District Court New South Wales Medium Neutral Citation: R v Baydoun [2020] NSWDC 669 Hearing dates: 23 and 30 October; 4 November 2020 Decision date: 04 November 2020 Jurisdiction: Criminal Before: Hatzistergos DCJ Decision: (1) The Offender is convicted. (2) He is to serve a non-parole period of 2 years and 3 months imprisonment, commencing 21 July 2020 and expiring on 20 October 2022. (3) Thereafter the Offender is to serve an additional term of 1 year and 3 months imprisonment commencing 21 October 2022 and expiring on 20 January 2024 during which he shall be eligible to be released on parole. (4) The head term is one of 3 years and 6 months and the earliest release date is 20 October 2022. (5) The Offender is to be referred to the Drug Court to assess his eligibility to be placed in the Compulsory Drug Treatment Program. Catchwords: CRIME – By deception dishonestly obtain a financial advantage – 30 different victims over period of around 7 months SENTENCING – Degree of planning, sophistication and organisation – Somewhat reduced moral culpability – At about the mid-range of objective seriousness – Plea of guilty – 25% discount – Remorse – Offending committed while Offender on conditional liberty – No issue of parity – History of substance and gambling abuse – Guarded but hopeful prospects of rehabilitation – Medium risk of re-offending – Imposition of term of imprisonment – Referral to Compulsory Drug Treatment Program Legislation Cited: Crimes Act 1900 (NSW), s 192E(1)(b) Crimes (Administration of Sentences) Act 1999 (NSW), Part 4A Crimes (Administration of Sentences) Regulation 2014 (NSW), Part 12 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A Drug Courts Act 1998 (NSW), s 18B Cases Cited: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102. R v Fiordelli [2020] NSWDC 154 R v Thomson and Houlton (2000) 49 NSWLR 383 Category: Sentence Parties: Regina (Crown) Shady Baydoun (Offender) Representation: Counsel: Mr G. James QC (Offender) Solicitors: Director of Public Prosecutions (Crown) Millennium Lawyers (Offender) File Number(s): 2018/160237 Judgment 1. On 23 October 2020 Shady Baydoun (the Offender) was arraigned before me and pleaded guilty to one offence that he did between 6 October 2017 and 8 May 2018, at Redfern and other places in the State of New South Wales, by deception dishonestly obtain a financial advantage in the sum of $367,035.91 contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 10 years imprisonment with no standard non-parole period. Following the hearing of sentencing submissions the matter was listed for sentence on 30 October 2020 at 2pm. 2. Earlier that day I informed the parties through my Associate that there were inconsistencies in the indictment and the agreed facts in relation to quantum. [1] After again drawing this to the parties' attention in open court I adjourned the matter to allow the parties to make enquiries as to the actual quantum of the offending. On 2 November 2020, the parties arranged to have forwarded to my Associate an Updated Agreed Facts, confirming that the quantum on the indictment ($367,035.91) was correct but revised some of the other figures particularised in those Agreed Facts. [2] After further correspondence through my Associate clarifying one further entry, the parties sent through a final and third Updated Agreed Facts. I proceed on the basis of the Third Updated Agreed Facts being now correct. [3] Facts 1. The offence involved a rolled up charge of 30 separate victims. The details in respect of each victim were as follows:- 1. Victim 1: On 6 October 2017, the Offender used the victim's phone number to pass security checks with the Commonwealth Bank and as a result a withdrawal of $500 was made from the victim's account. 2. Victim 2: On 11 October 2017, the Offender used the victim's phone number to pass security checks with the Commonwealth Bank and as a result a withdrawal of $500 was made from the victim's account. 3. Victim 3: On 28 October 2017, the Offender used the victim's phone number to pass security checks with the Commonwealth Bank and a result a withdrawal of $147.90 was made from the victim's account. 4. Victim 4: On 31 October 2017, the Offender used the victim's phone number to pass security checks which enabled the victim's credit card to be activated. The credit card was used to defraud the victim of $11,150.49 which was spent at Coles, Apple, Harvey Norman and Louis Vuitton at various locations. 5. Victim 5: On 22 November 2017, the Offender used the victim's phone number to pass security checks which enabled him to access the victim's online banking account and as a result three fraudulent transactions were made totalling $15,683. 6. Victim 6: On 23 November 2017, Police obtained a voice recording of the Offender committing the offence. The Offender used the victim's phone number to pass security checks which enabled him to access the victim's online banking account. As a result two cardless cash withdrawals which totalled $1,200 and five transactions to an online betting account in the amount of $55,009.34 were made. 7. Victim 7: On 13 December 2017, the Offender used the victim's phone number to pass security checks to access the victim's online banking account, and as a result a bank cheque for $80,737.00 was made, a transfer of $2,000 to a crypto-currency website was made, and $11,910.13 was transferred to an online betting account. This totalled $94,647.13. 8. Victim 8: On 21 December 2017, the Offender used the victim's phone to pass security checks enabling him to activate the victim's credit card and as a result a withdrawal of $220 was made from the victim's account. 9. Victim 9: On 9 January 2018, the Offender used the victim's phone number to pass security checks enabling him to access the victim's online banking account and as a result a total of $18,000.00 was transferred to a crypto-currency website BTC Market via a BPay company. 10. Victim 10: On 9 January 2018, the Offender used the victim's phone number to pass security checks enabling him to access the victim's online banking account and as a result a total of $350 was withdrawn from the victim's account. 11. Victim 11: On 10 January 2018, the Offender used the victim's phone number to pass security checks enabling him to access the victim's online banking account and activate the victim's credit card. As a result, the card was used to withdraw $500 at Rhodes Shopping Centre and make a purchase to the value of $30 at Priceline Pharmacy in Rhodes, being a total of $530. 12. Victim 12: On 11 January 2018, Police obtained a voice recording of the Offender committing the offence. The Offender used the victim's phone number to pass security checks enabling him to access the victim's online banking account. The victim's card was activated and as a result, the card was used to withdraw $600 at Rhodes Shopping Centre. 13. Victim 13: On 23 January 2018, the Offender used the victim's phone number to pass security checks enabling him to access the victim's online banking account. A credit card was activated which was used to conduct a fraudulent transaction at Coles Rhodes for the amount of $80. The card was stopped shortly thereafter and further attempts to use the card were declined. 14. Victim 14: On 26 January 2018, the Offender used the victim's phone number to pass security checks enabling him to access the victim's online banking account and as a result $5.00 was transferred to betting website Crown Bet. 15. Victim 15: On 30 January 2018, the Offender was able to pass various security checks in use by telecommunication and financial businesses, such as call backs, SMS codes or CID verification. As a result, a credit card intercepted in the mail was able to be activated and a fraudulent $2,000 ATM withdrawal was conducted at Rhodes. 16. Victim 16: On 1 February 2018, the Offender was able to pass various security checks in use by telecommunication and financial businesses, such as call backs, SMS codes or CID verification. As a result, several fraudulent transactions were conducted which included two separate online transactions totalling $6,500. 17. Victim 17: On 3 February 2018, the Offender with access to the victim's phone number was able to pass various security checks in use by telecommunication and financial businesses, such as call backs, SMS codes or CID verification. As a result, several fraudulent transactions were conducted totalling $30. 18. Victim 18: On 12 February 2018, the Offender transferred the victim's mobile number to a new SIM card used in a mobile phone handset. Police obtained a voice recording of the Offender committing this offence. The victim's credit card was activated and was used to make a fraudulent transaction of $42.75 at Coles, Sydney. 1. On 22 May 2018, Detectives attached to Strike Force Ambleside executed three simultaneous search warrants at addresses in Kingsford, Rhodes and Waterloo. Present at the address in Kingsford was the Offender, his girlfriend and young daughter. The co-offenders, being Mohammed Metleg and Colin O'Riley, were also located at their respective addresses. The Offender was arrested for fraud and conveyed to Maroubra Police station and subsequently participated in an electronic record of interview where the allegations of the offences were put to him, to which he denied. He was subsequently charged. Following the arrest and charge of the Offender on 22 May 2018, an evidence review was conducted and a number of additional frauds were identified, being:- 1. Victim 19: On 24 November 2017, the Offender with access to the victim's phone accessed the victim's internet banking and completed 27 transactions to "Neds.com" totalling $15,929. Further transactions were made at Event Cinema Bondi Junction, Woolworths and Coles on a credit card activated bringing the combined total to $16,347.25. 2. Victim 20: On 19 December 2017, the Offender accessed the victim's phone and was able to pass various security checks and gained access to the victim's online banking account. A number of transactions to "Neds.com" betting company were made totalling $18,000. 3. Victim 21: On 10 January 2018, the Offender used the victim's number to pass various security checks and gained access to the victim's online banking account. On 13 January 2018, fraudulent transactions were made against the victim's Commonwealth Bank of Australia account, with further transactions occurring on 16 and 18 January 2018. This came to a total of $1,938.67. 4. Victim 22: On 13 February 2018, the Offender used the victim's number to gain access to the victim's online banking account. With access to the victim's phone number, the Offender was able to pass various security checks in use by telecommunication and financial businesses, such as call backs, SMS codes or CID verification. Two transactions were made, being a transfer of $30,000 from the victim's super account to his everyday account and a BPay payment to 'Bill Buddy" for $8,000. A total of $38,000 was transferred from the victim's bank account. 5. Victim 23: On 15 February 2018, the Offender with access to the victim's phone number was able to pass various security checks. A credit card belonging to the victim was activated and used in a total of $300 of fraudulent transactions. 6. Victim 24: On 23 March 2018, the Offender used the victim's number to pass various security checks, enabling access to the victim's online banking. As a result a credit card intercepted in the mail was able to be activated, following activation, fraudulent transactions were conducted at "PP*Powercore" for $95.00, Coles Rhodes for $70.00, KKH Trading Rhodes for $80.00 and Coles Hurstville for $86, being a total of $331. 7. Victim 25: On 23 March 2018, the Offender with access to the victim's phone number, passed security checks and access the victim's online banking account. As a result, a withdrawal for $200 was made from the victim's account. 8. Victim 26: On 23 March 2018, the Offender used a mobile phone number to contact the victim on his mobile number, purporting to be "Michael" from St George Bank, calling regarding a new debit card to be sent out. The Offender obtained the victim's PIN number, after which he contacted St George Bank and activated the debit card. After this, a successful transaction was made using the card at a St George ATM within the Rhodes Waterside Shopping Centre. The card was subsequently blocked due to suspected fraudulent transactions. Following this, the Offender contacted St George Bank and successfully got the card reactivated and changed the victim's passwords. A number of successful transactions were subsequently made within the Rhodes Waterside Shopping Centre. Later on the same day, the Offender attempted to transfer the victim's mobile phone number to a new SIM card in his possession, however was unsuccessful. Subsequently, after increasing transaction limits, a successful transaction of $7,900 was completed. A total of $13,020.25 was fraudulently obtained from the victim's account. 9. Victim 27: On 23 April 2018, the Offender used a mobile phone to contact Diamond Imports Pty Ltd and enquired about the purchase of a diamond. Following that call, with access to the victim's phone number, the Offender was able to pass various security checks to access the victim's online bank account. The Offender completed four transactions using the BPay facility to transfer a total of $36,008.50 to Diamond Imports from the victim's Pensioner Security account. 10. Victim 28: On 30 April 2018, the Offender, with access to the victim's phone number was able to pass various security checks in use by telecommunication and financial businesses, such as call backs, SMS codes or CID verification. On the same day, two payments were made from the victim's Commonwealth Bank of Australia accounts via the BPay facility totalling $14,900. A further transaction was made to TAB for the amount of $1,500. This totalled $16,400. 11. Victim 29: On 27 April 2018, the Offender, with access to the victim's phone number was able to pass various security checks in use by telecommunication and financial businesses, such as call backs, SMS codes or CID verification. On the same day, six successful transactions were made against the National Australia Bank account of the victim totalling $10,882 at Rhodes, North Ryde and at a hair salon in Bankstown. 12. Victim 30: On 8 May 2018, the Offender contacted the victim stating that a note with his phone number had been left on his car after an accident. The victim informed the Offender that he was not involved in the accident and did not know why his details had been left. Following the call, the Offender transferred the victim's mobile phone number to a new SIM card. With access to the victim's phone, the Offender was able to pass various security checks, contacted ME Bank and successfully activated a previously intercepted card in the name of the victim. Following this, thirteen transactions were completed using this card across Sydney CBD, totalling $9,612.63. 1. In all, a total of $367,035.91 was defrauded. Objective factors 1. The Crown submitted that the offence was a serious example of fraud offences, involving 30 victims over a period of 7 months and 2 days with a quantum that was substantial. It submitted that the Offender took advantage of vulnerabilities in the Australian banking system to perpetuate the offence, and there was a significant degree of sophistication, planning and organisation involved in the offending such that it fell within the conduct described in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the 1999 Act). 2. The Defence conceded the application of the aggravating factor. It further acknowledged the Crown submission as to the amount of money involved being significant and the fact that the offending occurred over a period of around 7 months. The Defence submitted that the Court could find on the balance of probabilities that the motive for the offending was to fund his drug and gambling addictions. It was further argued that this is to be distinguished in circumstances in which criminal conduct is engaged to fund a lavish lifestyle. I accept that this is so. 3. The Defence further submitted that in light of the contents of the psychological report of Ann Marie De Santa Brigida dated 23 April 2019 and the psychiatric report of Dr Tanveer Ahmed dated 21 October 2020 that the Offender suffered from the following mental health conditions:- 1. Polysubstance dependence; 2. Gambling dependence; and 3. Bipolar 2 disorder with strong overlaps with an underlying personality disorder, namely borderline personality disorder. 1. This was said to be relevant to the Offender's moral culpability in that there was no doubt that the polysubstance and gambling dependence was causally related to the commission of the offence. Reliance in this regard was placed particularly on the finding of Dr Ahmed. 2. Dr Ahmed noted that the Offender gave a history of often feeling paranoid that others are out to get him and that it was very likely that he self-medicated with drugs partly to minimise the sense of distress he felt. The history that led to that situation is discussed more fully below (see [27]). 3. Dr Ahmed further stated there was a direct overlap between the crimes and the disorder, and that the Offender's need for money was partly to fund his drug and gambling habits. 4. Dr Ahmed also noted that he was intoxicated at the time of the offending which worsened his judgment and pre-existing poor impulse control. Pursuant to s 21A(5AA) of the 1999 Act such intoxication is not to be taken into account as a mitigating factor. 5. The Crown did not otherwise oppose the balance of the Defence submission, accepting that it was appropriate to view the Offender as having somewhat reduced moral culpability in the circumstances. I accept this as so. 6. In assessing the objective seriousness the only statutory aggravating factor raised was s 21A(2)(n) of the 1999 Act. I am satisfied that this has been established and that the level of planning involved was significant. I take it into account together with the other background features of the offending including the amount, the duration and the number of victims. 7. Whilst the Crown submitted that the offending fell in the broad mid-range, or perhaps just below the mid-range, the Defence submitted that the offence fell at "about" the mid-range. Overall I am satisfied that the offence falls about the mid-range of objective seriousness. Subjective factors Plea of guilty 1. The Offender pleaded guilty at the earliest opportunity and it was acknowledged by the Crown that he is entitled to a utilitarian discount of 25%. Remorse 1. The Offender did not give oral evidence before me, however, in the Sentence Assessment Report (dated 7 August 2020) the Offender acknowledged the seriousness of his actions and the impact on the victims and their families. He acknowledged that at the time of his offending he did not think about the impact on the victims due to his drug use and claimed that he was saving money to pay the victims back. Ms De Santa Brigida, psychologist, also noted that the Offender is remorseful for the offending. 2. The Crown accepts that there is evidence before the Court which could lead to a finding of remorse. 3. In the circumstances and on the balance of probabilities I am satisfied that it is appropriate to so find in accordance with s 21A(3)(i) of the 1999 Act. Offending committed whilst the Offender was on conditional liberty 1. At the time of the offending, it was acknowledged that the Offender was subject to bail in respect of offences being participate in criminal group, dishonestly obtain financial advantage by deception and two offences of deal with identity information between 5 June 2017 and 29 May 2018. 2. The Crown submitted that this was an aggravating factor affecting sentence pursuant to s 21A(2)(j) of the 1999 Act. I accept that this is so. Offender's antecedents 1. The Offender has antecedents in the State's adult jurisdiction since 2009 which are as follows:- 1. On 3 September 2009 (aged 20), he was sentenced to 7 years imprisonment with a non-parole period of 4 years for wounding a person with intent to cause grievous bodily harm; 2. On 16 January 2017 (aged 26), the Offender was sentenced in respect of one offence of possess identity information to commit an indictable offence, four offences of dishonestly obtain financial advantage by deception and 2 offences of goods in custody suspected of being stolen. These offences took place between 20 July 2016 and 25 October 2016. Following a severity appeal to the District Court on 29 March 2017, the Offender's sentence was varied to an effective term of 10 months with a 7 month non-parole period. 3. On 29 May 2018 (aged 27), the Offender was sentenced in respect of one offence of participate in a criminal group, one offence of dishonestly obtain financial advantage by deception and two offences of deal with identity information to commit an indictable offence. These offences took place in October 2016. He was sentenced to a period of 6 months imprisonment, suspended pursuant to s 12 of the 1999 Act in respect of the offence of participate in a criminal group, and for the balance of the offences received 4 month suspended sentences. 1. The Crown submitted that the Offender's antecedent disentitled him to leniency. I accept that this is so. Related Offenders 1. Although the Court was provided with material of related offenders who were also the subject of the same investigation as the Offender, both parties accepted that the criminality which related to those offenders is not common with the facts for which the Offender is to be sentenced. [4] No issue was advanced as to any question of parity. Offender's Background 1. According to the report of Ms De Santa Brigida, psychologist, the Offender was born in Australia. His father had no history of alcohol/substance abuse, psychiatric problems or criminality. His mother, who is involved with home duties, has no history of problems. The Offender is one of four children and is the second oldest. Two of his siblings are studying at university and the other is employed in the construction field. The Offender told Ms De Santa Brigida that he had been married to his wife Sarah for 4.5 years and they have a daughter aged 4. According to the Updated Sentence Assessment Report, dated 23 October 2020, the Offender's relationship with his wife has broken down in that they were not together and he was not residing with her. Notwithstanding this, it was submitted on the Offender's behalf that the Offender does have hopes in being able to reconcile. 2. Ms De Santa Brigida recorded that the Offender was educated until Year 11 in high school to which he did not complete. He reported a number of suspensions, including truancy, and stated that he left school at its request. After leaving school he was not in employment until aged 23, following his release from custody. He then started to work in the construction field with his brother and for the past year had been employed with Kassim Zahr at KAS Smash Repairs in a fulltime position. The Defence tendered an unsigned letter from Mr Zahr, in which he speaks positively of the Offender's work and supports him in overcoming his drug addiction and mental health issues. Mr Zahr noted that it important for the Offender to get his life back on track and that he is happy to continue providing a job for him as long as he is willing with work them. Substance Abuse 1. Ms De Santa Brigida recorded that the Offender first experimented with cannabis at age 13 and continued to smoke until age 15, averaging two grams a day. She stated that he started to use cocaine at age 16 until age 18, averaging four grams over the course of the weekend. At age 16 he experimented with MDMA until the age of 18, averaging between 3 to 5 pills over four days a week. Ms De Santa Brigida reported that when the Offender was in custody at aged 24, he experimented with crystal methylamphetamine for the first time and when he was released from custody he began using this substance every day, averaging five "points" per day. He stated that he continued to use "ice" every day until May 2018, when charged with the current offence and then stopped using ice completely. She also recorded that between the ages of 26 and 28 the Offender was using Xanax and Valium and at age 28 stopped completely. She recorded that the Offender began consuming alcohol at age 14 and became a "binge drinker", consuming from the age of 24 200ml to 300ml of alcohol every third day. He reported ceasing this pattern of alcohol consumption in 2019 and that he now consumes alcohol infrequently. 2. Ms De Santa Brigida recorded that from the age of 24 until May 2018, the Offender was gambling on an average of six days per week, spending upwards of $1000 depending on how much money he had at the time. It was also reported that his gambling problem tended to coincide with his abuse of crystal methylamphetamine. 3. Pursuant to DSM-V, Ms De Santa Brigida found that the Offender suffers from a severe Gambling Disorder and appeared to fall within the "biologically-based impulsive" sub-group of problem gamblers which requires intensive intervention consisting of impulse control strategies, cognitive behavioural therapy and on occasion psychopharmacology. On the Beck Depression Inventory II for depression, she found moderate depressive symptoms for the two weeks prior to testing, and on the Beck Anxiety Inventory, she found moderate levels of anxiety for the four week period prior to testing. Mr Chafic Awit, registered psychologist, saw the Offender for 18 times from 2019-2020. In a report dated 22 October 2020, Mr Awit opined a diagnosis of severe personality disorder, generalised anxiety disorder, major depressive disorder, and substance use disorder – severe. 4. The Offender also saw Dr Tanveed Ahmed, Consultant Psychiatrist, on 21 October 2020. Dr Ahmed noted during the interview the Offender appeared adamant that he suffered bipolar disorder and wanted clarification that he would diagnose this at the end of the interview. Dr Ahmed stated that in his opinion, a diagnosis of bipolar disorder was unlikely as he has not ever been treated with a mood stabiliser and has only started on an antipsychotic olanzapine very recently after several sessions with a psychiatrist. In Dr Ahmed's view, the Offender is more likely to have labile mood and is sensitive to feeling threatened. He noted that he was also impulsive. He stated that this has sometimes been called bipolar 2 disorder in the past, which has strong overlaps with an underlying borderline personality disorder. He recorded that the Offender gave a history of being physically beaten as a child. He stated that this has likely sensitised him to feeling threatened, which is why he has engaged in violent behaviour and has had multiple charges of assault. 5. Dr Ahmed opined that it is likely that his feeling of potentially being under threat and associated anxiety has worsened since his friend was shot dead at point blank range at Bankstown shopping centre a few years earlier. He noted that the Offender reported rumination and occasional nightmares about the incident and difficulties staying asleep. Prospects of rehabilitation and likelihood of re-offending 1. The Sentence Assessment Report recorded that the Offender acknowledged that he was willing and able to undertake intervention to address his offending behaviour. It records that the Offender has previously been subject to Community Corrections Supervision on four occasions and his response has been considered positive on most occasions. However, parole was revoked in 2015 due to a failure to address drug and alcohol issues. Otherwise, supervision appears satisfactory. As earlier stated, the Updated Sentencing Assessment Report records that the Offender's relationship with his wife has broken down, and that his response towards the assessment process has deteriorated since August 2020, to the point that it was now considered unsatisfactory. Telephone calls and text messages to his mobile phone remain unanswered or resulted in the Offender terminating the call. 2. Dr Ahmed records that the Offender needs to undertake a treatment plan, as follows:- 1. Take medications as prescribed and continue seeing a psychiatrist. He noted that he was previously on olanzapine and may need the addition of either an antidepressant or a mood stabiliser or a combination of both. He stated that it was likely he will need to be seen approximately monthly. 2. See a psychologist regularly, as it is important to engage in motivational interviewing regarding his anger management and associated drug use and gambling habit. 3. Engage in associated group therapy for both drugs and gambling. He stated that both Gambling Anonymous and associated group therapy for drugs are evidence based treatments to help maintain relapse prevention. He noted that the Offender has not engaged in such therapies but has expressed a motivation to do so. 1. Dr Ahmed noted that the Offender was strongly motivated on this occasion given that he has a young daughter and he wants to set up a life with his partner. He is also supported by his extended family and has shown great remorse for his actions. 2. So far as recidivism is concerned, Dr Ahmed records that if the Offender is able to abide by the treatment plan the risk of him reoffending is low. Ms De Santa Brigida records that the Offender scores in the high range for recidivism. According to the Sentence Assessment Report (dated 7 August 2020), the Offender has been assessed at a medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R). 3. Overall, the Offender does have some support from his family and continued support from his employer. The Offender does appear to be motivated to address his underlying issues. Notwithstanding his previous offending, he did comply with his suspended sentences ordered by the Court without incident and has had no further offending. He has been bail refused in relation to domestic violence matters which are yet to be finalised and I am informed are to be defended. 4. I would take the view that the prospects of rehabilitation are somewhat guarded but not without hope and the risk of reoffending is medium. Sentence 1. In sentencing the Offender I have regard to the maximum penalty of 10 years imprisonment as a guidepost. 2. It was accepted by both parties that pursuant to s 5 of the 1999 Act, no other penalty other than a penalty of imprisonment is appropriate in the circumstances for the purposes of sentencing. 3. In anticipation of the sentence that might follow, it was submitted on behalf of the Offender that a referral to the Compulsory Drug Treatment Centre may make his time in custody more onerous. There is no evidence before the Court that this will be so. Overall this Court has the obligation under s 18B Drug Court Act 1998 (NSW) to make the relevant referral in specified circumstances. Assuming a referral is accepted, how the Offender is managed depends on his performance and action under the legislative regime that underpins it in Part 4A of the Crimes (Administration of Sentences) Act 1999 (NSW) and Part 12 of the Crimes (Administration of Sentences) Regulation 2014 (NSW). On the material before me I am not satisfied that this is a case where it is appropriate to assess the custodial conditions as more onerous on this account. 4. I acknowledge the Defence submission that the COVID-19 pandemic has resulted in increased onerous custodial conditions due to suspension of prison visits, prison lockdowns, impacts on prisoner wellbeing and ill health, prisoner anxiety regarding their own health and for their family, or restrictions on rehabilitation or work opportunities. Reference was made in this regard to the decision of Yehia SC DCJ in R v Fiordelli [2020] NSWDC 154 at [106]—[119]. Noting that though that case dealt with an entirely different matter, her Honour commented on the relevance of COVID-19 to the sentencing exercise. 5. I accept that time in custody will be more challenging in that prisons are more susceptible to the virus and measures have been put in place by Corrective Services to reduce the risk of infection. This includes being deprived of face-to-face contact with his family for an indeterminate period. Whilst how long this situation will last cannot be known, if and when COVID-19 enters the correctional system early parole may be available pursuant to s 276 of the Crimes (Administration of Sentences) Act 1999 (NSW). Notwithstanding this, it is appropriate take into account the current pandemic and its impact on the Offender whilst in custody in a general way. 6. The Offender needs to be punished and made accountable for his actions within the context of a proportionate sentence. Denunciation, general and specific deterrence have a role in sentencing, notwithstanding the somewhat reduced moral culpability (see [9]). In addressing the purposes of sentencing in s 3A of the 1999 Act, it is also necessary to also recognise the harm of the victims. 7. The Crown conceded that there was a clear need for rehabilitation. The Offender is a young man with many underlying issues. He is motivated to address these problems. In view of his underlying health issues and rehabilitation needs I accept that an extended period of parole is within the community interest and I would find special circumstances. 8. The Offender has spent a period of 3 months and 2 days in custody between 22 May 2018 and 23 August 2018. He is entitled to be credited. He was bail refused when he appeared before me on 23 October 2020. In the circumstances, I accept that the sentence should commence from 21 July 2020. 9. Taking into account the plea of guilty, I order as follows: 1. The Offender is convicted. 2. He is to serve a non-parole period of 2 years and 3 months imprisonment, commencing 21 July 2020 and expiring on 20 October 2022. 3. Thereafter the Offender is to serve an additional term of 1 year and 3 months imprisonment commencing 21 October 2022 and expiring on 20 January 2024 during which he shall be eligible to be released on parole. 4. The head term is one of 3 years and 6 months and the earliest release date is 20 October 2022. 5. The Offender is to be referred to the Drug Court to assess his eligibility to be placed in the Compulsory Drug Treatment Program. ********** Endnotes 1. MFI 3 2. MFI 4 3. Exhibit C. 4. Exhibit B 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: 05 November 2020