Rex v HOLLAND

District Court of NSW|2024-04-05

JUDGMENT

The offender was committed for sentence on 1 November 2023 in respect of a charge that he: Between 12.30 pm on 10 December 2022 and 5.20 am on 11 December 2022 at Forest Hill in the State of New South Wales did threaten to use an offensive weapon with intent to commit the indictable offence of Intimidation, contrary to s 33B(1)(a) of the Crimes Act, 1900.
The plea of guilty was adhered to at the sentence hearing at the Wagga Wagga District Court on 5 April 2024 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty.
The maximum penalty for the offence for which the offender appears for sentence is 12 years imprisonment. Parliament has not specified a standard non-parole period in respect of that offence.
The offender asks that when passing sentence on the offence contrary to s 33B(1)(a) of the Crimes Act I take into account a charge of Intimidation contrary to s 13(1) of the Crimes (Domestic & Personal Violence) Act 2007 that attaches to a Form 1 document. In passing sentence I will need to ensure that I give proper regard to the principles enunciated by the Court of Criminal Appeal in The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 otherwise known as the Guideline Judgment on Form 1 matters reported (2002) 56 NSWLR 146. I observe that given the nature of the offending the matter attaching to the Form 1 document must have some impact on the ultimate sentence to be imposed.
Further, at the sentence hearing the offender entered plea of guilty to two charges attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986, namely one charge of Not Keep Firearm Safely contrary to s 39(1)(a) of the Firearms Act, 1996 and One charge of Drive Unregistered Vehicle contrary to s 68(1) of the Road Transport Act, 2013. Pleas of guilty were entered to those matters at the sentence hearing. Given that the sentence hearing was the first available opportunity for the offender to plead guilty I also allow a 25% discount for the utilitarian value of the pleas of guilty in those matters.

Facts

The facts are before the court by a set of agreed facts. Ms O'Neill on behalf of the offender made submissions on the facts and at one point submitted that the offence contrary to s 33B of the Crimes Act 1900 was constituted only by the contents of paragraph 25 of the Facts. That position was not maintained.
At the time of the offending, the offender was 28 years of age and had been a serving member of the RAAF for a period of nine years. He resided with his wife Bronte Holland and the two children at an address in Forest Hill, which is where RAAF Base Wagga is located adjacent to the civilian airport. The offender was the holder of firearms licence and had three rifles registered in his name at his residence, namely: 1. Weatherby Vanguard .243 Winchester Rifle, 2. Marlin XT 22 .22 calibre rifle and 3. Howa 1500 .308 calibre rifle.
In May 2022 minor disciplinary action had been initiated by Sergeants Ian Hume and Christopher Hanchard. It appeared thereafter that the offender's behaviour at work deteriorated. At some time after May 2022 the offender telephoned Sgt Hume and stated to him that he felt like running his car into a tree.
At about 12:30pm on Friday, 10 December 2022 the offender and his wife were hosting a birthday party for their daughter at the Palm and Pawn Hotel. They travelled separately with the offender riding his motorcycle, a black Honda, the registration for which expired on 11 September 2022.
During the celebrations the offender became annoyed as the group celebrating the child's birthday commenced singing the birthday song without him as he had gone to get something with which to light the candles on the cake. He left the hotel on his motorcycle and rode to his home address to collect his belongings as he was due to travel to Melbourne the following Sunday to assist his brother with some roof tiling.
The offender's use of the motorcycle constitutes the charge of drive unregistered vehicle which attaches to the s 166 Certificate.
Whilst at the house the offender packed for the trip and took with him his three registered firearms and ammunition as he had planned to go hunting east of Albury en route to Melbourne. The firearms were not loaded.
The offender sent a message on Whatsapp to his brother enquiring as to whether he would have access to his brother's house if he arrived on Saturday, 11 December 2022. The offender left his house at 1:51pm.
He drove to the "enemy house" and waited for a reply from his brother. The "enemy house" is located on the intersection of O'Hehirs and Brunskill Roads Forest Hill, and is part of the RAAF recruit training grounds. The offender has extensive knowledge of the property because of his employment.
While waiting for a reply from his brother the offender cleaned his rifles for the hunting trip in Albury. During this time he was receiving voice messages from his family and was viewing Facebook messenger messages and he left several text and voice messages. At some point in the afternoon the offender's brother messaged back indicating that he was not in Melbourne and that the offender would not be able to access his property on Saturday, 11 December 2022.
Going to the charge of intimidation that attaches to the Form 1 document, at about 5:30pm on Saturday, 11 December 2022 the offender sent a message to a Facebook messenger group chat with members, Bronte Holland, James Klein and Emma Klein. James Klein is also a member of the RAAF. This message contained screen shots of another conversation between Bronte Holland and another woman and was seemingly about the offender. The group tried to console the offender and his wife asked him to call her directly as the conversation was not appropriate for a group chat.
The offender then sent a number of voice notes to the group chat. At the time of investigation, the offender had deleted or "unsent" two of the three voice notes. The voice note that remained in the chat is the offender's voice saying, "cause those cunts fucked me up. Fuck those fuckers fucking destroyed me. I'm not going to have any hesitation fucking pulling the trigger on those fucking cunts. And then you Bronte fucking ruined me. Fucking do your research, you don't know nothing about fucking ADHD and all the fucking other shit that comes with it. You've never actually fucking looked have ya, piece of shit. Just kept pushing me and up and down and fucking all around. Now cunts are gonna fucking die and its because of you".
Upon receiving this message James and Emma Klein attended the offender's residence and noticed that the firearms from the gun safe were missing. At 6:29pm James Klein called emergency services and report the incident and the missing firearms. The offender continued to contact his wife and his brother over the phone although he would not provide his location. During one of the phone calls to his wife the offender stated the three names of people referred to in the voice message as "Hanchard, Hume and Muscat". Police attended the homes of those three people to ensure the safety while the offender could not be located.
At this point of the agreed facts there is a heading "Sequence 1 - Threaten to Use Offensive Weapon with Intent to Intimidate". I presumed and it was ultimately agreed between the parties at the sentence hearing that all of which followed after that heading related to the primary count in respect of which the court is passing sentence.
Police triangulated the offender's phone and were able to confirm that his phone was in the area of the RAAF Base and south of the point. Officers commenced searching for the offender and at about 8pm his vehicle was located at the "enemy house" by PolAir.
Prior to police attending, the offender exited the car to obtain water from a nearby house. He left the car with a rifle he was cleaning. The firearm did not have a bolt nor was it loaded but it did have a scope attached. The offender realised upon exiting the vehicle he had locked himself outside the car as the keys were in the back cargo area. He took the rifle with him to get the water.
In the meantime, police attended the offender's vehicle which was locked and was still warm. Two firearms were clearly visible, laying on an open firearms case. The keys to the vehicle were found in the back cargo area. Police could not see at this time the Howa 1500 .308 firearm in or around the vehicle. En route back to his car the offender saw police at his vehicle and panicked. He still had the firearm with him and he ran and hid in the grass.
At about 10 pm the offender contacted his brother through his Apple Watch and said, "I have fucked up. I have my gun and the police are looking for me… I don't know what to do with the gun". His brother told him to wait for him, that he was on the way and that he would ring him at 2 am. His brother began driving from Echuca to Wagga Wagga.
At 11:06 pm the offender sent a text message saying, "Mate, no weapons tell the chopper to go home he's obviously horrible. Sending fucking tactical response group let's have fun no weapons. They can just beat the fuck out of me".
Upon hearing the helicopter approach his location, the offender hid behind an orange shipping container and continued to move around the sides of the container in order not to be detected by the helicopter. He waited until the helicopter left the area again to refill.
The offender contacted his wife through the Apple Watch. Negotiators spoke to the offender at 12:53 am and he asked who was at his residence. Negotiators spoke to the offender again at 1:15 am. The offender stated, "I can see you at the command post put my fucking wife on the phone, otherwise I am going to try and cause violence…5,4,3,2,1 that's it youse are fucked" before hanging up the phone.
A text message was sent to Bronte Holland saying, "I'm going out with a bang can't answer your phone been real, tell Michael and Nicholas I fucking love them. They are the only ones that wanted to protect me. Tell my babies that I didn't exist. I hope you hear this shot". After 1:30am the offender did not make further contact with police or his wife as his phone battery was flat.
Over the course of the night the offender continued to make tracks throughout the pine plantation and surrounds with the Howa 1500 .308 firearm in his possession. The rifle was fitted with a scope and the offender made admissions to using the scope to watch police officers searching the area on foot. It seems the police were not aware of this.
The offender made a number of efforts to remain undetected, including taking off his shoes, placing them on the ground and making tracks leading to nowhere in case he was being tracked.
In the early hours of the morning the offender decided to surrender himself. He collected his shoes and made his way back to the "enemy house" walking the perimeter road along Brunskill Road and Elizabeth Avenue with his hands in the air wanting to surrender himself to police but the police had left the area by this time.
The offender made his way to the front gate of the RAAF Base however he was unable to find a way through the large perimeter fence. He then went to his home and "deconstructed" is firearm by discarding parts.
At 5:17 am the offender arrived at his home, collected keys from a lockbox outside and entered the house. Moments later Michael and Nicolas Holland, brothers of the offender, pulled up at the house. The offender said to his brother Michael, "I need to hand myself in but I don't know how to do it". Michael said that he would speak to police about this and Michael signalled police who were positioned a short distance down the road.
A short time later the offender exited the house with his brothers and was arrested at 5:23 am on 11 December 2022. He was entered into custody and whilst at the police station Detective Sgt Briggs asked the offender about the location of the firearm. He told Detective Sgt Briggs that he had gotten rid of it, and that he had deconstructed it as taught in the military to "get rid of everything so it can't be used against you". Later that afternoon the offender's brother Michael contacted police and indicated that he had located the firearm which was later surrendered to the Wagga Wagga police Station at 2:25 pm on 11 December 2022.
The offender was taken to the Wagga Wagga Base Hospital for mental health assessment and was detained as an involuntary inpatient until 15 December 2022 whereupon he was taken into custody. He participated in a recorded interview with police, making admissions throughout and providing explanations of his movements over the course of the night.

Assessment

In determining the seriousness of the matter is important to note that s 33B(1) of the Crimes Act contemplates a number of different types of offending. The charge of the court is considering in the matter presently under consideration is the threat to use an offensive weapon rather than actually using an offensive weapon. The offensive weapon involved is a firearm as opposed to a less serious type weapon. The intent was to commit the indictable offence of Intimidation, which carries a maximum penalty of five years imprisonment.
Ms O'Neill, counsel for the offender, at paragraph 7 of her written submissions accepts that the offence occurred in the context of about 12 hours where the offender's whereabouts largely unknown and attracted significant police resources including police helicopter and negotiators. Further whilst the offence instilled considerable fear in members of the offender's family, his colleagues and law enforcement officers, there was no risk of actual injury or death by the offender's possession of the firearm because it was not loaded. Whilst that is an agreed fact, it was not known to the police officers and the offender's family at the time. Further, as the Crown correctly submits, the fact that the firearm was not loaded was never made known to the authorities by the offender. General threats of violence were made but there was no attempt to carry those threats out. The offence was unplanned. I agree with counsel for the offender in the submission that when analysed the relevant threat to use the firearm was a threat made to the offender's wife to use the firearm to suicide.
The Crown submits that the matter falls towards the high-end of objective seriousness. Ms O'Neill submitted that as the matter does not carry a non-parole period it is not strictly necessary to assess the seriousness of the matter by reference to a range.
The Crown referred to the decision of R v Mostyn (2004) 145 A Crim R 304 in particular at [186]-[187]. The facts in that matter were more serious than the matter presently under consideration.
Taking into consideration all of the matters set out above I am of the opinion that this matter is a serious example of the offence and if more precision is required I would assess the matter at being within the mid-range of seriousness. In coming to this assessment I have had regard to the report of Mr Awit, psychologist, at paragraph 36 and the decision of Tepania v R [2018] NSWCCA 289 at [112] and [119] per Johnson J.
Further, there is the offence of Not Keep Firearm Safely which attaches to the s 166 Certificate. Two firearms were involved which were left in the locked vehicle. The facts are silent as to whether ammunition was found with the firearms and accordingly I cannot be satisfied that there was ammunition. If it is necessary to assess this matter I would also find that it is a mid-range offence.

Criminal history

The offender was born on 12 September 1992 and accordingly is 31 years of age. Given that the only matter on his record is an entry relating to a matter in the Magistrate's Court at Echuca, Victoria for driving whilst disqualified where he was dealt with without conviction in 2012, the offender in my view should be dealt with as a person of prior good character receiving the credit for his lack of record that that finding entails.

General Deterrence

Although the impact of general deterrence is ameliorated in this case because of the causal connection between a mental health condition and the offending with which I will deal shortly in these remarks, given the offending and the very considerable community resources expended general deterrence must have some work to do in this sentencing exercise. In this regard I note the comments of Howie J in R v Mostyn (2004) 145 A Crim R 304 at [186]: "It is unnecessary to emphasise once again the serious nature of the s 33B offence or to refer to decisions of this court to have emphasised the importance of general deterrence when sentencing for offences directed at police officers who are simply carrying out the duties…"
The offending and the decision to which I have referred is clearly more serious than that presently under consideration. However general principle as set out by Howie J has it seems to me general application.

Sentence Assessment Report

The report notes that the offender is in receipt of the military pension through the Department of Veterans Affairs that commenced on 23 November 2023. The offender is also employed on a part-time basis in administration for a construction company.
The offender told the author of the report that he had been in possession of the firearms and was intending a hunting trip the following day. He also revealed that he intended to use the firearm as a means of suicide.
Further, the report sets out that the offender disclosed to the author that he used alcohol and illicit substances the evening before the offending and reflected that he was still likely under the influence at the time of commission of the offences. The offender told the author of the report that he was using drugs as a form of self medication when his mental health deteriorated and that he was using up to 1 g of methamphetamine a day at the time of commission of the offences.
The report sets out that the offender was discharged from the military in April 2022 with post traumatic stress disorder, delusional disorder, anxiety and depression. The offender has maintained engagement with both a psychologist and a psychiatrist for a number of months.
Clearly the offender indicated genuine remorse to the author of the report and he reflected that he placed most of the blame on other people especially his wife during the period of his life around the time of the offending.
The author of the report assessed the offender as being a low risk of reoffending.
However under the heading "supervision plan" the author of the report sets out that due to the offender's low risk of reoffending if the court makes a supervised order, Community Corrections will monitor him for any indicators of increased risk. As I read the contents of page 4 of the report it seems to me that what the author is in fact saying is that despite any order the court may make requiring that the offender be supervised, such order will have no effect in that the offender will not be supervised.

Subjective Case

No oral evidence was called from behalf of the offender however a very considerable volume of written material was tendered on the offender's behalf. The material relied upon by the offender is indexed and is collectively Exhibit 1 on sentence.
The first document in Exhibit 1 is a letter from the offender who commences by expressing remorse and acknowledging the hurt, trauma and destruction his caused many individuals including his fellow Air Force members and his wife and family. He goes on to say that his actions leading up to and during the incident were unacceptable from both a civilian and more importantly military perspective.
The offender goes on to describe experiences whilst bail refused in custody including multiple stabbings and the screams of other inmates being beaten on a regular basis. Upon being bailed he went to a rehabilitation centre and participated in a six-month program after which he became abstinent from illicit substances and his mental health improved.
Further, the offender sets out steps he has taken since being granted bail including regular attendance at Narcotics Anonymous, attending upon psychologists and a psychiatrist, attending a rehabilitation consultant, attending drug and alcohol outpatient program and counsellor, attending church on a regular basis, working 15 hours per week and weekly urinalysis. He is also working toward reconciling with his wife and family.
I will deal shortly in more detail with the contents of the report from Mr Chafic Awit, psychologist. However at paragraph 30 of that report the author notes that the offender expressed remorse on numerous occasions throughout the three consultations he had with him.
Given the contents of the sentencing assessment report, the letter from the offender and the contents of the report of Mr Awit, I am very firmly of the opinion that the offender is entitled to a finding that he is remorseful. I observe the expression of remorse in the letter by the offender is more fulsome and more thorough than one normally sees in such letters. I am more than satisfied that the expressions of remorse are genuine.
I now go to deal with the report of Mr Awit in detail. At page 1 of the report he gives a diagnosis that the offender is suffering post traumatic stress disorder, borderline personality disorder, major depressive disorder and substance use disorder (in early remission) and alcohol use disorder (in early remission).
Given the contents of the report at paragraph 2 to 7 inclusive, the principles enunciated by the High Court in Bugmy v the Queen [2013] HCA 37 are enlivened to a limited extent, reducing the moral culpability of the offender to that limited extent. The offender was subjected to inappropriate corporal punishment and when he was 16 his parents sent him to be an exchange student in Brazil. He was robbed at gunpoint whilst in Brazil.
After returning from Brazil the offender was made to repeat year 11, which meant that his friends were in year 12. He completed four months of schooling then left school and commenced an apprenticeship as a chef. He completed two and half years of his apprenticeship, however his drug use meant that he did not continue with this apprenticeship. In 2013 he joined the Royal Australian Air Force and participated in a number of training programs. He completed years 11 and 12 whilst a member of the military. He also obtained an advanced diploma in human resource management and certificate IV in business. The offender was deployed to the Middle East in 2014.
The offender was promoted to Corporal in 2017 and posted to the Recruit Training School (at RAAF Base Wagga) as an Instructor. He was temporarily promoted to Sergeant in 2020 and was given the substantive rank of Sergeant later that year. The offender was medically discharged in November 2023, and was last on active duty on 10 December 2022. It would seem that there were issues within the workplace and there was an incident during training which led to the offender being reprimanded. He started feeling suicidal, went on leave and continue to experience symptoms of depression and anxiety.
Mr Awit notes at paragraph 11, "upon further reflection of Mr Holland's employment with the air force it became apparent that the same recognition seeking behaviours he had with his father he had with his superiors in the Air Force."
The report sets out that the offender was introduced to cocaine that the age of 16 while he was in Brazil. After leaving school he commenced using cannabis and began using amphetamine and methamphetamine until about six months before he joined the Air Force. There was some illicit drug use whilst he was in the Air Force, mostly cocaine and ecstasy every couple of months. He commenced using methamphetamine daily after being reprimanded work.
The report acknowledges the psychological counselling and treatment the offender is currently receiving. The author notes that the offender has struggled with mental health going back to his adolescent years.
Mr Awit conducted a number of tests and opines at paragraph 29 "the history given by Mr Holland, alongside the clinical opinion of the writer supports a diagnosis of post-traumatic stress disorder; borderline personality disorder; major depressive disorder; substance use disorder and alcohol use disorder." The report then goes into some detail of the symptoms of these various disorders.
I have already noted the offender's remorse expressed in the author of the report.
At paragraphs 33 to 35 of the report the author sets out the offender's version of the offending and the offender's feeling feelings at the time of the offending. There is nothing that is inconsistent with the agreed facts.
Mr Awit opines at paragraph 36 that there is a causal connection between the mental conditions suffered by the offender at the time and the offending. I note that the Crown did not object to the tender of the report nor was the author of the report required for cross-examination.
The report writer goes on to opine (paragraph 38) that the offender requires an intensive treatment program which the author goes on to outline. The author maintains that such a program is not available within the prison facility. The author also says that the offender is not likely to fare well in prison; his conditions have not entered remission and a term of incarceration is likely to exacerbate his underlying symptoms. I understand this to be to the effect that custody would be more onerous for the offender.
Given that there is a causal connection between the mental conditions being suffered by the offender at the time of the offending, the principles enunciated by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178] are enlivened. This has the effect of reducing the moral culpability of the offender, reducing the impact of general deterrence and specific deterrence. Further, noting the opinion of Mr Awat, custody would be more onerous for the offender.
Mr Awit also sets out at the end of his report a Treatment Plan. In particular I note that the offender has continued treatment with Ms Josephine Cannon, treating psychologist, for no less than 12 months. The treatment plan also includes being compliant with medication and being abstinent from alcohol and illicit substances.
Ms Cannon, the offender's treating psychologist, has also provided a short report confirming the offender has consulted her and she continues to treat him. She confirms the diagnosis of Post Traumatic Stress Disorder. The offender is consulting Ms Cannon on a fortnightly basis.
The defence tender bundle, exhibit 1 on sentence contains a number of testimonial references. His brother, Michael Holland, speaks well of the offender's efforts at rehabilitation since the offending. The offender's wife Bronte also supports the offender and indicates a willingness to continue to support him as the offender continues his rehabilitation. The offender's wife also confirms that the offender is attending Narcotics Anonymous meetings, drug and alcohol counselling, doctor's appointments and psychology appointments. The offender's aunt Lynette Broon also confirms the offender's efforts at rehabilitation.
One of the references is from SQNLDR Forbes, who was one of the senior officers to whom the offender reported. SQNLDR Forbes sets out that the offender was well respected by his team, peers and the unit executives. She described the offender as the "go to instructor" who worked extremely hard to influence positive team culture wherever he could. The offender was awarded the Specialist Instructor of the Year Award for his exceptional leadership, dedication and commitment to training and adherence to defence values. He was promoted to the substantive rank of sergeant in April 2022. The offender volunteered to assist with the floods in Victoria in late 2022. SQNLDR Forbes sets out that upon the offender's release from bail he rang her and said, "Michelle, I will do whatever it takes not to go back to that place and seeing my kids is enough motivation to never use drugs again."
Upon his release to bail the offender entered the Connect Global Limited residential drug and alcohol rehabilitation and training centre. The offender completed the program and is now undertaking the outpatient extension program. The report from the rehabilitation centre dated 11 January 2024 sets out that the offender participated in the program with a positive attitude, during the six months he did not miss one session and he contributed well in all the group sessions in which he participated. Urine drug analysis tests have all returned negative result. The report goes into some detail as to what was involved in the participation in the program.
At page 4 of the report the following appears: "I have known Brandon since he began his recovery program and found him to be very respectful, adaptable and flexible. Since his arrival at Connect Global he has shown a deep desire to change his life, with him putting all his words into action, always willing to learn to create any lost for himself and his family."
The author of the report also noted the offender's commitment to being disciplined and consistent through his daily routine. The offender also mentored other participants in the program and the author of the report opines that the offender's participation has definitely helped fellow residents. The author indicates enthusiastically that he will continue to stay in touch with the offender in the outpatient extension program.
There is a further letter from Connect Global dated 28 March 2024 confirming that the offender successfully completed the program on 20 January 2024. The author also sets out that the offender showed a deep desire to change his life and to be accountable for his actions and choices of the past.
The offender has enrolled in the Therapeutic Day Rehabilitation Programme conducted under the auspices of the Salvation Army at Bendigo. The program is for eight weeks and commenced on 25 March 2024. Part of the material is a letter dated 26 March 2024 indicating that the offender has engaged in that program. The offender has also been attending Narcotics Anonymous weekly since January. The offender's sponsor speaks well of the offender's participation. There is a certificate to indicate the offender has successfully completed and anxiety and depression program.
The offender is employed by a company Gen3Roofing which is a roof tiling and construction company at Moama. He works completing administrative tasks 15 hours per week. The company would like to have the offender continue to work for them.
The defence tender bundle also includes the offender's Certificate of Service with the Royal Australian Air Force. He served from 12 November 2013 to the separation on 22 November 2023.
Given the offender's age, lack of record and the very considerable steps the offender has taken of his own volition to rehabilitate himself, I have no hesitation whatsoever in finding that the offender is unlikely to reoffend. I am fortified in this finding by the contents of Mr Awit's report, essentially for the same reasons but in particular the steps the offender has taken himself so far as rehabilitation is concerned, I also have no hesitation in finding that the offender has good prospects of rehabilitation.

General Remarks

In passing sentence I will need to have regard to and give proper effect to ss 3A and 5(1) of the Crimes (Sentencing Procedure) Act 1999. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons 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 or her actions, 6. to denounce the conduct of the offender, 7. to recognise the harm done to the victim of the crime and the community.
Section 5(1) of the Act provides: A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
At the sentence hearing I gave an indication of a preliminary view that the offence of Not Keep Firearm Safely attaching to the s 166 Certificate also crossed the threshold in s 5(1) of the Crimes (Sentencing Procedure) Act. I have a memory of the Crown making an oral submission to the effect that taken in isolation it would not cross that threshold. On further and more complete contemplation on the matter I am of the opinion that the matter attaching to the s 166 Certificate does not cross the s 5(1) threshold.
Given all of the circumstances of the offending and taking into account the various subjective matters, I have concluded that the appropriate starting point for the sentence is 3 years 6 months from which is deducted the 25% discount for the utilitarian value of the plea of guilty leaving a total sentence of 2 years 7 months in round figures. The offender must get the credit for the 7 months he spent in custody before being released on bail. I am not minded to further reduce the sentence making an allowance for the quasi-custody while the offender was in residential rehabilitation. However, that period of quasi-custody may be able to be taken into account in another way.
Now, the consideration turns to the manner in which the sentence is to be served. As I understood the written and oral submissions advanced on behalf of the offender it is conceded on behalf of the offender that the threshold within s 5 of the Crimes (Sentencing Procedure) Act is crossed. However, the submission advanced is that any sentence should be served way of Intensive Correction Order. I note that since Stanley v DPP [2023] HCA 3 this is a common submission. The Crown strongly opposed the imposition of an Intensive Correction Order and submitted that only a sentence of full time imprisonment is appropriate in this matter.
Section 66 of the Crimes (Sentencing Procedure) Act relevantly provides: (1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. (2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. (3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.
There has been a great deal of litigation concerning this legislation. I note that the Honourable Mark Speakman SC, the then Attorney General in the Second Reading Speech introducing the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 (the 2018 sentence reforms) said: "These orders [a reference to Intensive Correction Orders] will be available for offenders sentenced to up to two years imprisonment, except for the following offences: murder, manslaughter, sexual assault, child sexual offences, offences involving the discharge of a firearm, terrorism offences and breaches of serious crime prevention orders and public safety orders. In addition, a court must not impose an intensive correction order for a domestic violence offence unless satisfied that it will adequately protect the victim or any likely co-resident of the offender. Proposed section 66 of the Crimes (Sentencing Procedure) Act will make community safety the paramount consideration when imposing an intensive correction order on offenders whose conduct would otherwise require them to serve a term of imprisonment. Community safety is not just about incarceration. Imprisonment under two 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. That is why proposed section 66 requires the sentencing court to assess whether imposing an intensive correction order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. Proposed section 73 of the Crimes (Sentencing Procedure) Act sets out the standard conditions of the intensive correction order - namely, not to commit an offence and to submit to supervision. All offenders will be required to submit to supervision. Community corrections uses a risk framework that assigns different levels of intensiveness to each offender's supervision. Offenders who are at high risk of reoffending and have complex issues are supervised intensively. Supervision for lower risk offenders is less intensive and may be suspended in appropriate circumstances. The discretion to suspend supervision will be subject to requirements specified in the regulations to ensure that the power is properly exercised and does not go unfettered. Proposed section 73A provides for the additional conditions of the intensive correction order, which will enable courts to tailor the order to hold offenders accountable and to tackle their offending behaviour. Courts will be required to impose at least one of the conditions in proposed subsection (2) in addition to the standard conditions in section 73, but can set a time limit on how long the order is in force.
As I commented earlier in these reasons the sentencing assessment report makes it plain enough that Community Corrections will suspend supervision immediately if the offender is subject to a community based order. With respect this does not seem to be in accordance with the intention of the Parliament in the legislation was enacted.
The plurality (Gordon, Edelman, Steward and Gleeson JJ) in Stanley v DPP said at [72]-[77]: "[72] There was no dispute before this Court that s 66 imposes specific mandatory considerations upon the decision maker to make, or refuse to make, an ICO. Section 66(1) requires the court to treat community safety as the "paramount consideration". In the context of s 66(2), community safety principally concerns the possible harms to the community that might occur in the future from the risk of reoffending by the offender. The issue is not merely the offender's risk of reoffending, but the narrower risk of reoffending in a manner that may adversely affect community safety. [73] The identification of community safety in s 66(1) as the "paramount" consideration also indicates that s 66 is concerned with an aspect of the sentencing task that requires the sentencing court to have a particular and different focus at the third stage of the three-step process described earlier. When the court is deciding the discrete question whether or not to make an ICO, community safety is the consideration to which other considerations are to be subordinated, although other considerations must or may be taken into account as prescribed by s 66(3). [74] Section 66(2) explains how the sentencing court must engage with the paramount consideration of community safety. For the purpose of addressing community safety, s 66(2) requires the sentencing court to undertake a task of assessing the possible impacts of an ICO or full-time detention on the offender's risk of reoffending. Section 66(2) gives effect to Parliament's recognition that, in some cases, community safety will be better promoted by a term of imprisonment served in the community than by full-time detention. Section 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety. Thus, s 66(2) requires the sentencing court to look forward to the future possible impacts of the sentence of imprisonment, depending upon whether the sentence is served by way of full-time detention or by way of intensive correction in the community. [75] The assessment required by s 66(2) is not determinative of whether an ICO may or should be made. To the contrary, as is plain from s 66(3), the assessment is required for the purpose of addressing community safety as the paramount, but not the sole, consideration in deciding whether or not to make an ICO. Thus, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). In that respect, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending. [76] That said, community safety will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive. There may be cases where a court cannot be satisfied whether serving a sentence by way of intensive correction in the community or serving a sentence in full-time custody would be more likely to address reoffending. In those cases, other factors will assume significance and will be determinative. On the other hand, there will be cases where a court concludes that serving the sentence by way of intensive correction in the community is more likely to address reoffending. [77] While aspects of community safety underpin some of the general purposes of sentencing, such as specific and general deterrence and protection of the community from the offender, those aspects will have been considered in deciding whether to impose a sentence of imprisonment (ie, before considering an ICO). Community safety is required to be considered again and in a different manner under s 66 when considering whether to make an ICO. At this third step, community safety in s 66(1) is given its principal content by s 66(2), namely, the safety of the community from harms that might result if the offender reoffends, whether while serving the term of imprisonment that has been imposed or after serving that term of imprisonment." (Citations omitted.)
Since the decision in Stanley v DPP there have been a number of decisions of the Court of Criminal Appeal on the subject. Gleeson JA (Hamill J agreeing with brief additional comments, Ireace J agreeing) in Zheng v R [2023] NSWCCA 64 at [281]-[286] said (footnotes omitted): "[281] Five points emerge from the joint judgment in Stanley. [282] First, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). The issue is not merely the offender's risk of reoffending, but the narrower risk of reoffending in a manner that may affect community safety. [283] Second, s 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety. [284] Third, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending. [285] Fourth, the consideration of community safety required by s 66(2) is to be undertaken in a forward-looking manner having regard to the offender's risk of reoffending. [286] Fifth, while community safety is not the sole consideration in the decision to make, or refuse to make, an ICO, it will usually have a decisive effect unless the evidence is inconclusive."
In Tonga, Samuel [2023] NSWCCA 120 Basten AJA (Walton & Hamill JJ agreeing, both with additional comments) said at [49]: "Accepting that the judge did indeed give weight to general deterrence in declining to impose an ICO, the applicant's submission seeks to draw a bright line between community safety and other purposes of criminal sentencing. Of the seven purposes identified in s 3A of the Sentencing Act, there may be tensions between some, or between some in some circumstances, but often they will militate in favour of the same outcome. While it is true that s 66(2) addresses that element of community safety which concerns the individual offender's risk of reoffending (in a particular way), as Stanley recognised, that is not to exclude other aspects of sentencing which may affect community safety, nor purposes such as general deterrence which do not focus upon the individual but may tend to protect community safety. It was not an error to take general deterrence into account: s 66(3) permitted that course. The decision as to whether or not to impose an ICO is not to be determined solely by reference to an assessment of the course more likely to address the offender's risk of reoffending; and when that course cannot be identified, other mandatory considerations will become significant and possibly decisive."
The Court of Criminal Appeal in DG (No. 1) v R [2023] NSWCCA 320 disapproved the practice of deducting any period spent in custody bail refused from a sentence in order to get the length of the sentence within the limits whereby the sentence can be served by way of Intensive Correction Order.
One further and more recent decision is Khanat v R (Cth) [2024] NSWCCA 41. Cavanagh J (Ireace J agreeing, Wilson J dissenting) said at [83]: "The question of whether the degree of leniency attached to an ICO may be a relevant factor was taken up N Adams J in Chan. Her Honour stated at [139]-[140]: 'There can be no doubt that imposing an ICO involves a degree of leniency. In Pullen Harrison J observed the following at [53]: "Although an ICO ordinarily involves substantial punishment, it also reflects a significant degree of leniency: R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225 at 84 [106]; Whelan v R (2012) 228 A Crim R 1; [2012] NSWCCA 147 at [120]."' More recently, Basten JA observed the following in Tonga at [20]: 'Were an ICO not seen as a more lenient sentence than the same period served in custody, there would be no application for leave to appeal. Secondly, whether or not one thinks that the proposed supervision plan amounts to 'intensive correction', it would have been vastly less intrusive than a fulltime deprivation of liberty.'"
Cavanagh J went on to say at [89]-[95]: "[89] Having said that, it does not seem to me that anything said in Stanley leads to the conclusion that a positive finding that the risk of reoffending is best addressed by serving the sentence in the community mandates the ordering of an ICO. That is, I reject the applicant's primary submission that once the positive finding was made an ICO must necessarily have been ordered. [90] I say this for the following reasons. [91] Firstly, in Stanley (at [75]) their Honours stated that the assessment required by s 66(2) is not determinative of whether an ICO may or should be made. As required by s 66(3), when deciding whether to impose an ICO, the sentencing court must also consider the provisions of s 3A and any other relevant common law sentencing principles and may consider any other matters that the Court thinks relevant. The exercise is thus evaluative, albeit community safety must be treated as the paramount consideration. [92] Secondly, although the Court observed (at [76]) that community safety will usually have a decisive effect unless the relevant evidence is inconclusive, there is no suggestion that an ICO must be ordered consequent on a positive finding on addressing the risk of reoffending. It may usually have a decisive effect but that leaves open the possibility that there will be circumstances in which, even giving paramountcy to community safety and a positive finding on the risk of reoffending, an ICO may not be ordered. [93] The Court did not identify what those circumstances might be but left open the possibility that, having considered the matters referred to in s 66(3), the sentencing court may decline to impose an ICO, subject to having given paramountcy to community safety in its consideration. [94] Thirdly, the sentencing exercise is essentially discretionary. The sentencing court comes to a decision as to sentence through a process of instinctive synthesis. I do not take anything said in Stanley to be fundamentally altering that approach. [95] It follows that I do not accept that a positive or conclusive finding that the risks of reoffending are better addressed in the community mandates an order for an ICO."
It is quite plain from the legislation and the body of authority that has developed that in considering whether to permit an offender to serve a sentence by way of Intensive Correction Order other considerations are subordinate to community safety. Indeed, I make so bold as to observe that the purpose of punishment in s 3A(a) of the Crimes (Sentencing Procedure) Act, 1999 to ensure that the offender is adequately punished for the offence, is subordinate to community safety.
Returning to the matter presently under consideration given the lack of record of the offender and the very substantial efforts he has made since his release on bail, I find that community safety is not a concern. Accordingly, s 66(1) is determined in favour of the offender. This assessment can only be made on the material and evidence available at the time of sentence.
Mr Awat recommends further and relatively intensive treatment. The offender has indicated a willingness to participate in treatment and there is nothing in any of the substantial body of material before me to suggest that he will not continue to willingly engage in further treatment. As I have often observed, the "forward looking" approach must at least to some extent be informed by what has occurred in the past. In all of the circumstances I find that provided the offender continues to engage with the treatment as recommended by Mr Awit then his risk of re-offending is more likely to be addressed by his serving the sentence by way of Intensive Correction Order. Accordingly, s 66(2) is determined in favour of the offender.
I have set out s 3A of the Crimes (Sentencing Procedure) Act a little earlier in these reasons. Deterrence both general and specific are ameliorated in this case by reason of the causal connection of the mental health condition and the offending. Section 66(3) also entitles the court to take into account any other matter the court thinks fit. It is by that provision that I take into account the period of quasi-custody served by the offender in rehabilitation. The offender has clearly demonstrated that he can comply with court orders (i.e. the bail) and with treatment and counselling.
The averment of the offence contrary to s 33B of the Crimes Act in the Charge Certificate does not nominate a victim of the Intimidation. Neither does the relevant Court Attendance Notice. However, given the facts the domestic partner of the offender is the victim.
Given the attitude of the victim and the rehabilitation already undertaken I am satisfied in the present matter that an Intensive Correction Order will adequately protect the victim.
A further consideration is that to return the offender to full time custody would be counter productive so far as his rehabilitation is concerned.

Orders

The offender is convicted of the offence that: On 11 December 2022 at Forest Hill in the State of New South Wales, did threaten to use an offensive weapon with intent to commit the indictable offence of intimidation
Consequent upon that conviction and taking into account the Form 1 document, the offender is sentenced to Imprisonment for 2 years. That sentence of imprisonment is to be served by way of Intensive Correction Order that is conditioned that the offender: 1. Not commit any further offences; 2. Be subject to the supervision of the Department of Community Corrections; 3. Be abstinent from alcohol and all other substances unless prescribed for him by a medical practitioner; 4. Continue treatment and counselling with Ms Josephine Cannon or some other suitably qualified psychologist; 5. Continue treatment and counselling with Professor Neil Jayasingam, or some other suitably qualified psychiatrist; 6. Be compliant with any medication prescribed by any treating health professional; and 7. Strictly comply with any Apprehended Domestic Violence Order that is imposed nominating the offender as the defendant.
In respect of the offence of Not Keep Firearm Safely attaching to the s 166 Certificate the offender is convicted. Consequent upon that conviction he is released on a Community Corrections Order pursuant to s 8 of the Crimes (Sentencing Procedure) Act for a period of 2 years. That Community Corrections Order is conditioned that the offender: 1. Not commit any further offences; 2. Appear for sentence at any time in respect of any breach within the said period; 3. Accept the supervision of the Department of Community Corrections; and 4. Be abstinent from alcohol and all other substances unless prescribed for him by a medical practitioner;
In respect of the charge of Drive Unregistered Vehicle attaching to the s 166 Certificate the offender is convicted. Pursuant to s 10A of the Crimes (Sentencing Procedure) Act no further penalty is imposed.
All firearms are forfeited to the Crown for destruction.
A copy of these reasons and the report of Mr Awit are to be forwarded to the Department of Community Corrections.

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 May 2024

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