good community ties; a stable relationship, a caring family, and at least at present, and also prior to the offending, a good work history. This and the basis of the above assessment as to the likelihood of reoffending, suggests that an ICO outcome will not see reoffending.
12. There is no real evidence as to the impact of custody on his likelihood of reoffending, though the view of the legislature expressed by the Attorney General is that it can be counterproductive with a term of imprisonment of the length to be served here. Thus the s66(2) assessment results in a conclusion that the offender's risk of reoffending is better addressed by the imposition of an ICO and not an order of full time detention. On the same reasoning an ICO result best serves the objective of community safety, the paramount consideration; s66(1).
13. Having carried out that assessment, it remains, by s66(3), to consider the provisions of s3A. I have considered s3A above, and in my view those identified purposes are met by way of an ICO.
14. The result will therefore be a term of imprisonment for a period of 18 months to be served by way of the imposition of an intensive corrections order. The standard conditions will be imposed. By section 73A subject to exceptional circumstances not here present at least one additional condition is to be imposed. The intensive correction order will have the additional conditions of 150 hours of community service work and the treatment condition that the offender engage in a further 10 sessions of counselling with Dr Mario pursuant to a mental health care plan.

ORDERS 1. Of the offence under section 35(2) of the Crimes Act the offender is convicted. 2. The offender is sentenced to a term of imprisonment of 18 months, commencing on 28 January 2022 and expiring on 27 July 2023. 3. The term of imprisonment is to be served by way of an intensive correction order commencing on 28 January 2022 and expiring on 27 July 2023 with the following standard and additional conditions: 1. The offender must not commit any offence: 2. The offender must submit to supervision by community corrections officer. In that regard I further direct that the offender attend at the Sydney city office of community corrections by no later than 4 PM 4 February 2022: 3. That the offender perform community service work for 150 hours; 4. A treatment condition requiring the offender to attend upon further counselling with Dr Mario for no less than a further 10 sessions. Whether that is done via the offender's further referral from his GP on a mental health care plan or otherwise is a matter for the offender. The offender is ordered to contact Dr Mario within the next seven days for the purpose of making the next available appointment.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 January 2022