District Court New South Wales Medium Neutral Citation: R v Prouting-Smith [2020] NSWDC 644 Hearing dates: 2 October 2020 Decision date: 16 October 2020 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full-time custodial sentence to be served by Intensive Corrections Order. For orders see [79]. Catchwords: Multiple break, enter and commit serious indictable offence. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Karout v R [2019] NSWCCA 253 R v Fangaloka [2019] NSWCCA 173 R v Gray [2018] NSWCCA 241 R v Holloway [2016] NSWCCA 166 R v Jarrold [2010] NSWCCA 69 R v Osenkowski (1982) 30 SASR 212 R v Ponfield (1999) 48 NSWLR 327 R v Pullen [2018] NSWCCA 264 Small v R [2018] NSWCCA 290 White v R [2016] NSWCCA 190 Category: Sentence Parties: Director of Public Prosecutions (Crown) Anthony Prouting-Smith (Offender) Representation: Counsel: Ms M Phelps (Offender) Solicitors: Mr K Ng (Crown) File Number(s): 19/184263 19/266563 Publication restriction: Nil REMARKS ON SENTENCE 1. The offender is being sentenced for two offences pursuant to s 112(1)(a) of the Crimes Act 1900 of break, enter and commit serious indictable offence (steal), being sequences 1 and 3. The maximum penalty for each offence is 14 years imprisonment and there is no Standard Non-Parole Period proscribed. 2. The offender has asked that a further matter be taken into account on a Form 1 in respect of sequence 1. It is an offence pursuant to s 113(1) of the Crimes Act 1900 of attempt break and enter dwelling house with intent to steal (sequence 9). The offender has admitted his guilt in respect of that offence. 3. The offender has also asked that two further matters be taken into account on a Form 1 in respect of sequence 3. They are offences pursuant to s 117(1)(a) of the Crimes Act 1900 of larceny (sequence 7), and an offence pursuant to s 114(1)(d) of the Crimes Act 1900 of enter building/land with intent to commit indictable offence (sequence 10). The offender has admitted his guilt in respect of those two matters. 4. All of the offences were committed whilst the offender was on parole. Three offences subject to the Form 1's, referred to above, were committed between 17 and 18 March 2019. Sequences 1 and 3 were committed on 25 and 26 May 2019. On 15 June 2013, the offender had been sentenced to an aggregate sentence of 7 years commencing on 3 October 2013, with a non‑parole period of 4 years. He was released to parole on 2 October 2017. 5. The offender was arrested in respect of sequences 1 and 3 on 13 June 2019. He was subsequently arrested in respect of the three Form 1 matters (sequences 7, 9 and 10) and was in custody from 27 August 2019 until 22 January 2020, a period of 149 days. The sentence hearing 1. The sentence hearing took place on 2 October 2020. The Crown Sentence Summary became Ex A. It contained an Agreed Statement of Facts which may be summarised as follows. Sequence 1 – Everwell Medical Centre 1. At 10.22pm on Saturday 25 May 2019, the accused entered the Everwell Medical Centre at Chatswood by breaking the lock on the ground floor side door. In the reception centre he opened a number of drawers and rummaged through the contents, throwing paperwork and medical documents onto the floor. He was not wearing gloves but CCTV footage showed him attempting to cover his hands with his jumper sleeves. Two hundred dollars was taken from the reception centre. The offender then moved through a number of rooms within the practice. He removed a number of items from a fridge and left the fridge door open. He also rummaged through a number of cupboards and before leaving the premises emptied the contents of a large container filled with cleaning liquid across the reception desk. The offender left via the back door of the premises. Sequence 3 – Sugar Cube Café 1. At about 11pm on 25 May 2019, the owner of the Sugar Cube Café, which was located adjacent to the medical centre, locked and secured the café after cleaning the store. At 11.32pm the offender was shown approaching the entrance to the premises. As he neared the locked sliding door, he placed the hood over his head and attempted to cover his hands using the sleeve of his jumper. At 11.38pm CCTV footage revealed him producing a crow bar and gaining access by levering the implement with his body weight. Once inside the premises, the accused accessed a fridge and removed and opened a number of soft drink cans. The offender also ate fruit and vegetable he found in the premises. Before leaving the café, the accused took the following items: * An Apple ipad air worth $800 * A Lenovo tablet worth $250 * An eftpos card worth $50 * An Apple iphone worth $400 Before leaving the café at 11.54pm, the offender poured cleaning bleach all around the store. 1. After his arrest on 13 June 2019, the offender participated in an electronically recorded interview. He stated he had no recollection of the incidents and could not provide a reason why his prints were located within the medical centre. His DNA was linked to a number of items in the café. 2. The facts in respect of the matters contained on the Forms 1 are as follows: 1. Sequence 9 – offence pursuant to s 113(1) of the Crimes Act 1900 At about 6.18am on Sunday 17 March 2019, the accused attended Belrose Bowling Club wearing a dark hooded jumper, black gloves and a distinctive red Halloween mask. He was carrying a maroon bag containing a sledge hammer. The offender attempted to force open the main entrance to the club using the sledge hammer. An employee, who was working at the location, approached the accused and asked "What are you doing?", and the accused said "Oh fuck", and immediately fled. Investigating police viewed CCTV footage of the incident and took photos from the footage. 1. Sequences 7 and 10 – offences pursuant to s 117(1)(a) and s 114(1)(d) of the Crimes Act 1900. These offences occurred at a construction site at Belrose. On 15 March 2019 the site was secured at 4pm to prevent access by members of the public. Between 6.20am on Sunday 17 March and 7am on Monday 18 March, the accused broke into and stole property from the construction site, which was approximately two kilometres from the Belrose Bowling Club. The offender gained entry through a wire barricade fence at the rear of the premises. Inside the premises he entered the break room and consumed a number of items from a fridge located there. The following items were stolen from the site: * Two electrical cords valued at $50 * Two clamps valued at $100 * A box of batten screws valued at $144 * Five gas canisters to power nail guns valued at $150. Police attended the site on Monday 18 March 2019 and seized gloves and a red mask left there by the offender. A DNA profile obtained from both items match the offender. Following his arrest, the offender participated in an electronic interview where he declined to provide substantive answers about the offences. He denied wearing a red mask and had no explanation for his DNA being located on the inside of the mask. 1. Exhibit A also contained the criminal antecedents of the offender. On 30 May 2014, he had been convicted of the following offences: Assault with intent to rob, armed with offensive weapon (2 counts) Armed robbery with offensive weapon (2 counts) Use offensive weapon to prevent lawful detention Use offensive weapon to prevent lawful detention Police pursuit – not stop – drive recklessly 1st offence (2 counts) Driving while licence expired (1st offence) Drive vehicle under influence of alcohol 1. These were the offences for which he was sentenced by way of an aggregate sentence of 7 years with a non-parole period of 4 years on 15 June 2013. 2. The offender's criminal antecedents included offences going back to 2005 which included several PCA offences, goods in custody, drive under the influence of alcohol or other drugs (2013), and destroy or damage property (2013). 3. Exhibit A included a breach of parole report under the hand of Mr D Mulvaney dated 19 June 2019. The offender had been released to parole on 2 October 2017 and his sentence was due to expire on 2 October 2020. The offender admitted that following his release to parole he relapsed to using illicit substances. During his interview on 23 May 2019, he admitted that for a period of five months he had been using heroin on a daily basis, coupled with methylamphetamine use on a regular basis. In addition, he was in breach of a prohibition on gambling condition. His response to supervision was considered borderline unsatisfactory. Whilst he had at first obtained stable employment and made some positive changes to his criminogenic needs, the changes he had made were considered somewhat superficial. From 11 June 2019, he had participated as an inpatient in a drug and mental health rehabilitation program and was compliant with the activities of that program. The author acknowledged that he had taken steps to address both his mental health and illicit drug use issues. 4. Exhibit A also included a letter under the hand of Ms T Healey dated 16 July 2020 confirming that the offender had been in the We Help Ourselves (WHOS) residential rehabilitation program since 6 May 2020. WHOS reported that he had engaged well in the program and had been compliant with treatment and program requirements. 5. A Sentencing Assessment Report under the hand of Ms J Slattery-McDonald dated 30 September 2020 became Ex B. The author noted that the offender currently resided with his parents after leaving his residential rehabilitation in August 2020. His partner indicated a supportive relationship. The offender was working in his father's business as a qualified motorcycle mechanic. Under the heading "Attitudes", the offender had stated that at the time of the offences he had been struggling mentally with the stress of revealing his sexual orientation to his family. He had a hazy account of events, attributed to his heroin use at the time. He did not, however, attempt to minimise or justify his role in the offences. 6. The author noted the offender had an extensive history of poly-substance abuse, commencing with binge drinking as a teenager, before progressing to regular methamphetamine and heroin use. He had overcome his methamphetamine addiction whilst incarcerated between 2013 and 2017, however, he became addicted to heroin soon after his release. A previous report had noted the interplay between the offender's acquired brain injury from a 2005 road trauma and drug use on his impulse control. 7. The report noted that the offender expressed both remorse and shame over his criminal conduct. He had successfully completed the WHOS residential rehabilitation from 6 May 2020 to 16 August 2020. The author noted he had been an active member of the WHOS therapeutic community, demonstrating positive role modelling and engaging with a range of programs such as harm reduction, relapse prevention and mental wellness groups. Since returning to the community, the offender has continued to engage with online Narcotics Anonymous meetings with the support of his partner. He was willing to undertake community service work. 8. The offender was assessed as a medium/low risk of reoffending and was also assessed as suitable to undertake community service work. He had remained actively engaged in the supervision process and had participated in intervention to address his offending behaviour. The offender's documentary evidence 1. The offender relied on the following evidence. (i) Exhibit 1 - an affidavit of the offender's mother. 1. The offender was born on 30 November 1987 and when he was two and half years old he had a near drowning experience which resulted in him requiring speech therapy. He had a normal upbringing, meeting the usual milestones. In 2005 the offender was involved in a serious motor vehicle accident. He suffered significant injuries and was placed in an induced coma for seven days. He suffered right frontal lobe damage, memory loss and concentration issues. He also suffered short-term memory loss and was left feeling angry and frustrated. 2. The offender left school after completing Year 10 and commenced an apprenticeship in carpentry. He had difficulties concentrating at TAFE and worked for a time in the family business as a motorcycle mechanic. Mrs Prouting‑Smith described her son as a "different boy" following the 2005 accident. His mental health began to decline and his drug use increased. Around 2012 he developed a serious gambling addiction. 3. Mrs Prouting-Smith deposed that following his release in 2007, the combination of the offender coming out as a homosexual, and reintegrating into the community, became too stressful. On an occasion when she had visited his home she found a suicidal note. In 2018 the offender met his now partner, Chun. In 2019 the offender had made several steps to get into detoxification. He entered Herbert Street Detox at St Leonards and was placed on a methadone program and was subsequently admitted into the Sydney Clinic Residential Rehabilitation Program on 11 June 2019. Whilst there, he was requested by police to report to Waverley Police Station where he was arrested on the Form 1 matters, and granted bail. The offender had complied with bail conditions but was placed in custody following his arrest on the index offences in August 2019. Whilst in custody on remand for these offences, he was seriously assaulted twice, which has caused him anxiety for the fear of further assaults. Mrs Prouting-Smith opined that since his release on bail in January 2020, the offender has been doing really well. She opined that he is truly committed to his rehabilitation and that she and her husband are committed to supporting him into the future. (ii) Exhibit 2 – Letter from the offender's father, Phillip John Edward Prouting-Smith 1. The offender's father has a motorcycle business and he is happy to employ the offender in that business. He confirmed that the offender had been subject to two physical assaults whilst in custody on remand in 2019 and expressed concern for his mental and physical health if he is returned to custody. The offender's rehabilitation had progressed well and was, in his father's opinion, a positive outcome. He expressed a hope that the offender would take over ownership of his business in the near future. (iii) Exhibit 3 – Letter from Jun "Chun" Eva (the offender's partner) 1. He recorded the history of their relationship since 2017 and the difficulties the offender had experienced including the motor vehicle accident in 2005, depression, addiction to illicit drugs and coming out as an homosexual. In 2018, the offender had attempted to commit suicide and his initial attempts at rehabilitation had been unsuccessful, leading to another suicide attempt in April 2019. He has since successfully rehabilitated following residential programs at the Sydney Clinic and WHOS. He also attends NA meetings and gets dosed regularly for his methadone program. Mr Eva noted that following the WHOS rehabilitation he was clean of methadone, and the offender had his continuing love and support. (iv) Exhibit 4 – Testimonial of Mr Derek Dunworth 1. Mr Dunworth is a long-term member of Narcotics Anonymous. He accompanied the offender to numerous NA meetings and in 2019 became his sponsor. He opined that the offender was progressing well in treatment and maintained regular contact with him. (v) Exhibit 5 – Letter from WHOS dated 24 July 2020 1. The letter from WHOS set out in detail the offender's participation in the residential rehabilitation program. (vi) Exhibit 6 (6.1 to 6.4) – Four documents 1. Exhibit 6.1 was an updated letter from WHOS noting that the offender had completed the program and developed an appropriate treatment exit plan which involved a relapse prevention plan, continuing to engage in 12-step support groups, further counselling, maintaining healthy and positive relationships with family, and a return to work. 2. Exhibit 6.2 was a further letter from the offender's father dated 25 September 2020 confirming the positive changes brought about by the offender's rehabilitation. 3. Exhibit 6.3 was a letter from the offender dated 24 September 2020 setting out the difficulties that he was facing with depression, his sexuality and illicit drugs in the lead up to the index offending, including attempts to end his life. The offences were unplanned and were not designed for him to profit. He described gaol as a "poor experience" and stated that following an assault whilst he was in protection, he had a "nervous breakdown", and could not cope. The offender stated that he was very ashamed of himself for committing the offences and that he understood the anger and hurt of the business owners and employees of those businesses who were affected. He planned to continue his 12-step recovery, to do an AOD course and to continue to work in his father's business and eventually take it over. 4. Exhibit 6.4 was a self-referral request completed by the offender on 25 October 2019, together with a similar request dated 8 December 2019, in which the offender refers to difficulties he was suffering from his methadone program. (vii) Exhibit 7 – Chronology prepared by Counsel for the offender 1. The chronology helpfully set out in chronological order the offender's life history, criminal history and recent history relating to his rehabilitation. The Crown submissions 1. The Crown relied on a written outline of submissions. The following features were relevant to the objective seriousness of the offending. Sequence 1 – The medical centre offence * The offender rummaged through the contents of a number of drawers and threw paperwork and medical documents onto the floor. He left the refrigerator door open and poured cleaning liquid all over the reception desk. The Crown submitted this was a gratuitous disturbance of the office and would have caused needless inconvenience to the owners. * The amount of cash stolen was small and the medical items stolen were of unknown value. * The accused made only limited attempts to conceal his identity, which included using his sleeve to cover his hand unsuccessfully, and later finding gloves to wear. He was seen by a witness outside the premises. Sequence 3 – The café offence * The value of the property stolen was substantial, including an ipad, a tablet, an iphone and an eftpos card. * The offender also caused a mess inside the premises, including leaving half eaten food on the floor and discarded open cans of soft drink. The offender again poured cleaner (bleach) onto the surfaces before leaving. * There were again minimal attempts to conceal his identity as the offender left his DNA on a number of items and again tried to cover his hands with his jumper. The Form 1 offences * The accused wore a red mask which would have been frightening for anyone who had seen him, including the employee who caught him in the early hours of the morning. * The items stolen from the work site were of some value. * The offender again was not particularly sophisticated in avoiding detection, leaving his mask and gloves behind. 1. The Crown submitted that the objective seriousness of the offending fell below the mid-range of seriousness for the offences. 2. The Crown submitted that an aggravating factor, pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") was that the offences were committed whilst the offender was on parole. In respect of the offender's criminal antecedents, the Crown submitted that his previous convictions and imprisonment disentitled him to any leniency in this matter. 3. The Crown acknowledged that the offender had entered early pleas of guilty and was entitled to a 25% discount on sentence. 4. The offender had spent 149 days in custody between 27 August 2019 and 22 January 2020. That entire period was referrable to his balance of parole, however, it was a matter for the court to determine the appropriate date for which to backdate any custodial sentence. The Crown submitted that the present offending represented separate and distinct criminality from that of the breach of parole offences, and that the court should not backdate the present sentence to wholly encompass time spent on remand, that is also referrable to the balance of parole. The Crown submitted that pursuant to s 47(5) of the CSPA, and pursuant to White v R [2016] NSWCCA 190, the court is only permitted to postdate the commencement of an offence if it is to be served consecutively with another custodial sentence, and the date must not be later than the earliest date on which the offender will become eligible to release on parole. As the offender's non-parole period has now expired and he is presently on bail, the court should therefore not postdate the sentence to a date later than the date on which sentence is delivered. 5. The Crown set out the purposes of sentencing in s 3A of the CSPA and emphasised the need for general deterrence, specific deterrence and rehabilitation. 6. The Crown submitted that the threshold in s 5 of the CSPA is crossed and that only a penalty of imprisonment was appropriate, given the need for specific and general deterrence and the need for the offender to be adequately punished. 7. In his oral submissions, the Crown rehearsed the chronological history of the offending and the offender's release on parole. The court had a general discretion to backdate the sentence, having regard to the fact of 149 days served in custody. The offender's submissions 1. Learned counsel for the offender also relied on a detailed written outline of submissions. The offender was 31 years at the time of the offending and is now 32 years. He is entitled to a 25% utilitarian discount for his early plea of guilty and in addition to almost 5 months in custody, he had spent time in quasi‑custody for four weeks at the Sydney Clinic, and approximately 3.5 months during his admission to the WHOS program, a total of 18.5 weeks in residential rehabilitation. A discretionary range of 50 to 75% has been allowed for such time in residential rehabilitation, relying on Small v R [2018] NSWCCA 290 at [38]. This time should be taken into account in backdating the starting date of the sentence. 2. It was submitted that the offender had been compliant with all aspects of care and had developed an appropriate treatment plan. He had been on bail since 16 August 2020 without adverse incident, and his sponsor had stated he was very committed to his recovery. 3. It was submitted that the court has a discretion to commence the sentence so as to backdate it, relying inter alia on R v Holloway [2016] NSWCCA 166 at [32]. The discretion is a broad one. Here, the offender was released on parole on 2 October 2017. The substantive index offences were committed over 19.5 months later. The Form 1 matters were committed 17.5 months following his release on parole. 4. It was submitted that the offender had made disclosures relating to his drug use to his supervising officers while on parole. With the benefit of hindsight, that may be viewed as a cry for help, given that the disclosure was made prior to his offending. Following two suicide attempts, he voluntarily entered rehabilitation, first at the Herbert Street Clinic, then at the Sydney Clinic. It was submitted the court should take into account the time the offender spent in custody, together with time spent out of custody on very strict bail conditions, including curfews. 5. The offender noted that there is a guideline judgment for offences pursuant to s 112(1) of the Crimes Act 1900, namely, R v Ponfield (1999) 48 NSWLR 327. Relevant here was the fact that the index offences were committed whilst the offender was on parole and bail for the Form 1 offences. He had a record of prior robbery offences and there was vandalism involved in the offending. It was submitted that offences under s 112(1) are generally disposed of in the Local Court and the value of the property in respect of each offence was relatively low. Both offences were committed at a time when no person was likely to be present and neither offence demonstrated any level of complex planning or sophistication. 6. In respect of the medical centre offence, there was some damage to the premises, as the offender broke the lock to gain entry. He was not wearing gloves and left his fingerprints in the premises. When he did find gloves, he broke part of a glove and again left prints. It was submitted that this was indicative of both general amateurishness and lack of planning. 7. He also left a fridge open and poured cleaning liquid onto the reception desk. It was unclear whether this was an attempt to destroy evidence of his presence or whether it was motivated by something else. 8. The café offence was committed only a few minutes later. He used a crow bar to gain entry and left his DNA. Again, the offence was not well planned, and the offender was ill prepared. The offence was opportunistic and reasonably spontaneous. 9. The offender acknowledged that an aggravating factor pursuant to s 21A(2) of the CSPA was that the offender was on parole. Mitigating factors pursuant to s 21A(3) were: "(b) The offences were unplanned (g) Reduced likelihood of reoffending (h) Good prospects of rehabilitation (i) Remorse (j) Mental ill health (k) Guilty plea" 1. The offender conceded that the s 5 threshold had been crossed, however, it was submitted that an appropriate sentence could in practical terms not see the offender go back into full time custody. Relevant considerations included backdating the commencement date, in light of periods of quasi-custodial settings, time already served, and other factors, as well as the existence of special circumstances, including his mental health issues and the significant progress he has made in terms of his rehabilitation. 2. Whilst there was more than one victim, it was submitted that the conduct of the offender could accurately be described as one clear course of conduct. Whether the sentences should be concurrent was determined by whether the sentence for one offence could encompass the criminality of both offences, relying on R v Jarrold [2010] NSWCCA 69 at [56]. Here the principle of totality meant that the sentence for one offence may encompass the criminality of all offences. It was noted that the offences on the Form 1 should be taken into account, whether the sentence is concurrent or cumulative. 3. Counsel submitted that there were significant subjective matters to be taken into account as follows: * "The offender had suffered serious injury in two significant incidents in his early life, first a near drowning as an infant, and secondly, severe head injuries in a motor vehicle accident in 2005, before he was 18 years of age. * He had no criminal history before that incident. * The offender's abuse of drugs and alcohol became progressively worse over time. * By the time he was in his mid-twenties, the offender had developed a drug habit that he was unable to support. * He was also struggling with his own sexual identity. * Whilst serving a sentence for robbery offences, the offender developed an addiction to heroin. * Notwithstanding his battle with his addiction to heroin, the offender was heading in the direction of defeating his drug addiction. * Following his completion of the WHOS program, he was now totally medication free. * He was now completely off methadone which demonstrated his determination to live a drug-free life. * He had the support of his immediate family as well as his partner since 2017. * He has strong pro-social support. * The offender had been assaulted in custody on more than one occasion and was on protection during his previous period of incarceration." 1. In respect to special circumstances, it was submitted that the offender had a history of mental health issues and a brain injury. He had a need for continued rehabilitation for his substance abuse, mental health, gambling and negative peer relationships. There was a corresponding need for lengthy supervision. It was submitted that the offender has good prospects of rehabilitation, particularly in light of his successful completion of the WHOS residential rehabilitation program. It was submitted that a finding of special circumstances should be made, permitting an adjustment downwards of the non-parole period. 2. Counsel also relied on Judicial Commission sentencing statistics, noting they may be regarded as a "blunt tool". 3. In her oral submissions, Counsel for the offender focussed on the significant changes that he had made to his life and emphasised the support that the offender now had from his parents and partner. It was submitted that he was now on a path to positive rehabilitation. It was submitted that his successful rehabilitation had more significance in the sentencing exercise in accordance with R v Osenkowski (1982) 30 SASR 212. 4. Whilst acknowledging that the s 5 threshold had been crossed, it was submitted that any sentence to be imposed should allow the offender to remain at liberty by imposition of a sentence for which the non-parole period has already expired, or by way of an Intensive Correction Order, taking into account the time served. 5. In reply, the Crown conceded that an extended period of supervision would, in all of the circumstances, be appropriate. Determination 1. Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community." 1. In assessing the objective seriousness of the offending in Sequence 1, I take into account that the offender broke into the medical centre, no doubt looking for drugs and money. It was unsophisticated offending, however, it involved a gratuitous disturbance of the premises, including disturbance of paperwork and medical documents and pouring cleaning liquid over the reception desk. I accept the Crown's submission that the offending was below mid-range for an offence pursuant to s 112(1)(a) of the Crimes Act, however, it still constituted serious offending, in the middle of the low-range of objective seriousness for such an offence. 2. In assessing the objective seriousness of the offending in Sequence 3, the café offence, I take into account that the value of the property stolen was substantial, including an ipad, a tablet, an iphone and an eftpos card. Again, the offender caused a mess inside the premises, however, it was unsophisticated offending involving little planning in which the offender made minimal attempts to conceal his identity. Again, I accept the Crown's submission that the objective seriousness of the offending was below the mid-range of seriousness for an offence pursuant to s 112(1)(a) of the Crimes Act, however, I regard this offending as being towards the upper end of the low-range. It constituted serious offending. 3. I also accept the Crown's submission that the objective seriousness of the offending on the Form 1 matters, Sequence 9, an offence pursuant to s 113(1) of the Crimes Act, Sequence 7, an offence pursuant to s 117(1)(a) of the Crimes Act, and Sequence 10, an offence pursuant to s 114(1)(d) of the Crimes Act, all fell below the mid-range of objective seriousness for such offences. There must be some accumulation on sentence, having regard to the nature of the Form 1 offences. 4. I find that it was an aggravating factor, in respect of the index offences, that the offences in Sequences 1 and 3 were committed whilst the offender was on parole, pursuant to s 21A(2)(j) of the CSPA. 5. I accept that the following mitigating factors should be taken into account pursuant to s 21A(3): (b) The offences were unplanned. (g) Given his rehabilitation, the offender has a reduced likelihood of reoffending. (h) I find that the offender has good prospects of rehabilitation. (i) The offender has expressed remorse for his offending. (j) The offender had a history of mental health issues. (k) The offender has entered early pleas of guilty which entitle him to a 25% utilitarian discount on sentence. 1. I have had regard to the maximum penalties proscribed in respect of both index offences of 14 years imprisonment. The maximum penalty is a guidepost in the sentencing process. 2. I find that there are significant subjective factors to be taken into account on sentence in respect of this offender. First, he had suffered two significant injuries as a child, the first involving a near drowning as an infant and the second involved a serious head injury suffered in a motor vehicle accident in 2005, before turning 18 years of age. He suffered frontal lobe damage and struggled thereafter with his education and employment. During his 20's, the offender developed a spiralling use of drugs and alcohol, developing first an addiction to methamphetamines and subsequently, whilst in custody, an addiction to heroin. 3. The offender also had a number of mental health issues, combined with a struggle to find his own sexual identity. 4. The offender has made significant progress with his rehabilitation, completing a residential program at the Sydney Clinic and recently completing the WHOS program. Importantly, he has the significant support of his immediate family, as well as his partner of three years, and his sponsor. He has acknowledged his guilt and expressed remorse for his offending and determination to apply himself to his ongoing rehabilitation. 5. In the guideline judgment of R v Ponfield, supra, the Court of Criminal Appeal listed a number of factors which reflected an enhanced seriousness of offending contrary to s 112(1) of the Crimes Act 1900, including whether the offence was committed while the offender was on conditional liberty and whether he had a prior record, particularly for like offences. 6. I have had regard to the guideline judgment in R v Ponfield, supra, as there are aggravating factors here, given that the offences were committed whilst the offender was on parole and bail, and that he had prior convictions for robbery type offences. His prior criminal history does not entitle him to leniency in the sentencing process. 7. General deterrence is important in the sentencing process for these type of offences. A clear message must be sent to the community that Parliament has proscribed lengthy maximum sentences for such offences and that the courts will impose condign punishment in appropriate cases. However, the offender's mental health issues mean that general deterrence is a diminished factor in the sentencing process here. Specific deterrence is, however, important here, in that the offender, who has already served a lengthy prison term for similar offences, must understand that if he reoffends he will be subject to increasingly lengthy terms of imprisonment for such criminal conduct. 8. There are significant subjective factors to be taken into account in imposing the sentence here. The offender has made significant progress in his rehabilitation. In determining an appropriate sentence, I take into account that the offender completed half of his period on parole without reoffending, and had made frank disclosures to his supervising officer in respect of his relapse into drug use. Whilst the time spent in custody of 149 days represented time on parole, which has now expired, the court retains a broad discretion to backdate any sentence. I also take into account his time spend in quasi‑custody. Those periods may also be taken into account in determining whether any sentence should be served by way of an Intensive Correction Order. 9. Notwithstanding the seriousness of the offending and the breaches of the offender's parole for similar offences, any sentence to be imposed should not be crushing and should maximise the offender's prospects of rehabilitation – see R v Gray [2018] NSWCCA 241 per Hamill J, adopting R v Osenkowski, supra. I accept the opinion of Ms Slattery-McDonald that the offender is a medium-low risk of reoffending, particularly if he continues to apply himself to his rehabilitation. 10. I am satisfied that the threshold in s 5 of the CSPA has been crossed, and no penalty other than imprisonment is appropriate in all of the circumstances. I intend to sentence the offender by way of an aggregate sentence and in doing so, for the sake of transparency, I am required to provide indicative sentences for each of the index offences. The indicative sentences are as follows: Sequence 1 – offence pursuant to s 112(1)(a) (medical centre offence) – 18 months imprisonment Sequence 3 – offence pursuant to s 112(1)(a) (café offence) – 2 years and 3 months imprisonment 1. Here, the offending involved one course of criminal conduct and therefore there should be a high degree of concurrency, applying principles of totality as set out in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 1. Here, the criminality for each offence is largely reflected in the criminality for the other offence. Having regard to all of the circumstances, I intend to impose an aggregate sentence of imprisonment of 2 years and 6 months for the index offending. 2. Having regard to the need for a lengthy period of supervision and the significant progress the offender has made in his own rehabilitation, I have had regard to the Court of Criminal Appeal's decision in R v Pullen [2018] NSWCCA 264 in respect of the determination to be made in respect of an intensive correction order. Justice Harrison said at [84]: "In determining whether an ICO should be imposed, s 66(1) makes 'community safety' the paramount consideration. The concept of 'community safety' as it is used in the Act is broad. As s 66(2) makes plain, community safety is not achieved simply by incarcerating someone. It recognises that in many cases, incarceration may have the opposite effect. It requires the Court to consider whether an ICO or a full-time custodial sentence is more likely to address the offender's risk of re-offending. The concept of community safety as it is used in the Act is therefore inextricably linked with considerations of rehabilitation. It is of course best achieved by positive behavioural change and the amendments recognise and give effect to the fact that, in most cases, this is more likely to occur with supervision and access to treatment programs in the community." 1. The Court has since held that the paramount consideration in considering whether to make an ICO is an assessment of "whether such an order, or full‑time detention, is more likely to address the offender's risk of re‑offending" – see R v Fangaloka [2019] NSWCCA 173 at [63]. As explained in Karout v R [2019] NSWCCA 253 at [60], this is an aspect of the paramount consideration of community safety which must be considered, together with the purposes of sentencing set out in s 3A of the CSPA. I have had regard to the Sentencing Assessment Report (Ex B) as required by s 69(1) of the CSPA, and have noted that the offender has been actively engaged in his supervision. Given the significant progress the offender has made with his rehabilitation, a community based order is more likely to address this offender's risk of re-offending. 2. Here, the sentence should be served by way of an intensive correction order. Notwithstanding the offender's criminal history and the fact that the offences occurred whilst he was on parole, the offending arose from his relapse into illicit drug abuse and the impact of his mental health issues. Having regard to the matters set out above, and in particular, the offender's time in custody, time spent in quasi-custody, the progress made with his rehabilitation, and his need for ongoing rehabilitation for his drug and alcohol addictions, and mental health issues, I find that it is appropriate that the sentence be served by way of an intensive correction order with conditions. I therefore intend to impose an intensive correction order for a period of 2 years and 6 months from today. Orders 1. I make the following orders: 1. You are convicted of the following offences: 1. Sequence 1 – offence pursuant to s 112(1)(a) of the Crimes Act 1900. 2. Sequence 3 – offence pursuant to s 112(1)(a) of the Crimes Act 1900. 1. I sentence you to an aggregate sentence of 2 years and 6 months imprisonment. 2. Pursuant to s 7(1) of the CSPA, that sentence is to be served by way of an Intensive Correction Order, subject to the following conditions: 1. You must not commit any offence. 2. You must submit to supervision of Community Corrections. 3. You must continue drug and alcohol rehabilitation as directed. 4. You must remain abstinent from illicit drugs for the duration of your supervision. 5. You must report to Community Corrections at St Leonards as soon as possible, within 7 days. 6. This order is to terminate on 15 April 2023. 1. If you fail to comply with this order, sanctions may be imposed by the Commission of Corrective Services, or the State Parole Authority and may include a formal warning, imposing more stringent conditions or revocation of this order. 2. If the order is revoked, you may be required to spend some, or all, of your sentence in full-time custody. ********** 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: 27 October 2020