R v Walker

District Court of NSW|2022-04-13

Solicitors: Justine Hall Pty Ltd (for the offender) File Number(s): 2020/00142007

Introduction

On 12 May 2020, police received information that two men were being detained and assaulted, and that their families had been asked to either provide or help in the transfer of money. A police taskforce was rapidly assembled. Family members were spoken to; police went on the road looking for one of the men's Citroen van.

Fact Finding

There is some dispute as to what facts I should sentence on. They were addressed by Mr Hart, for Walker and Mr Fox, the Crown Prosecutor who appeared earlier this year. It is for me to determine what facts I accept and what assertions I reject, but my findings must be consistent with the jury verdicts. Where a matter is in contest, it may not be acted upon unless established and proof of such a fact must occur in the context of these proceedings which are, in effect, an uncompleted criminal trial. An accused cannot be obliged to prove a fact. I must make my own assessment in part of my overall synthesis of relevant factors. Matters in mitigation must be established on balance of probabilities and matters in aggravation, established beyond reasonable doubt. Some points can never be established but simply, have to be taken into account: The Queen v Olbrich (1999) CLR 27; [1999] HCA 54; Weininger v The Queen (2003) 212 CLR 629 18 -24; [2003] HCA 14. Whatever standard of proof is applied standard, it is for me to take all relevant matters into account.

The facts

There were some differences between the accounts of the complainants, but I do not think those differences were so significant as to undermine the prosecution case, particularly given both suffered trauma at the relevant time and both, over time, came to blame each other for their predicament, if not for the crimes that was committed against them. Although there are minor differences, I am prepared to accept, the versions given by each complainant and I will make decisions based upon my assessment of the evidence and the logic of events.
Reviewing the objectively established that affects the sentence evidence, I am left with this. It is not in serious dispute that each accused, and each complainant were methylamphetamine (ice) users. It is not in dispute that Morley would, on occasions, sell ice from his home; a two‑bedroom flat under a house in southern Wollongong, Cringila, which he shared with Clare. Complainant 1 was a customer.
In early 2020 it appears there was a shortage of the drug, ice, in the local area. Complainant 1 had a contact number for a supplier based in Sydney. He had been given it by his friend, Complainant 2. Complainant 1 gave that number to Morley. Morley agreed to purchase 2 ounces or 56 grams of methylamphetamine from the dealer. A price was arranged; it is not clear whether it was for $5,000 or $9,000. Suspicious, Morley insisted that Complainant 1 accompany him to Sydney where the deal was done.
Late on 11 May 2020, Complainant 1 was picked up by Morley from near his home and the two men, accompanied by Clare, drove to western Sydney in a VW station wagon. They met the supplier at a designated location. A sample was handed over to Complainant 1 and smoked by Clare; money was exchanged, and a packet of white crystals supplied. The supplier left and the occupants of the VW headed south.
On the way back to Wollongong it was discovered that they had not been supplied with the expected ice, but a similar quantity of what looked like bath salts. To use the colloquial term, they had been "ripped off." Police later recovered about 60 grams of white crystals in a packet in bedroom one of Morley and Clare's flat in Cringila. Those crystals were not illicit drugs; I can only presume they were the bait for the rip‑off.
Morley held Complainant 1 responsible for his loss. He wanted compensation. Complainant 1 had no money. He contacted Complainant 2 who he knew had just cashed out $10,000 of his superannuation, using the COVID‑related relaxation of superannuation rules. He asked Complainant 2 to meet him at the flat at Cringila. Complainant 2 said no. They arranged to meet at the Cringila service station.
It is at this point that Walker joined the enterprise.
The VW drove to the flat at Cringila. Clare got out and Walker got in. Walker is a large, heavily‑built man. At the service station, Walker got into complainant 2's Citroen van and directed him to follow the VW to Cringila. After the cars parked in a driveway, both complainants were told to go into the flat and sit down. There, Morley, in the presence of Clare and Walker, made it clear to both complainants that they were responsible for the lost money, and they would not be leaving until the debt was repaid.
To reinforce that request, Morley, and Walker, using weapons, struck the complainants on their legs and knees. Complainant 1 said Morley used the side of a blade of a tomahawk while Walker used silver nun chucks (martial arts fighting sticks, joined by a chain). A fingerprint impression and a DNA profile matching Walker's were later recovered from silver nun chucks found in bedroom one of the flat.
Complainant 2 said tomahawks were used. He told the jury he was frightened, but it was "not that bad." He said physically, it did not hurt. He later found a bruise at the site. Relatively soon after, he transferred $1,050 to an account nominated by Morley; that account belonged to Clare. Soon after, he rang his mother and arranged for her to transfer $2,500 from an account she held for him into Clare's account. He then offered those in the flat some ice he had purchased from others on the 11th.
Complainant 1 told the jury that Morley "hit me four times on the right knee. I think it was the third impact I felt something pop in my knee and I knew something was potentially fractured… felt a click happen. Following that, severe pain. Noticed immediate swelling started to occur. Definitely knew something bad - that bad - bad that'd happened."
A police photograph of the swollen knee was tendered at trial. Complainant 1 told the jury the pain and discomfort continued throughout the day. He told the jury he had great difficulty that morning because of the injury to his knee, that he "tried to stretch out as best I could with my knee".
As this assault occurred, Complainant 1 said both Morley and Walker were saying things like, "How are you going to sort it out?". He said Clare was present when this occurred. He said Morley was telling him to make phone calls, "telling me to call my mum, call my ‑ well, like, my family, in which I was simply saying, 'I'm not going ‑ I don't have anyone to call'".
Complainant 1 continued to refuse to pay any money or contact his family and ask them for payment. His phone was taken from him. He told the jury he kept explaining to them, "I definitely wasn't going to be calling my mum and asking for $9,000 at that time in the morning. I would not be during it during the day, let alone at that time". Later, that phone was used so that Complainant 2 could call complainant one's mother in his stead.
Complainant 1 said he was not allowed out of the storage area, although he was given some ice to smoke. Complainant 1 later came to think that Complainant 2 may have had something to do with the rip‑off.
Complainant 2, on the other hand, blamed Complainant 1 for luring him to Cringila and getting him into this predicament. It was not the first time he had helped Complainant 1 out of difficulties arising from his drug use. He also resented the fact he was still being held because Complainant 1 was not cooperating or making any effort to raise the funds demanded.
In the morning, Clare came back to the storage area and handed both complainants water in a bottle and a Burek, a pastry. In the morning, Morley put the phone on loudspeaker so Complainant 1 could talk to his brother. He told him, "Sorry, I, I fucked up. In a shit position. They want, they want nine grand which I don't expect you to pay".
Complainant 1 said most of the demands were made by Morley who came to the door to ask about contacts on his phone. Walker, he said, did not come to the door. He said Ilievski "came to the door and would ask me how I was going to sort it out". Complainant 1 told the court, "the only point where Tara [Clare] really spoke was when she'd had enough of looking at us and told us to ‑ told Ben [Walker] and Cheyne [Morley] to put us underneath the house".
Complainant 1 said "Later in the afternoon, after Cheyne and Ilo [Ilievski] came to the door repeatedly asking how I was going to sort it out to no avail, Ben Walker came to the little hatch, opened it up and told me to 'get the fuck out'".
He said Walker told him to "get the fuck out the front … He'd kept asking me how I was going to come up with the money, when I was going to come back with the money. If not, if I didn't come back with the money and stuff, they were going to chop me up. If I went to the police, if my family went to the police, they were going to chop me and my family up."
As he passed the living room, Complainant 1 said he saw Clare, Ilievski, and Complainant 2. Ilievski came outside as Walker was walking him outside.
When Walker had him out the front, Morley "came running out really fast, grabbed a hold of my jumper and started hitting me at the side of the face". Complainant 1 suffered swelling, haemorrhaging, bruising and facial fractures which were later treated in hospital. Walker stood to the side, watching. He then told Morley to stop as people passing might be able to see.
Complainant 2 told me when the assaults occurred in the living room and the demands were made of him, Clare was coming and going from the living room. At one stage, she asked for "privacy". It was then that both complainants were ordered into the storage unit at the rear of the unit. To access the space, they had to step up and manoeuvre through a small door set midway up the rear of the unit. The door was then locked behind them.
Complainant 2 said he was treated more leniently than Complainant 1 because he had cooperated. He was allowed out at times to smoke cigarettes and ice and was allowed to get his notebook from the van. But, after each outing, he was told to return to the storage area and the door was closed behind him; "I always had to go back in".
On one cigarette break he said he saw Ilievski and Ilievski later spoke to him. He said Clare also came to the door to make one comment and that she gave them water and a pastry. He said another man also came to the door, presumably Eager.
He said his phone had been taken but he was given it and on request, rang Complainant 1's mother and told her, her son had been taken. He told her, "I'm sick of paying for Brendon's mess and that I've already paid, gave them all the money that I have" and now it's her turn to "bloody clean up her son's mess". At first, she thought he was joking.
Complainant 2 told the jury Complainant 1 made no effort to arrange money so eventually, he got over being in the space and gave in, signing over his car to Morley. When he said he would do this, he was let out of the space. He felt he had no option in signing over his car. This was about 3 or 4pm.
He said that when this was happening, Walker told Complainant 1 he could leave. Complainant 2 heard yelling out the front. He next saw Complainant 1 when they were both holding area at the police station.
The complainants were detained for over fifteen hours. They were directed to the lounge room in Cringila about 1am; Complainant 1 was released about 4pm; Complainant 2 left the premises about 5pm. When exactly his detention stopped does not need to be determined.
Most of the time, they were kept in a restricted, underfloor space. Only Complainant 2 was allowed some freedoms and breaks as a reward for arranging payments.
Complainant 1 suffered facial fractures; required surgery for a plate and screw; the facial fractures were the left zygomatic bone, the nasal bone, the maxilla, and the sphenoid. He also had knee joint fractures and effusion ‑ that is, liquid or a cyst ‑ on the knee.
A quantity of methylamphetamine was found at the premises. Morley accepted responsibility for these drugs.

Objective seriousness - general

There are no victim impact statements. Their absence does not mitigate the objective seriousness generally.
When offenders are involved in a joint enterprise, this does not necessarily mean that each offender is sentenced on the basis that individual actions had the same objective criminality. They are each equally liable, however, generally for the crime. Generally, a Court takes into account: 1. The period of detention; 2. The nature of advantage sought; 3. The circumstances of the detention including: 1. Relevantly here, motive, 2. Any real threat of violence or any violence, 3. The presence of a weapon and its nature, 4. Any anguish, discomfiture, violence, or harm inflicted, 5. The number of offenders, the force of numbers deployed against the victim can aggravate the offence, and, 6. For the specially aggravated offence, the nature and extent of any bodily harm inflicted.
Where the basis of the offender's liability is joint criminal enterprise, it is often difficult to draw a distinction between them, but the Court can draw a distinction between the role of offenders. For example: 1. Between the person who inflicts violence and the person who is present and at least implicitly approves of it, if not encourages that action; and, 2. Between those who are in the planning or preparation, although there does not appear to have been any planning or preparation here.

Objective seriousness - specific

So far as Mr Walker is concerned, he joined the enterprise after the car had returned from Sydney to the flat at Cringila. There is no evidence before the Court as to why he did so. Although an axe was taken from the home, it was not used on Complainant 2 or seen by him at the service station. But, Walker did hop into his car. Walker was a stranger to him. Walker directed Complainant 2 to follow the other car and directed him to follow that other car back to the flat. No overt force was used by him, but the whole point for meeting at the service station was because Complainant 2 had made it clear he did not want to meet at the flat. Walker's presence, as was obviously intended, over-bore his will. Walker was not a welcome guest in the car, and Walker, he knew it.
At the flat, Walker used the nun chucks. Complainant 1 said so and I accept what he said as it is supported by forensic evidence that Walker handled the weapon ‑ although it matters little what weapon was used. While it was Morley who caused the actual injury to Complainant 1's knee, Walker acted together with him. Walker struck Complainant 2, and Complainant 2 made it clear that that blow, or blows did not cause anything more than a transient bruise of little consequence. Walker did not inflict a serious blow on Complainant 2, despite the fact that he was using the nun chucks.
Thereafter, Walker leant his presence to the detention. He was present and still in the position to intimidate Complainant 1 when Morley assaulted him outside the flat.
Walker was, I find, subordinate to Morley, but he played an active role in the initial assault; he played an active role in the detention and the intimidation throughout the enterprise from, in particular, when the threats were reinforced with weapons in the lounge room of the flat and the complainants were placed in the storage area. He was present when Morley assaulted Complainant 1 on both occasions and leant his presence to that assault. He did act to moderate Morley's attack, but his intervention was not altruistic but cautious; intended to prevent discovery. I do find, however, that he would not have been aware of the extent of the injury that Morley inflicted upon Complainant 1 at the time.

Maximum penalty

The maximum penalty for count 1, s 86(3) Crimes Act, is 25 years imprisonment. The maximum penalty for the alternative, count 2, s 86(2)(a) Crimes Act, is 20 years imprisonment. Both maximums are important guides to the exercise of my sentencing discretion.

COVID

The matter has been delayed for several reasons, none of which can be sheeted home to Mr Walker. The matters came before the Court at the beginning of the COVID pandemic. I cannot and will not ignore the impact of that pandemic. One aspect of the delay has been that Walker has been on remand for a considerable period. It is notorious that sentenced prisoners have more access to programs and a more settled life in prison than those kept on remand.
COVID has entered our gaols. No prisoner, to my knowledge, has received the early parole that might have been given to some prisoners: s276 Crimes (Administration of Sentences) Act 1999. All were subject to quarantines, regular lockdown and many caught the virus. Those restraints, lockdowns, lack of access to work, lack of access to personal visits, being subject to measures taken to reduce the chance of infection, would have heightened anxiety and concerns, particularly as prisoners have no control over their lives or who they associate with. They must be considered sympathetically and synthesised with all other relevant matters.

Unsworn evidence

I have received evidence from two psychologists. None were required for cross‑examination. There was no significant joinder of issues in relation to what they said. No the less, there is always a need, where the material provided to psychologists is not subject to cross‑examination and cannot be effectively tested, to exercise some caution when I come to the opinions, or the histories proffered. But here, I can and do, consider the considered opinions of the medical experts. They have clinical experience in taking histories and testing and assessing their significance: Lloyd v R [2022] NSWCCA 18; Devaney v R [2012] NSWCCA 285 at [88]; Luque v R [2017] NSWCCA 226 at [116]; Pym v R [2014] NSWCCA 182 at [79].
There are no expressions of remorse or contrition that I can really take into account. None was offered; none was given. Perhaps, a level of regret, at best.

Subjective factors

The following material was tendered:

A police report, COPS, of an incident at Goulburn gaol on 4 November 2021;
references;
evidence in relation to injuries he received and about a serious bus crash in 1991;
a report from Ms Skarbek, psychologist, which was prepared for a possible civil action following the Royal Commission into childhood sexual abuse; and,
a forensic report from Ms Sidhu, a forensic psychologist.
an envelope which will be sealed and kept with the Court papers, containing material relating to s 23 Crimes (Sentencing Procedure) Act 1999.

I note that I sentenced Walker for other matters in 2019: R v Walker [2019] NSWDC 554.
Mr Walker is now 45 years old. He has a criminal record going back many years. He was on parole when he committed this offence. He was released to parole on 28 April 2020. This offending occurred 12 days later. It is obvious that he did not keep the promise he made to the Court or his family or himself that he would, on release, be of good behaviour. He served the balance of parole from 13 May 2020 to 28 April 2021.
His record not only disentitles him to leniency, but it shows that this offence was, although of a different nature, not an aberration to this other offending. It demonstrates his continuing disobedience towards the law and while a prior criminal history cannot result in a sentence disproportionate to the gravity of the offences for sentence, here, a more severe penalty is warranted, with some additional focus on retribution, deterrence, and the protection of society: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477.
I accept that where a person has a longstanding drug history, not every release to parole is successful and not every promise made during the sentencing proceedings can or will be able to be kept, particularly where there is a longstanding addiction to illicit drugs. I also note Walker was released during the pandemic and the only contact he had with parole officers was by telephone.
Walker's family and personal history are set out by Ms Skarbek and Ms Sidhu; it is not controversial. He has solid support, and his parents are here today. He has high‑functioning siblings, and his family is pro‑social.
Walker's early life was focused on sport, primarily, rugby league. He was an Australian representative schoolboy. He had no interest otherwise in school and left at Year 10. He has done some TAFE and has a certificate in youth work.
From late teen age, substance abuse played a predominant part in his life. Since 19 he was a regular user of amphetamines and cannabis. He later came to use heroin on a regular basis. There is also material before me that indicates that whatever money he had that was not spent on drugs was gambled, and his gambling was problematic. He has been on the buprenorphine program for the last two years.
He has three children and when he is in the community, has contact with them, but, understandably, but their mother does not want them exposed to their father while he is in gaol.
He has done an EQUIPS addiction program. He has had various labouring jobs but primarily, appears to have supported himself by involvement in the illicit drug milieu.
His parents' letter to me shows their support for him and their 100% commitment to him. They see Walker's good side, and they pledge to help him on release with his plans; plans to reconnect with his children, to find work, and to find accommodation outside the Illawarra.
Ms Skarbek told me of two incidents of child sexual abuse that he had not previously disclosed; one at school and the other, while in hospital following the motor vehicle accident. She sets out their details and she sets out their impact on him as a young boy. She notes he has intrusive recollections and hypervigilance. He scores high on screening tests for a diagnosis of post‑traumatic stress disorder. Ms Skarbek also details a history of substance abuse and a history of depression and anxiety, which are recorded in gaol records going back to 2007.
Ms Skarbek postulates: "This background is a result of his attempts to block out negative emotions of his abuse experiences". She said he views himself as "damaged" and "defective". She says his child sexual abuse is "the sole contributing factor to the development of his adult psychopathology", and that, "the assault in prison has reinforced his cognitions of the need to monitor his environment and protect himself from others".
While I could not accept those conclusions as definitive, they are matters I must consider. It is not unusual for victims of child sexual abuse to have the constellations of behaviour revealed in the record and the material before me, or to have that abuse contribute to the development of adult psychopathology.
But, many young people take up the use and abuse of illicit drugs for a variety of reasons and once in the grip of a drug addiction, other noble aims, or even the prosocial influence of family can be ignored. Once the cycle starts, it is very hard to break.
Ms Sidhu repeats Walker's uncontroversial family history. She concludes Walker's sexual abuse when a child shaped his personality and coping ability and was a significant factor in his take up of illicit substances and mental health difficulties.
She notes his drug use since his late teens and the problems it has caused. She notes he has supported himself by drug supply in the past. She notes some empathy for the primary victim, Complainant 1, but also some minimisation. He does say he knows what trauma feels like.
He revealed to her is that he was drug‑affected at the time and did not stop to stop and think. Otherwise, he is incapable of explaining why he got involved. Through Ms Sidhu, he again promises to work on himself and not in the future, make stupid decisions. He promises to try to break the cycle of the last 20 years. Ms Sidhu notes his drug addiction, his poor mental health, and his trauma provide some content for his offending.
She notes, on p 11, a possible release plan: "It would be beneficial for him to continue with his buprenorphine program. This should be in conjunction with targeted interventions such as the EQUIPS maintenance program. He would benefit from the skills already learnt from the EQUIPS foundation program, but she acknowledges his current non‑association status will make this difficult. He will benefit from a review by the Justice Health Mental Health Team, and a referral to the custodial mental health team. He would benefit from programs in the community such as the SMART self‑management and recovery training. He needs help in building positive interactions with prosocial contacts. He will need support given his 20 years of leading an anti‑social life to encourage greater pro‑sociality ‑ in particular, gaining meaningful employment and learning how to build a healthy, prosocial peer network. His personal motivation will be imperative to any success."
Courts do not and should not ignore the impact of sexual abuse on children or other traumatic events. A sexual assault can, as Courts have found when sentencing those who offend against children, have profound and highly‑detrimental impacts on the child assaulted: R v MJB [2014] NSWCCA 195 at [49]; R v Gavel [2014] NSWCCA 56; Stanton v R [2021] NSWCCA 123 at [67], Nasrallah v R [2021] NSWCCA 207 at [100]-[102].
These impacts are relevant by way of mitigation. A Court should not de‑value the impact of particular traumatic events; as those detailed particularly in Ms Skarbek's report. The offender's background, particularly matters that occurred when a child, always remain relevant and should be given proper effect when I come to synthesise an appropriate and just sentence; Bugmy v The Queen (1990) 169 CLR 525; [2013] HCA 37. They are matters that can help explain why Walker when very young took up the use of illicit drugs and continued to use illicit drugs.
Drug use can explain the impulsivity of the offences here and the apparent lack of planning for it, but conversely, it also makes the offences potentially more serious, as the commission of crimes while drug‑affected means that an offender may not be behaving rationally or with concern for himself and others.
Walker's long history of drug abuse is relevant here; its genesis is relevant here. It provides some assistance to his subjective case because of the origin and extent of the addiction. Additionally, his attempts, failed though they have been to date, go to his prospects for recidivism or rehabilitation. If he remains motivated; if he is given the opportunities and takes those opportunities, then he may, at long last, turn his life around.
Walker was assaulted in gaol. He was stabbed with a shiv, a gaol‑made knife, while in the yards at Goulburn on remand. Thankfully, his injuries were not life‑threatening and relatively minor. That fact is relevant on sentence.
His assailants have been charged and to date, I am informed, Walker has not made a statement. It does not mean he will not, and it does not mean he will not be subpoenaed should they seek to defend the matter. If he does, that will entail extra security. Because of the assault, he is serving his sentence on protection in non‑association, which, I understand, apart from the special purposes prison, is the strictest form of protection.
A distinction has been drawn by the Court of Criminal Appeal between assaults that can be shown to involve extra curial punishment and those that, as here, cannot be so linked: Silvano v R [2008] NSWCCA 118: R v O'Connor [2014] NSWCCA 53: (2014) 239 A Crim R 487. However, a Court cannot ignore the lived experience of gaol. Judges must take into account and synthesise all relevant considerations. Even after the wounds heal, a prisoner assaulted in custody will inevitably suffer some anxiety and other concerns because they are being kept in the same type of environment where they were previously assaulted. Gaols, as the fact of this incident reveal, are nasty, violent places. All prisoners are at risk. They have no control over who they associate with and no control over their immediate safety. Those measures are left to Community Corrections who, to date, at least since this incident, have taken protective measures. It takes no imagination to conclude a person who has been seriously assaulted, stabbed in gaol, will find incarceration, at the very least, more worrying than someone who has not.

Disclosure allowing recovery of illicit firearms

Walker made a disclosure to police at the time of his arrest: He told them of the precise location of two firearms that had been secreted by, he said, an unknown offender. The police were able to locate those firearms, one of which was loaded. A report notes "If it had not been for Walker telling the police where these firearms were located, they could still be on the streets today and have the ability to kill or seriously injure members of the public".
This case did not involve any allegations of firearm use. I will not take into account his knowledge about the firearms when I come to sentencing. But Walker is entitled to a modest reduction of his otherwise‑appropriate sentences as indicated for his help in removing those firearms from the community ‑ a matter I discussed over a decade ago in R v Moradian [2011] NSWDC 130 [34]‑[45]. No‑one has subsequently said that the principles I applied then were incorrect. This is not a matter where there is ‑ that I am aware of ‑ risk to the offender from that disclosure. He has done the community a service and that service will be recognised by a reduction in both indicated sentences, and I will, when I come to formulate an aggregate sentence, reduce the head sentence appropriately.
Criminals should be encouraged to provide such assistance to the authorities removing guns from the community. Ordinarily, even if the behaviour is self‑serving - even if it involves matters ‑ and there is no evidence here it did ‑ where the offender may himself have been involved- a reduction is sentence is required. Here although it approximates to 5% I will quantify that reduction in months. It is only modest, but there is no future assistance, and it is a one‑off matter. I do take into account, however, generally, that this disclosure was not made in a calculated fashion just prior to sentence, but was made at the time of his arrest, which shows some underlying prosocial beliefs.

Submissions

I have the benefit of written submissions from Ms Keay, for the Crown. Mr Fox made oral submissions when this matter first commenced. He appeared at trial as the Crown Prosecutor.
Mr Hart, who appeared at trial and on sentence, stressed the support Walker had from pro‑social friends and family who, despite everything, stand by him. He said there is a plan on release; accommodation and work is available to him. He noted the recent disclosures whose related trauma could help account for his problems with addiction and the law since he was in late teen age. He noted a care plan can be put in place, and it may help his prospects of avoiding returning to crime. Other matters provide powerful incentives not to return gaol or associate with the criminal element.
Ms Keay, in response, while noting the recent disclosure and matters that might be taken into account to deal with those underlying problems, made the obvious point that - it is clear from his record that similar promises have been made in the past. In her submission I must be guarded in accepting a submission that rehabilitation is likely this time.

Parity

I must have regard to the circumstances of all of the co‑offenders and their respective degrees of culpability. Like must be compared with like. This principle is known as "parity". It is a classic example of the need, so far as possible, to ensure equal justice: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49; Afu v R [2017] NSWCCA 246.
Proper application of the totality principle does not necessarily mean that each offender is sentenced on the basis of their individual actions had the same objective criminality. There are here reasons why one offender is less objectively culpable than the others; primarily because of the role they took and the extent to which they were involved in the crimes. An offender's role must be individually assessed. And I need to determine where each offender lies in terms of the objective seriousness of their offending and their subjective cases. Different personal and criminal histories can justify a real difference in the time each will serve: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Magaming v The Queen (2013) 252 CLR 381 [2013] HCA 40 at [51].

Sentence structure

There are two matters for sentence. I do not simply add one sentence on the other. There are significant matters of overlap as between them. The ultimate aggregate should not exceed what is called for in the whole of the circumstances. The aggregate or total sentence should be appropriate to the totality of the offender's criminality and take into account his subjective case.
At the same time, there were two victims here and Courts should avoid any suggestion a discount is given for multiple offending. There must be some effective punishment for both offences; to recognise the harm done to each of the victims.
This sentence will also be partially accumulated on the balance of parole being served.
There is also material, which I accept, that on release Walker, if he takes advantage of the help offered to him, will need psychological treatment that simply will be unavailable to him in custody. He will need assistance dealing with his trauma symptoms and they can best be provided to him in the community. He will need considerable help in adjusting to normal community life. They all provide a basis for a finding of special circumstances. But I am mindful of the requirement that the minimum period he should be imprisoned should also reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].
Studies by the Bureau of Crime Statistics indicate that those who not only get parole but are properly and fully supervised and submit to that supervision take longer to re‑offend than those who ignore parole requirements: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR.
I note that Mr Walker is now old enough and has had enough time to reflect on his failures and will not make the simple mistake he did when released to parole last time I sentenced him, but I cannot that ignore past behaviour.
Motivation is important. Too‑severe a sentence may result in a disproportionate level of punishment but, more importantly, too‑severe a sentence could operate to increase a risk to community safety on release. This can occur if a person becomes institutionalised by serving a long sentence, or, if the value of any steps already taken are diminished. It is also clear that prisoners in Walker's situation should have as a goal the hope of a normal life after the end of their term. Proportionate sentences, however, really depend on the perspective of the observer, whether they are victim, community, appeal court or offender: C'th v Beattie [2017] NSWCCA 301, Basten JA at [26]-[45].

Synthesis

There must be appropriate retribution here. By retribution I mean by the sentence imposed, this offender and others understand the sort of penalties that will be imposed if they seek to behave as he did. This is sometimes referred to as "general deterrence". The time in custody will, I hope, operate to deter Mr Walker from offending again.
The sentence must also reflect; the harm done to the community by offences such this, the disquiet that is caused. And, of course, the harm to the individual victims must be recognised, and their dignity vindicated.
Walker is not to be punished for exercising his right to trial by jury. It is an important right. But those who exercise the right and are then found guilty, do not get the benefits extended to those, such as Mr Eager who, in this case, entered an early plea while in the Local Court. Walker's belated acceptance of some responsibility will be taken into account. He is not to be denied appropriate leniency, but he does not get the benefits, utilitarian or otherwise, that an early plea would have justified.
Walker has, in the past, attempted drug rehabilitations but failed. He has battled with addiction since he was relatively young. When I sentenced him in 2019, I found he had noble aims when released, such as going to TAFE and getting a job. I was cautious then. I now have to repeat the cautions I had then.
While I did not want to discourage him, I note again that; unless he comes to grips with his drug problem, unless he engages with programs such as EQUIPS foundations, unless he engages in serious intervention with the support of probation and parole, he will not be able to complete TAFE, he will not be able to find employment which he so clearly requires, and he will not be able to be a proper father to his children.
These are important goals. I do not wish to deter him from seeking help. I will not punish him for failing at the last attempt. I will not punish him any more than the law requires me, but take into account, the commission of offences while on parole. But Walker has to understand that his release to parole will be determined by the State Parole Authority and if he fails again, Courts are eventually going to give up on him. Further, he may lose the support of his parents and others. He will lose even more years from the lives of his young children. Those matters have not deterred him in the past; nor has the risk of serious punishment.
Not every matter has to be fitted into categories; human behaviour and characteristics are too varied for that. I must synthesise all of what occurred and his personal features and translate the complexity of a human, someone with the flaws and traumas set out before me; a person who has served too much of his life in custody, despite the support he has from family. I must give proper weight to the seriousness of his crimes. I must convert all of those matters into units of punishment expressed in time. I trust I have synthesised all of the relevant factors. I then must make a valued judgment.
There will be a finding of special circumstances here, but whether my intentions to allow longer on parole can be met will really depend on the conclusions reached by the State Parole Authority. What conditions they place on parole, obviously, are for them.
This sentence will be accumulated by five months on the balance of parole, which means it should start on 12 October 2020.
The indicated sentences will be reduced three months. This benefit should not be eroded by the process of accumulation.

Orders

The following sentences are indicated: 1. For count 1, Take/detain in company with intent to get advantage occasion actual bodily harm, I indicate a sentence of 4 years 3 months. 2. For Alt. count 2, Take/detain person in company with intent to obtain advantage, I indicate a sentence of 3 years 4 months.
There will be an aggregate term of five years, nine months. My starting point was six years. The non‑parole period will be three years and six months; it will commence on 12 October 2020. Walker will become eligible for consideration for release to parole 11 April 2024. The balance of the term of two years and three months can, if the Parole Authority allow, be spent in the community. It will commence on 12 April 2024 and expire on 11 July 2026.

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: 21 February 2023

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