District Court New South Wales Medium Neutral Citation: R v Dungay [2021] NSWDC 160 Hearing dates: 21 April 2021 Date of orders: 29 April 2021 Decision date: 29 April 2021 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [80 – 81] - The offender is convicted. The Offender is sentenced to a term of imprisonment with a non parole period of 2 ½ years commencing 23 June 2020 and expiring on 22 December 2022, with a balance of term of 2 years expiring on 22 December 2024. Catchwords: CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation CRIME — Complicity — Conspiracy Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: R v Ponfield (1999) 48 NSWLR 327 R v Webster [2005] NSWCCA 110 Veen v The Queen McNaughten (2006) 66 NSWLR 566 Bugmy v The Queen (2013) 249 CLR 571 Munda v WA [2013] HCA 38 Kennedy v the Queen [2010] NSWCCA 260 R v Maher, [2004] NSWCCA 177 De La Rosa (2010) 79 NSWLR 1 Green & Quinn (2011) 244 CLR 462 Afu v R [2017] NSWCCA 246 Lago v R [2015] NSWCCA 296 R v Wei Pan [2005] NSWCCA 114 Dwayhi v R; Bechara v R [2011] NSWCCA 67 England v R; Phanith v R [2009] NSWCCA 274 Texts Cited: Nil Category: Sentence Parties: Regina (Crown) Dungay (Offender) Representation: Oliver Crown Prosecutor for the Director of Public Prosecutions NSW Boyd Counsel for the Offender File Number(s): 2019/00376600 Publication restriction: Unrestricted Judgment Introduction 1. The offender, Christopher Shane Dungay was born on 20 January 1992 so that he is presently 29 years old. The offender appears for sentence on one count of contravening section 112(3) of the Crimes Act, being a charge of specially aggravated breaking and entering and committing a serious indictable offence. The circumstance of special aggravation is that in the course of a joint criminal enterprise one of the co-offenders (not the offender) was armed with a dangerous weapon, specifically a firearm. 2. The maximum sentence for this offence is 25 years imprisonment. I treat that maximum sentence as a legislative guidepost. It is indicative of the seriousness with which this kind of offending is viewed by the legislature. 3. The offence also has a standard non-parole period of 7 years. That is a standard period stated by the legislation for offending that is considered objectively to be in the middle of the range of seriousness. It provides a guidepost in the same way that a maximum sentence provides a guidepost. Even where the offending is not objectively in the middle of the range of seriousness, the standard non parole period is still indicative of the seriousness with which offending of this type is viewed. Just what the appropriate sentence and non parole period may be for the particular case remains to be determined. 4. There is a further matter to be taken into account by way of the form 1 procedure. That matter is one of conspiracy to commit robbery armed with a dangerous weapon. I note that section 97(2) of the Crimes Act provides a maximum sentence of 25 years had that conspiracy been fulfilled, which gives an indication to the seriousness of that matter. 5. In regards to the form 1 procedure it is important that the focus remains on the principle offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community's entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General's Application under section 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ. 6. The date of the offending was 6 October 2019, though as will be seen below the conduct leading to the offending commenced on the evening of 5 October and extended into the early hours of 6 October. The offender was arrested on 12 December 2019 and remained in custody until 12 August 2020 when he was released on bail. That period of custody was eight months and one day. He was then arrested for a breach of bail resulting in being in custody on 27 and 28 February 2021. He was then again released on bail. The breach of the bail was not complying with certain restrictions as to leaving his home on New Year's Eve. The result is the offender has spent 8 months and 3 days in custody and this is to be taken into account. There has been an argument made for the offender that the fact that he has been on certain bail conditions for the balance of that period should also be taken into account and I deal with this below. Facts 1. The facts are set out in a statement of facts which have been agreed and which form part of the Crown bundle which was exhibit A and to which no objection was taken. 2. As noted above there is only one count on the indictment though there is one matter on a form 1 which is to be taken into account on sentence. The facts founding both those matters occurred on the evening of 5 October 2019 through to the early hours of 6 October 2019. 3. At the time of the offending, the offender was in the company of Wayne Dungay, Timothy White and Greg Brown. These three co offenders have been sentenced and their sentences will be considered below on the question of parity. 4. Between 9:07 PM and 10:10 PM the offender was the driver of a vehicle and Wayne Dungay and Timothy White were passengers. They discussed where they would drive to and discussed changing clothes and shoes and also taking back roads to avoid cameras. 5. At 11:01 PM Greg Brown was collected, so the four offenders were now in the vehicle. In the car, having bought petrol at Nambucca heads so as to not be seen in Macksville, they return to near the Macksville railway station. There is discussion as to what roads to take to avoid cameras. White was now driving and was directed by Brown so as to avoid cameras. The best escape routes were discussed. 6. There is discussion as to where best to stop. The offender states that he will drive when they are finished because he knows the road. At 11:30 PM they exit the vehicle. The offender asks Brown "you know the way from here hey Greg '' and the offender then says "bin bags and that in there grab the bin bags and that… Let's bash some motherfucker" and adds "there's a bag there for ya". Brown says "I'll run in with a butter knife". White says "there is a steel pole there with a hammer on it". The offender says "that'll do". The 4 offenders then proceed to the car park of the Macksville Ex - Services club at 12:10AM. 7. At 12:27 AM they walk up the ramp to the main door and break-in by smashing through the bottom of the glass entry doors. They were armed with a long arm firearm, two machetes and a hammer attached to a long pole. They all wore facial disguises and their hands were covered. 8. The offender and Wayne Dungay were armed with machetes. Brown had the rifle. White had a duffel bag and the long handled hammer. White and Brown swapped weapons and white pointed the gun towards the bar. 9. The offenders ran out at 12:30 AM and the offender had a tin from the office area. A cleaner was inside but the cleaner and the offenders were unaware of each other. The offenders had no contact with anybody. 10. Back in the car at about 12:40 AM the offenders discussed that they had not got anything from the club. The tin was empty. 11. The above sets out the matters relating to the one count on the indictment. 12. As to the form one matter it relates to the Nambucca Sport and Recreation club. Having left Macksville they discuss going to the Nambucca club. They determined to see if there are people "down there first", I infer meaning in the club. When they could see the club they observed the lights were on. The car is parked and the offender asks what are they doing and White says they should check the place and asked where the gun is. It was confirmed that the club was closed and the plans were abandoned. 13. On 28 November several search warrants were executed in respect of the investigation of this matter. The offender was not located. He spoke to police on the phone. They asked him to present himself to the Kempsey Police station which he failed to do. A warrant for his arrest was issued on 2 December 2019 and he was arrested pursuant to that warrant on 12 December 2019. Objective seriousness 1. The guideline judgement of R v Ponfield (1999) 48 NSWLR 327 considered the offence of break enter and commit serious indictable offence, i.e s112(1) and when the serious indictable offence concerned was larceny as is the case here. Ponfield is useful also in considering the aggravated offences of s112(2) and as here s112(3). Of the 11 matters set out at paragraphs 48-49 of Ponfield only the first 3 appear here, and one of them is somewhat marginal being professional planning. This is because whilst the offending was clearly planned, the operation is not sophisticated. The next matter was that the offender was on an ICO at the time which I consider to be, or otherwise as good as being, on conditional liberty. In light of McNaughten (2006) 66 NSWLR 566, I do not take the third matter, of criminal history, into account in the assessment of objective seriousness. 2. I note that the objective seriousness assessment is not an arithmetical process. As was said in R v Webster [2005] NSWCCA 110 at [26]: Sentencing in relation to these kinds of offences does not involve simply adding up aggravating features. It involves a qualitative analysis of the particular facts surrounding the relevant offences, which includes the part played by particular aggravating features … 1. I note the maximum sentence of 25 years and of course will refer to that as a guidepost or yardstick. It is a reflection of the seriousness with which this type of offending is viewed by the legislature. 2. A feature of this offending is that whilst it was planned it was markedly unsophisticated. Further not only is larceny at the minimum of the range to qualify by the reference to its maximum sentence as a serious indictable offence, the larceny committed here is a very low level larceny consisting as it does of an empty tin box. That perhaps reflects the planning. Adverse to the offender, it should be recognised that they did travel routes to avoid camera observation, plainly had discussed what they were doing, and had the forethought to wear facial disguises and cover their hands and also made a point of purchasing petrol away from Macksville. 3. Further the offending has two elements constituting matters of aggravation, only one of which is needed to constitute the offence of s112(2), which in turn is an element of an offence under s112(3). These are of being in company and of being armed with an offensive weapon. The fact that all offenders were armed, two of them with machetes and another with a hammer attached to a pole, should be properly recognised. The additional matter of aggravation can be taken into account, as it is not a necessary element of the offence, requiring as it does just one matter of aggravation. 4. The offending was carried out in a way which through either planning or circumstance meant that they did not deal with any other person. Whilst keeping the offending time to a minimum would be the objective of any sensible criminal the detailed facts also show that they were in the building for a very short time only to return with no reward. 5. There does not seem to be any markedly different role being played by the different offenders. Three of them were in the car from the beginning and nothing seems to turn on the later collection of the fourth person. It was the Crown's submission that the roles of the offenders were approximately equal which I consider to be a fair assessment. That said the Crown did argue that the offending was aggravated by all parties being armed and also by the fact that the offender committed the offence whilst on conditional liberty in the form of an intensive corrections order. The latter of these matters is a subjective one and I do not take into account in my assessment of objective seriousness. 6. I take account of the fact the offender personally did not have the rifle, but in all the circumstances this is of limited assistance to him given he was carrying an offensive weapon, a machete. I note the only damage was to the front door, not an insignificant matter. The evidence is silent as to whether it was loaded or capable of firing, and I note King DCJ in sentencing Mr Brown and Wayne Dungay proceeded on the basis it was not shown to be capable of firing and will proceed on that basis also. 7. The fact of all parties being armed and the degree of consideration given to the carrying out of the offending (even if unsophisticated) persuades me, along with all the other matters, to assess this matter as being below the middle of the range of objective seriousness. 8. This means that the offending is below the level of objective seriousness identified by section 54A. 9. I have been provided with the reasons on sentence of the other three offenders. I note that in the case of Mr Brown and Wayne Dungay the objective seriousness assessment concluded it was below the mid-range of offending. This is consistent with the view I have reached. Judge Flannery made the same finding in her reasons on sentence concerning Mr White. 10. Judge King in the matters of Mr Brown and Wayne Dungay found that the form 1 matter which is the same as here fell effectively into the same category, that is below the mid level of objective seriousness. In my view that offending, which as King DCJ helpfully pointed out would have attracted a sentence under section 97(2) of 25 years if the conspiracy had been fulfilled, and so is considered to be an offence of approximate seriousness to the offence on the indictment so far as the legislature is concerned, should be considered to be less objectively serious. This is for the reason that whilst the conspiracy plainly was occurring it was an afterthought and does not involve the same degree of planning as with the earlier offence. 11. As noted above there are aggravating features to this offending. Specifically the use of weapons (beyond what is necessary to constitute the offence) and that the offender was serving a term of imprisonment by way of an intensive corrections order at the time of the offending. I have taken the aspect of the use of weapons into account in assessing the objective seriousness of the matter and do not take it into account again as that would be to double count it. I do however take further into account, the second matter just mentioned in the ultimate determination of the appropriate sentence. Subjective case Guilty Plea 1. The offender did not plead guilty at the first opportunity and is not entitled to a 25% discount. Rather the matter was to proceed as a trial and a guilty plea to the present matter was only entered three weeks before the date the trial was listed to be heard. That means that the offender under section 25D of the CSPA is entitled to a 10% discount on sentence. This is a point of difference from the co offenders who all received a 25% discount. Criminal History 1. The offender has an extensive criminal record. Bearing in mind he was born on 20 January 1992 the first entry in his criminal history is September 2005 so at the age of 13. That offending included break and entering and stealing. 2. In 2008 (so aged 16, for offending in 2007, when 15) he appeared in the District Court and was sentenced to 3 years in prison with a non-parole period of 18 months. The offence was robbery in company causing wounding / grievous bodily harm. 3. The next offences were in 2010 of a police pursuit and drive dangerously. Driving offences followed in the main until 2013 when he was convicted of robbery armed with offensive weapon and received a four-year sentence the non-parole period of two years three months. 4. He was paroled on 27 September 2016. On 15 Nov 2016 he committed affray and was later sentenced to a 12m term with 9m npp. He did not get bail, so was at liberty for some 6 weeks. He was then paroled on 14 August 2017. Since that time his offending has been limited to driving a vehicle on a road whilst not licensed on three occasions, using an uninsured motor vehicle and an unregistered motor vehicle and driving whilst disqualified and with special range PCA and possessing a prohibited drug. 5. The range of offending that he has committed since 2005 on what must be considered a fairly regular basis when at liberty extends from break and enter, assault, various driving offences, failing to appear and of course the major matters highlighted in bold above. 6. The effect of this for present purposes is it plainly disentitles the offender to any leniency. More significantly there are two earlier robbery matters one being in company and the other armed with a dangerous weapon. These are very much of the same character as the current offending and by reason of s21A(3) are an aggravating feature. The use to be made of this in sentencing was considered in McNaughten (2006) 66 NSWLR 566. As noted there at [26] the prior convictions "are pertinent to deciding where, within the boundary set by the objective circumstances, a sentence should lie". Further a prior record is not restricted only to an offender's claim for leniency: R v McNaughton at [20]; Veen v The Queen (No 2) at 477. In Veen, as to a prior record it was there said to be relevant: … to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. Psychologist's report 1. The offender relies on a report of Ms Dombrowski psychologist dated 12 April 2021. She reports that she was told by the offender that he was using cannabis heroin and methamphetamine at the time of the offending and was intoxicated at that time. He expressed regret and said it was stupid 2. She notes it is clear from his record that he has spent much of his adulthood in prison. She says he has trouble establishing a routine and adjusting to life in the community. There must be concerns as to institutionalisation. 3. His developmental history is sadly familiar in that those around him were heavy drug and alcohol users and often resorted to violence though he denies abuse or neglect save that there was sometimes not enough food available. Most of his family have a criminal and drug history. His family is supportive of him. 4. He reached year 11 in his education and was in detention at that time. He has limited literacy and numeracy skills. He did complete a short mechanics course at TAFE and some worker health and safety training. He has never held a position of employment 5. He has an 11-year-old daughter and is still with his daughter's mother as his partner of 11 years. He is socially reclusive. 6. Cannabis use started at age 10 and was heavy usage at 13. Daily heroin use was at 19 and methamphetamine use at 21. He says this was to avoid negative thoughts of childhood sexual abuse and says much of his offending is substance related. Since his arrest he has not used methamphetamine or heroin but has continued alcohol and cannabis use though with less frequency. 7. He has completed an ECLIPSE addiction program. 8. In 2019 he was diagnosed with PTSD due to childhood sexual abuse. He experiences nightmares, anxiety, negative emotions and difficulty in trusting others. He self harmed between 13 and 17 and has had suicidal thoughts but not acted on them in the past. 9. The opinion offered by Ms Dombrowski is that the persistence of his emotional behavioural and psychosocial dysregulation well into his adult years suggests the development of an underlying personality disorder. It is his erratic thoughts, feelings and behaviours and his substance use that must be managed to minimise his risk of reoffending. His experience of childhood abuse needs to be targeted in an appropriate manner by a clinical forensic psychologist. 10. The opinion is further offered that the offender shows signs of institutionalisation. Case management and supervision over not less than two years is strongly recommended. "Bugmy" considerations 1. The offender in his written submissions relies on the principles of Bugmy v The Queen (2013) 249 CLR 571. I am satisfied on the evidence that such principles apply here. It is important to remember that any mitigation of sentence on this ground is not due to the fact of a person being of aboriginal heritage for to do so would be, as was recognised in Munda v WA [2013] HCA 38, to deny aboriginal people their full measure of human dignity. Rather, as was said by Simpson J in Kennedy v the Queen [2010] NSWCCA 260 in respect of Fernando, what is being addressed or recognised is the fact of social disadvantage. The facts of this case are not of the extreme kind in that the offender remained at school until year 11 and denies any abuse or neglect from his family members. Yet at the same time he did whilst in juvenile detention suffer sexual abuse, and was clearly exposed to drug use at a very young age because he began abusing drugs at a very young age. He was also exposed to violence in his environment. I find that this is a background that fits the description referred to in Bugmy at [40] such that it "may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way". 2. Further there is about the offending being considered here, even amidst the seriousness of this type of offending, an element of immaturity reflected in the words spoken and the behaviour set out in the agreed facts. With that in mind paragraphs [43] and [44] of Bugmy resonate where it was said: [43]… The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. [44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. 1. It follows that in this case there should be full weight given to the deprived background of the offender. Remorse, prospects, likelihood of re offending 1. The offender has been in a relationship with his partner for 11 years and they have an 11-year-old daughter. That means that relationship has persisted for 11 years which suggests some degree of stability in the life of the offender though with his criminal record not as stable as one might hope. Since his arrest in December 2019 to date, a period of some 16 months, he has spent eight months in custody. There are no reports of bad behaviour in custody and he has been compliant with his bail conditions but for the breach on New Year's Eve which I consider minor. At his sentencing hearing there were present a number of members of his community plainly attending to support him. In evidence was a letter to the Court dated 20 April 2021 which was typed and appeared to be on a template from a computer program in its layout and which was said to be typed by the offender. Apart from indicating some competency with writing and technology the letter expresses the offender's sincere remorse and describes his actions as stupid and which he regrets. He says he was not in a good place at the time of the offending and was struggling with a terrible drug habit with ice and heroin. He says he is very different today having finally made the decision that a life of drugs is not for him and it is up to him now to "step up" for his family. He has taken steps to get his driver's license (numerous offences of driving without a license or whilst disqualified are on his record) and that he has started a certificate three course of community service. He wants to become engaged in community service work to seek to assist in preventing other young members of his community from making the mistakes that he has made. 2. The offender expressed similar regret and the similar view that his conduct was stupid to the psychologist. That conference occurred on 22 March 2021. 3. The degree to which the court would accept these expressions of remorse and acknowledgement of wrongdoing must be tempered by the fact that it was only three weeks prior to the trial and more than 12 months after being arrested that a plea of guilty was entered. I take that into account. I am however impressed by the degree of support that was apparent for the offender and by his stated intentions in his letter to the court and his desire to play some role in the life of his daughter in a positive way and conclude that he does recognise what he did was wrong and does have a desire to vary from the antisocial lifestyle that he has been engaged in throughout his adult life. 4. With apparent community support and with the support of his family and with a level of education at least to year 11 level and the commencement of a TAFE course there is a basis, and I find, that the offender does have some positive prospects upon his release to the community. His prospects however as to both engaging pro-socially and contributing to the community and not reoffending is of course linked to his success in no longer abusing drugs. The evidence is that he has not used methamphetamine or heroin since his arrest which was in December 2019, now some 16 months ago. He does continue to use cannabis and alcohol but told the psychologist that the use was no longer daily. He has therefore achieved a significant period of abstinence from the more damaging drugs, without in any way suggesting that there are not inherent risks in continued use of alcohol and cannabis with a history such as this offender. His current abstinence from heroin has been assisted by participating in a suboxone programme which I understand is comparable or analogous to a methadone style program. 5. The offenders history of offending means that any assessment of the likelihood of his reoffending must be very guarded. Sentencing considerations 1. Section 3A of the CSPA sets out 8 purposes of sentencing. It is clear from the foregoing that those requiring most consideration here are deterrence, denunciation, protection of the community and the promotion of rehabilitation. 2. General deterrence is a particularly important sentencing consideration for break and enter offences, or, as put in R v Maher, [2004] NSWCCA 177 at [44] the courts need "to send a very clear message to others who may be minded to conduct themselves in a similar fashion that if they come before the courts they will be punished severely". 3. I accept the matters advanced in the psychologist's report. Given the socially disadvantaged background of the offender and the concerns expressed as to his mental health, the offender is not a good vehicle for delivering the message of general deterrence, nor, though to a lesser degree, of specific deterrence. 4. The offending conduct is to be denounced, but that too requires consideration of the circumstances overall. Not only are there the subjective matters to consider, but it is to be remembered that the matter is objectively below the mid range; the break in was not into a person's home, there was no contact with any person, and nothing of value was stolen. 5. The two matters that require the most consideration are the competing purposes of promoting rehabilitation, and protecting the community. The offender has a flagrant disregard for laws, though that disregard needs to be viewed through the prism of the subjective matters outlined above. 6. Section 5 requires that a sentence of imprisonment should not be imposed unless no penalty other than imprisonment is appropriate. Here, it is conceded that there is no more appropriate order. Bearing in mind the seriousness of the offence as indicated by the maximum sentence and standard non parole period, my review of the objective matters and subjective matters, I agree with that view. 7. This offence has a maximum sentence of 25 years and a standard non-parole period of 7 years. This reflects the serious regard the legislature has this type of offending. General deterrence is considered to be particularly important for quite obvious reasons. 8. The sentence needs to reflect the admitted abhorrence of society to this type of offending. Protecting the community is an important consideration; the likelihood of reoffending is sadly to be assessed as medium to high, and the offenders prospects could not be described as promising, though as discussed above I consider the offender's prospects to be more promising than may have appeared at first blush. 9. In so far as mental health is concerned I note De La Rosa (2010) 79 NSWLR 1, at [177]. In short, the 4 propositions stated in that par all apply here, namely: 1. The offender's mental problems, if contributory to the offending in a material way, may reduce moral culpability. I find that to be the case here. The offending has plainly been contributed to the background of the offender, his social disadvantage, his long term drug use from a young age, and a marked aspect of immaturity that pervades the conduct, as serious as it is. This may lead to the conclusion, which I reach, that the offender is not an appropriate vehicle for general deterrence, as already commented on above, and leading to a reduction in sentence. A similar effect can be had on the need for specific deterrence, and as noted above there will be some allowance in this regard. 2. The state of health may also mean that custody is a greater burden for the offender. In this case it is easy to think this would be so, yet there is no evidence of difficulties in the earlier and significant periods of custody. I make some allowance for this, but not to the extent that may have been allowed had there been some better evidence on the issue. 3. At the same time, there remains the need to protect the community, and the offender's record is relevant in this regard. That too I have taken into account. Parity 1. The doctrine of parity on sentencing requires, as far as the law permits, that like be treated alike and that differential treatment be meted out to reflect differences between those that are relevantly different: Green & Quinn (2011) 244 CLR 462 at [28]. 2. In Afu v R [2017] NSWCCA 246, the Court made the following observations regarding the operation of parity principles: [13] Consistency in the punishment of offences against the criminal law finds expression in the parity principle. That principle requires that like offenders be treated in a like manner, but also allows for different sentences to be imposed for the same offences to reflect different degrees of culpability and/or different circumstances. Unjustifiable disparity is an infringement of the equal justice norm. 1. In Lago v R [2015] NSWCCA 296, at [56] it was said: [56] The test for determining whether there is a justifiable sense of grievance is objective: Green at [31]. The question is whether a reasonable mind looking overall at what has happened would see that the applicant's grievance is justified: R v Wei Pan [2005] NSWCCA 114 at [34]; Dwayhi v R; Bechara v R [2011] NSWCCA 67; 205 A Crim R 274 (Dwayhi) at [21]. [57] What is required to be shown is a marked disparity between sentences giving rise to the appearance of injustice because one offender has been unfairly treated having regard to the sentence passed upon the other offender: Green at [31]-[32]. Other descriptors of what is required include gross, glaring or manifest disparity: England v R; Phanith v R [2009] NSWCCA 274 at [61]-[67]; Dwayhi at [24]. [58] It is also necessary to keep in mind that it is the sentence imposed upon a co-offender which is said to give rise to a sense of injustice, not the sentence imposed upon the offender: Lewins v R [2007] NSWCCA 189; 175 A Crim R 40 at [7]; Dwayhi at [26]. 1. The co offender Mr Brown received a four year sentence with a non-parole period of 2 ½ years. Special circumstances were found on the basis of a longer period of supervision to assist in rehabilitation concerning drug use and that he is the sole carer of his children. In respect of Mr Brown I note the following: 1. The criminal history of Mr Brown is before the court. He was born in November 1992 so is some 10 months younger than the offender. His record also commenced at a young age including at age 16, 3 separate occasions of aggravated break and enter and commit serious indictable offence though that matter was dealt with in the children's court with a control order of 6 months being ordered (and I note the offender was dealt with in the District Court at age 16). Shortly after there was another such offence with a nine-month control order made with a one-month non-parole period. Thereafter there is various offending of destroying and damaging property and entering enclosed lands and resisting an officer and some driving offences and also assault. His most recent offending appears to have been in 2015 for driving whilst disqualified. Viewed favourably Mr Brown committed no offences other than driving offences since 2010 as I read his record. Whilst this record is not a good one, it is not as unfavourable as the offender's record. It is a point of distinction between them. 2. Mr Brown did not suffer any childhood sexual abuse. He also had an opportunity well beyond the other offenders in that he received a scholarship to attend Scots College where he remained until year 9. Whilst this would suggest a far lesser degree of social disadvantage than the other offenders, the judgment does note the disadvantageous features of Bowraville to where Mr Brown returned, and the difficulties that posed for him. 3. Mr Brown was assessed as a medium to low risk of re offending. 1. The co-offender Mr Wayne Dungay received a sentence of 3 ½ years with a non-parole period of two years. The starting date for that sentence was three months after his arrest and imprisonment as he had been on parole. Special circumstances were found in his case to assist in his drug rehabilitation. I note the following about Wayne Dungay: 1. He is the younger brother of the offender and was born on 9 January 2000. He was subject to a control order of 12 months at the age of 13 for aggravated break and enter and again at the age of 14. There was a third such offence in that same period and later in 2014 a fourth offence. At age 17 he committed assault occasioning actual bodily harm. There were other offences including before the local court but not of such seriousness. This is a disturbing record in one so young (he is now 21) yet at the same time that very fact of youth counts in his favour. I would also note that since 2015 the only offending was in 2019 of driving an unregistered car whilst unlicensed and possessing drug equipment for which he received fines. 2. At the time of offending he was on parole. 3. He was said to suffer an intellectual impairment and possibly from ADHD. Judge King SC found the principles of Bugmy applied so as to reduce his moral culpability. His youth was a factor in his favour, as was the fact this was to be his first period in custody as an adult, and that he was likely to be more vulnerable in prison than others. 4. He had a history of drug and alcohol abuse. 1. The co offender Mr White was sentenced for a number of offences in addition to those committed with the offender. He was sentenced to an aggregate term of imprisonment. The indicative sentence for the matters for which the offender is charged was 2 ½ years with a non parole period of 18 months. In respect of Mr White I note the following: 1. He was born on 10 November 1982. His record similarly starts whilst a child and from a young point includes larceny offences and breaking and entering. His first occasion in the local court was for assault and then contravening an apprehended violence order. His record includes breaking and entering and stealing and in 2008 an aggravated break and enter and commit serious indictable offence in company. He received a term of three years imprisonment with 18 months non-parole. There was a pause in offending then to 2015 when there was a number of assault charges, a pattern that continued up to 2019. 2. Mr White was a victim of childhood sexual assault, as was the offender. 1. The two main points of the Crown in this regard were to note the difference in the discount, and to emphasise the offender's criminal record. The Crown pointed to the sentence of Mr Brown of 4 years, and submitted therefore prior to any discount of 25% the starting point was 5 years and 4 months. In simple terms, applying the available 10% to that period as is available to the offender, the sentence would be 4 years 10 months. The same approach to the sentence of Mr White would see a result of 3 years. 2. The conclusions that I reach concerning parity are as follows: 1. I accept the submissions of the parties that there is no meaningful distinction in the role played by the various offenders in the offending. 2. All of the offender's have significant criminal histories, and of those the offender's is possibly the worst. 3. All the offender's have a background of drug abuse and of dysfunctionality in their formative years. 4. The social disadvantage is least in the case of Mr Brown. 5. The offender and Mr White have both suffered childhood sexual abuse. Both have mental health issues. I consider the mental health situation of the offender to be significant, and it is a marked point of distinction to Mr Brown's position. 6. The offender is entitled to only a 10% discount on his sentence due to the time of his plea, unlike the 25% discount received by the other offenders. 1. In my view the ultimate sentence should not be less than that of Wayne Dungay, given the difference in age and criminal history. Nor in my view should the ultimate sentence exceed that of Mr Brown. In that regard, whilst Mr Brown has the benefit of a greater discount, and a lesser criminal history, the social disadvantage and mental health considerations favour the offender to such an extent as to balance this out. The sentence of Mr White was part of an overall period of offending by him and whilst some guidance is available from the indicative sentence, I consider the penalties for solely the offending of the offender, that is as received by Mr Brown and Wayne Dungay, to be of more assistance. I would note however that Mr White had similar subjective features to the offender, including childhood sexual abuse and a disadvantaged background. Special circumstances 1. I make a finding of special circumstances due to the risk of institutionalisation, and the significant rehabilitation needs of the offender in light of his background, mental health, and substance abuse issues. I also take into account that time in custody is likely to more than usually onerous for this offender given his personal circumstances. Variation from SNPP 1. The non-parole period that I will impose will be at variance from the standard non-parole period. This is because my assessment of the objective seriousness of this matter is below the middle of the range of objective seriousness referred to in section 54A. Further it is arrived at having taken into account the subjective matters outlined above which includes those same matters relied upon for the finding of special circumstances. Conclusion 1. Taking into account the matter on the form 1 and all the above matters including issues of parity, and before applying the 10% discount my view is that there be a term of imprisonment of 5 years. Applying the 10% discount results in a term of imprisonment of 4 ½ years. In light of my finding of special circumstances there should be a non parole period of 2 ½ years. I consider that to be the minimum period in custody for this offending in all the circumstances of this case. 2. I note the offender has spent 8 months and 3 days in custody. I will backdate the sentence by that period. It was argued that some further allowance should be made for the approximately 8 months on bail on conditions which prohibited the offender from leaving his home unless in the company of a family member. In all the circumstances of this offender's life, whilst this condition is plainly restrictive, I would not describe it as highly strict. The offender does not work, and has minimal interests outside of the home, albeit that he hopes this will change. The offender relied on Banat v R [2020] NSWCCA 321 in support of this argument. Whether the allowance is made as argued is a matter of discretion. I consider some allowance should be made for being on bail on these conditions for approximately 8 months because it is undoubtedly an impingement upon his liberty. I propose allowing 2 months in this regard so that the start date of the sentence will be backdated by 10 months and 3 days. As the date of this sentence is 29 April, this would result in a non parole period ending on Christmas Day. For that reason, I propose allowing a further 3 days, so that the non parole period will expire on 22 December. Further reasoning made after further submissions; to be read in conjunction with this judgement: 1. ADDENDUM: [NOTE:] [The above reasons (the initial reasons) were prepared prior to hearing the further submissions with a view to being finalised after hearing the further submissions. Judgment was given after hearing the further submissions. At that time a hard copy of the initial reasons was handed down, and added to orally ex tempore by these further reasons ("further reasons"). What is set out below is the transcript of those further reasons transcribed into this judgment. The conclusion of the initial reasons has been deleted and the conclusion of the reasons on sentence having heard all the submissions is set out below, which for reasons set out below results in the sentence remaining unchanged.] 2. HIS HONOUR: Christopher Dungay is to be sentenced today, in respect of one count of contravening s 112(3) of the Crimes Act. The matter was heard last week and adjourned at the end of the hearing, to enable both parties to obtain the written reasons on sentence for a co-offender, Mr Timothy White. The matter was relisted for today, for the parties to make any further submissions about any matter that they wished to address but in particular, what point they might want to make as to parity, which was significant because Mr White received an indicative sentence of two and a half years and an indicative non-parole period of 18 months. That was in respect of a matter where he was dealt with for a number of offences and ended up with an aggregate sentence of seven years, with a non-parole period of four years and two months. 3. The other two co-offenders, in respect of whom the reasons on sentence were available last week, were Mr Dungay's brother, Wayne and a Mr Greg Brown. Those two offenders received sentences of, in the case of Mr Brown, a four year sentence, with a non-parole period of two and a half years and Mr Wayne Dungay, a sentence of three and a half years, with a non-parole period of two years. 4. I will note, as I have in the initial reasons, that the Crown, on the parity issue, has emphasised that the three co-offenders, that is other than Mr Christopher Dungay, received a 25% discount, so that if you extrapolate what the sentences are, prior to the discount, is the relevant way of getting an appropriate comparison because Mr Christopher Dungay is entitled to a 10% discount, not 25%, so you need to compare like with like, so far as what the actual sentence before the discount is applied and I have done that in my initial reasons. 5. On the parity issue, there are a number of points of distinction that are clearer to me now and some of which confirm what I had proceeded on, in the initial reasons, as between Mr White and Mr Christopher Dungay. They have in common a history of social disadvantage and also a history of suffering childhood sexual abuse and suffering post-traumatic stress disorder as a result and also a history of misuse of drugs. Unlike Mr Dungay, however, Mr White also suffers from a mild intellectual disability and as was pointed out by Judge Flannery in her reasons, she formed the view that Mr White was not as engaged in the offence that Christopher Dungay is being sentenced for today, as the other three had been. 6. A notable agreed position of the parties last week was that I should be proceeding on the basis, and I have, that the role of each of the three offenders, Mr Brown, Mr Wayne Dungay and Mr Christopher Dungay, should be considered approximately equal and that to try and distinguish between them would be an exercise in splitting hairs. That is a point of distinction then concerning Mr White. And the other aspect of it is that Mr White has a record that is certainly no worse and indeed, has a significant period of no offending, in comparison to Mr Christopher Dungay. 7. For those reasons, I am of the view that I have largely taken those matters into account, in the written reasons and I have just outlined my further reasons about them now and that does not lead to any alteration in the sentence that I have arrived at, in the initial reasons, which I will announce shortly. 8. A couple of other points were clarified by Mr Boyd, I will hand down the written reasons but they may need to be amended, in accordance with what I say now. Firstly, because there was a submission made about the purpose of Suboxone, which is a, if I can term it this way, a substitute controlled drug to assist with people who have addiction and it was said last week that it was of assistance with both heroin and methamphetamine. I cannot find in court now in part of the judgment where I referred to that, if I did refer to it and if I did, I may have repeated what I have just said. Mr Boyd tells me, from the bar table today, that it is an opiate replacement and therefore, it is only helpful in treating heroin addiction, not methamphetamine addiction. 9. Mr Boyd says that strengthens his client's case because he has been successfully abstinent for some period of time. I can indicate that, despite the background of Mr Dungay, which would not encourage one to think that he is in a position to turn things around in a hurry, I have formed a view that his prospects are better than what you might have thought and that the clarification of the Suboxone issue does not necessitate any change in my reasoning. 10. The next point Mr Boyd referred to was the way I should treat the juvenile record, of Mr Dungay. I have indicated, in my reasons, that he commenced offending at a very young age, which is, in my view, more reflective of his disadvantaged background, than anything else. I certainly did not take an offending occurring at 13 years old into account adverse to him and the first major event that I refer to, in terms of his offending, was the offence that he was sentenced for in 2008. 11. The next point clarified by Mr Boyd was as to the bail conditions and I have taken into account the case of Banat, which was provided to the Court at the conclusion of the last day in court last week and reference was made to authority that, in exercising the discretion as to how to take into account the strictness of bail conditions, which were said to be akin to house arrest or home detention, that you look at the purposes of protecting the community and how that is being served, as well as the imposition upon the offender. 12. It was suggested I might just take that into account on an overall basis, just another factor to take into account on the instinctive synthesis approach. The approach I have adopted is to quantify how much of that eight month period should be considered, as a period by which the sentence should be further backdated. Just to explain to the non-lawyers in the room, the backdating situation today is 29 April and Mr Dungay has already spent eight months and three days in prison. So any sentence would be said to notionally have started eight months and three days ago, whatever that might be. In addition to that eight month period, I have allowed a further period of two months, taking into account for his time on bail on the conditions, so that it will be backdated by ten months and three days. The reason I did that was because I did not think it was a huge imposition upon him, given his lifestyle and lack of employment, that the condition of only leaving the home with a family member was imposed upon him but at the same time, it is clearly an imposition on his liberty which, in my view, entitles it to be taken into account in the way that I have done. 13. The last point I think that was made this morning was to emphasise that in the decisions of Judge King SC and also of Judge Flannery, the point was made in both cases that there was no evidence that there was any ammunition available in the gun or even if the gun worked, the gun being particularly significant because it is a matter of special aggravation and I have taken that matter into account. 14. I will have the transcript taken out of what I have just said, to go as an addendum to these reasons, which I will publish, subject to the amendment that may need to occur, in relation to Suboxone. It is about 20 odd pages long and I do not propose reading it onto the record but it is appropriate, given the nature of the process we are engaged in, that there be something publicly announced, other than the bare outcome and so for that purpose, I will just briefly give what I might call a précis of this judgment. 15. I have set out the nature of the offending, that is the offences, under s 112(3). The maximum sentence of 25 years and the non-parole of seven years. There is also a matter of conspiracy to be taken into account under the form 1 procedure. I have set out the facts, in the way that they are set out in the Crown bundle. I, ultimately, when I considered objective seriousness, found it to be below the midrange, that is below the level of objective seriousness identified by s 54A and I note that that is consistent with the reasons of Judge King and also Judge Flannery. 16. I then outlined the subjective case. I note the guilty plea, at the time it was made, it allows only a 10% discount. I have then set out the criminal history and I have emphasised the two earlier offences of robbery in company and also robbery armed with an offensive weapon. I have made reference to the reasoning of Veen (No 2), as to the relevance of the offender's criminal history, including to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence, a continuing attitude of disobedience with the law. In the latter case, retribution, deterrence and protection of society may well indicate a more severe penalty is warranted. 17. I have then set out the matters of his background, as per the psychologist report and I have made a finding that this is a case of social disadvantage, so that the principles set out in Bugmy and Munda and also in Kennedy v The Queen apply. 18. I have then addressed the matters of remorse, prospects and the likelihood of reoffending, favourable to the offender. I note that he has been in a long term relationship, which has had some stability in his life, despite the fact that over the last 11 years he has also been involved in serious offending and that he has an 11 year old daughter, that he wants to play a meaningful role in the life of, which is to his credit. 19. I have also noted that he has taken steps to obtain his driver's licence, which has been a problem for him in the past and he has expressed a number of times now, including in the affidavit that I read this morning, his desire to change his ways and lead a more prosocial life and, as he puts it, step up. 20. I have then outlined sentencing considerations that I consider are relevant in this case. 21. I accept what has been said in the psychologist report and that given his disadvantaged background and the concerns as to his mental health, expressed in that psychologist report, that the offender is not a good vehicle for delivering the message of general deterrence, nor though to a lesser degree, specific deterrence. 22. There was never any argument that there should not be anything other than a term of imprisonment and I have also made mention of the principles from De La Rosa. I then considered parity and I have indicated already this morning the view I came to, after having considered the various matters, was that the ultimate sentence should not be less than that of Wayne Dungay, given the difference in their age and criminal history. Nor, in my view, should the ultimate sentence exceed that of Mr Brown. In that regard, whilst Mr Brown has the benefit of a greater discount and a lesser criminal history, the social disadvantage and mental health considerations and suffering of sexual abuse, favour the offender to such an extent as to more than balance this out. 23. The sentence of Mr White was part of an overall period of offending by him and whilst some guidance is available from the indicative sentence, I consider the penalties for solely the offending of the offender, that is as received by Mr Brown and Mr Wayne Dungay, to be of more assistance. 24. I would note, however, that Mr White had similar subjective features to the offender, including childhood sexual abuse and the disadvantaged background but I also note the further matters of Mr White that I have commented on this morning. 25. I make a finding of special circumstances. Due to the risk of institutionalisation and the significant rehabilitation needs of the offender, in light of his background, mental health and substance abuse issues. I also take into account that time in custody is likely to be more than usually onerous for this offender. 26. The result I arrived at is at variance from the standard non-parole period because the seriousness of the matter is below the middle of the range and also taking into account the subjective matters. 27. The conclusion I reach is as follows, this is at para 78 of the initial reasons. Taking into account the matter on the form 1 and all the above matters including issues of parity and before applying the 10% discount, my view is that there should be a term of imprisonment of five years, a term purposely less than Mr Brown, for the reasons set out above. Applying the 10% discount results in a term of imprisonment of four and a half years. In light of my finding of special circumstances, there should be a non-parole period of two and a half years. I consider that to be the minimum period in custody for this offending, in all the circumstances of the case. I note the offender has spent eight months and three days in custody. I will backdate the sentence by that period. It was argued that some further allowance should be made for approximately eight months on bail, on conditions which prohibited the offender from leaving his home, unless in the company of a family member. 28. In all the circumstances of this offender's life, whilst this condition is plainly restrictive, I would not describe it as highly strict. The offender does not work and has minimal interest outside of the home, albeit that he hopes this will change. 29. The offender relied on Banat v R, in support of this argument. Whether the allowance is made, as argued, is a matter of discretion. I consider some allowance should be made for being on bail, on those conditions, for approximately eight months because it is undoubtedly an impingement upon his liberty. I propose allowing two months, in this regard, so that the start date of the sentence will be backdated by ten months and three days. As the date of this sentence is 29 April, this would result in a non-parole period ending on Christmas Day. For that reason, I propose allowing a further three days, so that the non-parole period will expire on 22 December. Orders 1. The orders I make are as follows. 1. For the offence under s 112(3), you are convicted. 2. I sentence you to a term of imprisonment, with a non-parole period of two and a half years, commencing on 23 June 2020 and expiring on 22 December 2022, with a balance of term of two years, expiring on 22 December 2024. ********** 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: 06 September 2021