District Court New South Wales Medium Neutral Citation: R v Baldwin-Crescente [2021] NSWDC 255 Hearing dates: 20 May 2021 Decision date: 20 May 2021 Jurisdiction: Criminal Before: Buscombe DCJ Decision: Aggregate sentence imposed one of 3 years imprisonment with a non-parole period of 18 months Catchwords: CRIME — Property offences — Break, enter and commit serious indictable offence — Circumstances of aggravation Legislation Cited: Crimes Act 1900 (NSW), s 112(2) Criminal Procedure Act 1986 (NSW), s 166 Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A, s 3A Cases Cited: R v Ponfield (1999) 48 NSWLR 327 TL v R [2017] NSWCCA 308 Pehar v R [2020] NSWCCA 118 R v Henry (1999) 46 NSWLR 346 Hayek v R [2016] NSWCCA 126 Bugmy v R (2013) 249 CLR 571 Category: Sentence Parties: Director of Public Prosecutions (Crown) Tyrone Baldwin-Crescente (Offender) Representation: Counsel: Ms Crase (Crown) Ms O'Rourke (Offender) File Number(s): 2020/89888 Publication restriction: Nil SENTENCE Introduction 1. The offender stands to be sentenced having pleaded guilty to an offence that on 21 March 2020 in Botany, he broke and entered the dwelling house of David Tharrat and Clara Khamiss at 5605/42-44 Pemberton Street and committed a serious indictable offence, namely intimidation, in circumstances of aggravation, knowing a person was present. That is an offence under s 112(2) Crimes Act and has a maximum penalty of 20 years' imprisonment, and there is an applicable standard non-parole period of five years. 2. The offender also acknowledges his guilt in relation to an offence of damage to property which occurred on the same day, that he intentionally destroyed handcuffs being the property of the New South Wales Police Force. That offence is not such that it has any real impact upon the sentence to be imposed in relation to the aggravated break and enter offence. 3. There is also an offence on a certificate under s 166 of the Criminal Procedure Act of escaping from the lawful custody of a constable of the New South Wales Police Force The Facts 1. The facts are agreed, they are somewhat lengthy and the following is taken from the agreed facts. 2. The offenders are described in that document as being this offender, Amy Bonanno and Temira Bonanno, who I understand from the material before me at the relevant time was in a relationship with this offender. The victim is said to be Clara Khamiss, although she might be thought to be the primary victim. 3. The victim had known Amy Bonanno since she was about eight years of age and also knew Temira Bonanno who is apparently Amy's younger sister. They met through a neighbour. They would see each other at parties and on social media. In 2019, David Tharrat lived at the relevant address. The unit concerned is a two-level, two or three bedroom apartment, the master bedroom being on the first floor. Amy Bonanno was in a domestic relationship with David Tharrat from 2019 and the two briefly resided at that unit until the relationship ended. 4. On 3 August 2019 Amy Bonanno called the victim and verbally abused her while the victim was out at her birthday dinner. Amy Bonanno interrogated the victim and thought "something was happening" - that is how it is expressed in the agreed facts - between David Tharrat and the victim. Apparently nothing was at that stage, according to the facts. However, since 1 February 2020 the victim, Ms Khamiss, had been dating apparently Mr Tharrat, who is sometimes referred to as Dov. 5. Between 8pm and 9pm on Friday 20 March 2020, the victim was picked up from her home and driven by David Tharrat to the unit. They then had a quiet night with some pizza and beers and went to bed around 11-11.30pm in the master bedroom. Before they went to bed the front door was shut and locked and the master bedroom door was also shut. They were the only two people in the unit at that time. 6. At 4.28am on 21 March 2020 this offender, Temira Bonanno, Amy Bonanno and a male believed to be James Kee and an unknown male arrived downstairs at that unit complex. Their arrival was captured on CCTV footage and there are some stills taken from CCTV footage in the agreed facts. This offender was wearing a dark and light blue jumper, dark blue shorts and white shoes and a red and white towel covered his head. A male believed to be James Kee was wearing a grey T-shirt, dark blue shorts, white shoes and a dark Adidas baseball cap. The unknown male was wearing a black hooded jumper with the hood on, black long pants with a vertical lighter stripe down the side and Nike shoes. That person was on the phone when he arrived. He was armed with a large silver, cleaver-style knife. 7. All five of those persons were around the letter boxes next to the glass security doors. This offender is observed to kneel down and take out an implement from his waist and force open a letter box and rummage through it. They all then attempt to gain access through the security door via the intercom. Temira Bonanno tried to keep the unknown male's hood over his head and out of sight of the camera. When that failed, this offender tried to jemmy open the fire door next to the intercom without success. Temira Bonanno then does something with the key pad, opens the glass security door and enters the foyer and they all walk to the lifts. 8. They all entered the lift, but the lift would not go up without a buzzer, so Amy Bonanno and Temira Bonanno both leave and press the intercom to be buzzed up. They speak to another person and try the lift again, but it still would not work. They then all returned to the intercom and buzzed units for several minutes. They covered the intercom's camera to stop the receiver seeing their faces. 9. At 4.36am a male believed to be James Kee leaves the foyer and is out of view of the camera and is not seen again on CCTV footage. An unknown resident comes down and speaks to the remaining four. Before going upstairs, the unknown male in the black hooded jumper walks back to the lobby door and wipes the door handle with his sleeve. 10. At 4.41am this offender, the two females and the unknown male enter the lift and go up to level 6. The principal victim, Ms Khamiss, woke to loud banging on the front door of the unit. Mr Tharrat got up, opened the bedroom door and went out towards the front door. He quickly returned to the bedroom, shut the bedroom door and locked it. The victim then knew that people were inside the unit because she heard banging on the front door. David Tharrat said, "What the fuck do you want?" A male voice said, "Where are the drugs, where are the drugs?" It is a reasonable inference that it appears that Amy Bonanno had kept a key to the unit itself and that may well have been what was used in order to get inside the unit, given that it was locked at the relevant time. 11. David Tharrat was pushing against the bedroom door from inside the bedroom. Eventually the bedroom door broke at the hinge. The victim saw a male who she recognised as Temira Bonanno's boyfriend, that is, this offender, and an unknown male in the group try to push their way in. The group managed to overpower David Tharrat and forced their way into the bedroom. The unknown male was wearing a black hoodie with his hood up the whole time and black tracksuit pants. The two women were right behind the unknown male. The victim stood there in her underwear and singlet. Understandably, the facts record her as being terrified. David Tharrat and this offender were holding each other in the doorway wrestling. The wrestle moved outside the bedroom and the victim did not see or hear from David Tharrat for the rest of the incident. He is shown in the CCTV at 4.44am running from the building. 12. Amy Bonanno ducked under the arms of this offender and, according to the facts, "went straight at the victim." Temira Bonanno then walked into the room and "went straight at the victim". Amy Bonanno started punching the victim around the head and stomach. She said to the victim, "I can't fucking believe you. I wouldn't care if you had have told me about you and Dov," being the nickname of Mr Tharrat. 13. The facts then detail some violence by the two women towards the victim. It is not suggested that this offender was involved in that violence or the smashing of a laptop of the victims, so I will pass over that part of the facts. 14. This offender is recorded, however, as coming back into the bedroom and saying, "Where's the drugs, where's the drugs?" The unknown male was looking through drawers and smirking at the victim at one point. Amy Bonanno was also looking through the bedroom. A male voice, who the victim believed was the unknown male, then said to Amy, "Your sister is having a seizure outside. We need to go." And then there is some suggestion that Amy Bonanno took some shoes of the victim and came back and hit her. 15. This offender came in and started smashing the sliding doors of the built‑in wardrobe in the bedroom. The victim stayed in the master bedroom for the whole incident, but could see out the door and saw this offender, the unknown male and Temira Bonanno going up and down the stairways. At one point Amy Bonanno said, "Tyrone," clearly a reference to this offender, "stop, let's go, the cops are coming." 16. The CCTV captures the offenders leaving the apartment. Amy Bonanno and this offender are shown in the CCTV leaving the apartment at 4.56am. 17. When all was quiet, the victim looked for Mr Tharrat. She could not find him and was worried. She was obviously extremely scared throughout the whole incident. She looked for her iPhone and noticed it was gone. She found Mr Tharrat's phone and called triple-0. When she called triple-0 she was crying and scared, telling the operator people broke into her boyfriend's house. The victim said she was worried someone might still be there and asked the police to come as soon as possible. She made various complaints, requesting that they get there: "Please get here because I am fearful." Things throughout the unit were smashed and the unit was in a complete state of disarray. 18. Police attended the unit and spoke to the victim. They cleared the property and saw property was strewn throughout and numerous mirrors had been removed and their fixtures had been shattered. 19. Upon walking back to their police vehicle, the officers saw a vehicle in which Amy Bonanno and Temira Bonanno were in the front seats and the offender was in the rear seat. Those three persons were then placed under arrest and were instructed by the police to stay in the car. Despite being told they were under arrest and asked to stay in the car, all three stepped out of the car. Constable Hayden then placed handcuffs on this offender and Amy Bonanno and asked them to stay by the wall. 20. At one point Temira Bonanno interrupted saying, "Let's go," and said she did not want to provide a statement. Temira Bonanno stepped away from the wall and was asked to step back. She did not. The officer with force pushed her back. She continued trying to move forward despite being asked to stay. At this point the officer used a redirection drill. As this was happening, this offender ran towards police and continued to run past them. Constable Hayden chased after the offender on foot through a number of streets set out in the facts. The offender climbed over the fence of a property on Trevelyan Street. Police stopped the pursuit and requested assistance. Temira Bonanno ran in the opposite direction and Amy Bonanno ran after her. They were, as I understand it, stopped, or at least Amy Bonanno was stopped, by police a short distance after running away. 21. At 7.44am Detective Senior Constable Murphy received a phone call and spoke to Temira Bonanno who said a number of things. Detective Murphy could hear a male voice and asked to speak to the offender. The offender said he did not have handcuffs on any more and they were in pieces. He asked who pushed his girlfriend, referring to the officer pushing Temira. The detective said he would find out and would call him back. 22. At 8.15am Temira Bonanno and the offender called Detective Murphy again. He informed them that they needed to come to a police station. The offender said he was not going to come in and that he had already used an angle grinder to cut the handcuffs off and they were now in pieces. He said there was no way he would come in. He asked if it was a show cause offence and said he was not going to come in. He then hung up. 23. This offender and Temira Bonanno were arrested apparently in Matraville. The offender participated in an electronically-recorded interview and various things he had to say are set out in the facts. I do not propose to read them all onto the record. He did suggest his DNA and fingerprints would be inside the unit because he had visited the unit a couple of times previously. He claimed to have been buzzed up by David Tharrat and he did assert, which apparently is the case, that he took the handcuffs off with an angle grinder. His fingerprints were found inside the unit on the bedroom side of the master bedroom door that broke at the hinge. 24. They are essentially the agreed facts. Objective seriousness 1. Turning then to my assessment of the objective seriousness of the offences, although this is the aggravated form of the offence, in terms of the break and enter offence, I have had some regard to the objective factors discussed in the guideline judgment of R v Ponfield (1999) 48 NSWLR 327, noting that the status of that decision has been questioned. See TL v R [2017] NSWCCA 308 at [73]. The offender was clearly involved in a joint criminal enterprise with at least three other persons nominated in the agreed facts, two being female and one male. 2. The offender is criminally liable for the offence on the basis of the doctrine of joint criminal enterprise. While each participant in a joint criminal enterprise is equally responsible for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, a particular participant's level of culpability is to be assessed by reference to the conduct of that particular participant. 3. This offender at the time was in a relationship with one of the females. The offence occurred in the early hours of the morning at the home of the principal victim's boyfriend and at a time when the victim and her partner had retired to bed. Those involved in the joint criminal enterprise entered the unit and began to bang on the bedroom door where the victim and her partner were. This offender was one of the group who overpowered the victim's partner and forced their way into the bedroom. Clearly the principal victim, Ms Khamiss, would have been terrified during the ordeal. This offender began to wrestle with the principal victim's partner. 4. It appears from the agreed facts that part of the offender's motivation in committing the offence was that he believed the victim and her partner had prohibited drugs on the premises. At one point this offender started smashing the sliding doors of the built‑in wardrobe in the bedroom. The principal victim stayed in the bedroom and observed this offender, the unknown male and one of the females going up and down stairs, which I understand were inside the apartment. 5. Items throughout the unit were smashed and it was in a complete state of disarray by the end of the offence. The offender only left the premises when told that the police were coming. He remained inside the apartment for some 15 minutes. The Crown accepted that his involvement in the offending was less than his co-offenders'. 6. I assess the objective seriousness of the aggravated break and enter as being below the mid range of objective seriousness, but not at the bottom of the range. Aggravating factor 'in company' 1. The Crown submitted orally that the aggravating factor that the offence was committed in company, as contained in s 21A(2) Crimes (Sentencing Procedure) Act, was present here. This submission was accepted by counsel for the offender. 2. Having considered the collection of authorities on this issue in Pehar v R [2020] NSWCCA 118, in my opinion this aggravating factor was made out. I consider that the offender's offence is more serious because of the presence of the others who were involved in it, in the sense that the presence of the other persons conveyed a threat of violence to the victim through their combined presence with the offender. I have considered this factor in assessing the objective seriousness of the offence. The escape lawful custody offence, which is on the s 166 certificate, I consider is well below a notional mid range offence, although not at the bottom of the range for such offences. The offender's subjective case 1. Turning to the offender's subjective case. The offender's date of birth is 24 October 1993, so he is 27 years of age. The offender has a significant criminal history dating back to when he was about 15 years of age, and indeed the offence I am to sentence him for today was committed whilst he was on parole. Some of the offences the offender has committed in the past include armed robbery, assault with intent to rob, assault occasioning actual bodily harm and steal from the person. The offender's criminal record here disentitles him to leniency in this sentence. 2. The offences I am to sentence the offender for were, as I say, committed while on parole and that was for an offence of armed robbery for which, in 2017, the offender received a sentence of three years and nine months, with a non‑parole period of two years and three months. He was released to parole on 23 December 2019 and after that date spent a short period of time in custody on unrelated matters before the commission of the current offences. The fact that the offences were committed on parole is of course an aggravating factor. Sentence Assessment Report and psych reports – 1. In terms of documentary material, I have before me a Sentencing Assessment Report dated 13 May 2021, a psychological assessment report from Dr Sally McSwiggan, consultant neuropsychologist, dated 15 May 2021, a report from Ms Nihal Kucuk, psychologist, dated 29 August 2020, two testimonials from the offender's mother and sister, both dated 17 May 2021, and a letter from the offender dated 17 May 2021. 2. The offender did not give oral evidence on sentence and I have had regard to that fact, especially in assessing what he has told others in relation to the offences and his motivation for being involved in them. Family background 1. In terms of the offender's family background, the evidence before me is that the offender is the eldest sibling, with a younger brother and sister who are twins and a half-brother around 12 years of age. The offender described to Dr McSwiggan growing up in chaotic, dysfunctional homes where he would go between his mother and father. The somewhat dysfunctional early life of the offender is supported by the documents from his mother and sister that are before me. 2. From 12 years of age the offender lived mostly with his father, whom the offender described as unemployed and a chronic substance user of cocaine and prescription drugs. The offender told Dr McSwiggan that he began inhaling drugs second-hand from an early age, as a product of sharing a bedroom with his father. When the offender would complain about this to his father he was told to, "Go for a walk" and not to return until the early hours of the morning. 3. The psychological report further described the offender's experience of childhood punishment as having a "high element of violence" being "belted with a strap" and "bashed whilst his younger siblings were made to watch". By 16 years of age the offender had smoked crystallised cocaine with his father. He described his relationship with his father as "up and down. When I look back it was pretty disgusting." The offender told Dr McSwiggan that he was currently estranged from his father but continues to share a warm relationship with his mother. However, according to the psychological report from Ms Kucuk, the offender reported having a strained relationship with his mother whilst having a good relationship with his father and siblings. 4. There seems to be some inconsistency between the two psychological reports in that regard. Perhaps it is a typographical error, I do not know. However, I do note that today both his mother and sister are present in Court, offering their continued support for the offender and their testimonials further express this. 5. According to Dr McSwiggan's report, the offender has been in several intimate relationships, with this last one leading to an engagement that has since broken down after the offender's return to custody. According to the Sentencing Assessment Report, and perhaps this is obvious from the facts, that partner was in fact a co-offender. Education and employment history 1. Turning then to the offender's education and employment history, he told Ms Kucuk that he attended St Anne's Primary School, changing to Waverley College in high school. He said he was later expelled in year 8 from Waverley College and attended East Sydney High School in years 9 and 10. According to Dr McSwiggan, the offender was excluded from completing year 11 for ongoing behaviour disturbances. The offender told Dr McSwiggan that his father's reaction was to "bash" him if the school called, presumably in relation to his behaviour or attendance. 2. The evidence before me is that after school the offender completed six months of a plumbing trade apprenticeship. He reported no employment history over the last decade due to what the offender stated was an inability to tolerate power imbalances or negative feedback. I will address the evidence before me as to why that is so later on. According to the Sentencing Assessment Report, the offender was in receipt of Jobseeker at the time of the offence. Substance use 1. In terms of the offender's substance abuse, the evidence before me is that the offender has a chronic history of substance use, describing himself as a "poly drug addict" meaning he is not dependent solely on one drug and will use opioids or stimulants as a smoked substance. His substance use is clearly a central issue here as it appears to be the motivating factor behind his offending behaviour. Dr McSwiggan noted that the offender was clearly involved in a cycle of offending, illicit substance use and incarceration, which then exacerbates the offender's emotional instability and increases his susceptibility to illicit substance use. 2. The offender told Dr McSwiggan that he had first smoked marijuana at age 12 or 13 and then began to use MDMA and then cocaine. The offender described smoking crystalised cocaine at age 16 as supplied by his father. He reported smoking heroin after that. He told Dr McSwiggan that at his worst he was using over $1,000 a day worth of cocaine or heroin, having developed a tolerance to those substances. 3. Dr McSwiggan reported that the offender had two previous attempts at drug rehabilitation from which he was discharged upon accepting drugs. In the 12 months before he came into custody he described seeing a psychologist in relation to his drug use. Over the last three months he commenced monthly injectable buprenorphine opioid replacement therapy. He reported positive effects with no undesirable side effects that would dissuade him from following up with an opioid clinic upon his release from custody. He told Dr McSwiggan "I feel like I need to be on something every day. It doesn't matter what it is." While he asserted he had not used drugs since entering custody, that is not entirely consistent with his custodial record. Psychological/psychiatric history 1. In terms of his psychological history, the evidence before me is that the offender has substantial mental health issues which have been, until recently, left completely unaddressed by the offender, and where substance use appears to have constituted the offender's coping mechanism. The offender denied a history of psychiatric treatment to Dr McSwiggan, aside from having seen a psychologist in 2019. He did agree that he had experienced psychosis in the context of illicit drug use. 2. Dr McSwiggan concluded that due to his childhood experiences, the offender had developed psychological vulnerabilities resulting in a lack of effective coping skills, interpersonal relationship difficulties and a low frustration tolerance. Dr McSwiggan offered a formal diagnosis of chronic substance use disorder, currently being treated with buprenorphine opioid replacement therapy which I referred to earlier. Ms Kucuk's psychological assessment 1. Turning to Ms Kucuk's psychological assessment, the subject of her report was largely the offender's disclosure of having been sexually, physically and mentally abused by a male officer at Cobham Juvenile Justice Centre when he was 12 or 13 years of age. Ms Kucuk recorded that he became clearly distressed whilst recalling the details of the abuse throughout the assessment. Ms Kucuk stated that the offender displayed a deep sense of anger, fear, sadness, intense shame, embarrassment and guilt throughout the assessment. He stated that he was often triggered by the sound of keys, suffers from anxiety and is sad all the time. Ms Kucuk reported that, since the abuse, the offender finds it extremely difficult to be around male authority. and he informed her that he commenced polysubstance use to "try and forget about the abuse." 2. Ms Kucuk concluded that the traumatic incident endured at the Cobham Juvenile Justice Centre continues to affect the offender's daily functioning. She offered formal diagnoses of post-traumatic stress disorder and, as a result of his PTSD, has developed a major depressive disorder, generalised anxiety disorder, polysubstance dependence and substance-induced psychotic disorder, all of which co-exist. He told her that he would like to commence psychological treatment, having never previously addressed the sexual abuse that he alleges occurred. 3. There was also mention in Dr McSwiggan's report of the offender taking legal action against the Juvenile Justice Centre and that he harbours a somewhat "unrealistic and mildly grandiose" belief regarding compensation he may receive from his claim. As a result, the offender believes he does not need, nor is he capable of, holding any employment. I was advised by his counsel that no formal legal proceedings have been commenced in relation to the offender's allegations but is apparently under consideration. Response to supervision if relevant 1. According to the Sentencing Assessment Report, the offender is known to Community Corrections and was last supervised on a parole order which commenced on 17 June 2019. Records indicate that his engagement with supervision was deemed poor and marred by reoffending, and multiple breach reports were submitted to the State Parole Authority. A breach of parole report dated 10 March 2020 in the Crown sentence bundle noted that the offender's "sporadic engagement with Community Corrections continues to refute any meaningful engagement and progress made with Community Corrections." He will clearly need to change his attitude to supervision when next in the community if he is to have any hope of being rehabilitated. Attitude to the offence 1. In terms of his attitude to the offences, the offender told Dr McSwiggan his motivation for committing the primary offence was to secure drugs, on the understanding that the victim possessed some. The offender described being under the influence of drugs at the time of the offence and was unaware that there would be a female in the residence, so he claims. The offender told Dr McSwiggan that he was sorry that the victim was hurt and emphasised he was not involved in that action. Those assertions by the offender of course remain untested. The Sentencing Assessment Report noted that the offender denied the severity of the assault against the female victim by the co-offenders. Dr McSwiggan concluded that the offender had some insight into the factors associated with his offending, primarily illicit drug use. 2. Dr McSwiggan further noted that the offender expressed regret for his actions. This is supported by the letter from the offender apologising for the offence and acknowledging drug use as the motivating factor for his offending. In his letter, the offender demonstrated some insight into the impact of the offence on the victim, realising "how scary it would have been for the people inside watching me smash the house up." The Sentencing Assessment Report did conclude, however, that the offender had little insight into victim impact. 3. Regarding the escape police custody offence, the offender told the author of the Sentencing Assessment Report that this was in response to mistreatment by the law enforcement officers towards his partner at the time, one of the co‑offenders. Overall, there appears to be some degree of remorse here. However, the offender has minimised his actions and role in the offence, in my opinion. The future and risk of re-offending 1. According to the Sentencing Assessment Report, the offender was assessed at a high risk of reoffending. Unsurprisingly, Dr McSwiggan noted that the offender's ability to remain in the community will primarily be related to his uncontrolled substance use. Dr McSwiggan further noted that the offender accepts that he is on the cusp of spending his adult years in prison, a future he does not desire. Imposition of sentence 1. The offender entered pleas of guilty in the Local Court and I will allow him a 25% discount for the utilitarian value of his plea. I think there is limited remorse here. There is an expression of remorse in his letter to the Court and in the report of Dr McSwiggan in relation to the aggravated break and enter offence, and I note his early plea of guilty. I do not think there is really any remorse in relation to the escape lawful custody offence, noting he told the author of the Sentencing Assessment Report that he engaged in the offence because of what he perceived was the mistreatment of his then partner, a co‑offender, by a law enforcement officer. 2. His prospects for rehabilitation are no better than guarded and bordering on poor, in my opinion. He has a relatively poor criminal history, he has not responded appropriately to supervision in the past, he committed these offences while on parole and is assessed in the Sentencing Assessment Report as having a high risk of reoffending. He does, however, still retain the support of his mother and sister, who are present today for his sentencing. Much will depend upon his ability to deal with his drug addiction when next in the community. 3. Clearly the offence was committed while the offender was under the influence of a drug addiction. On his part, the motivation for the offence appears to be to obtain more prohibited drugs. The psychological report suggests that he has turned to prohibited drugs as a consequence of events in his childhood, and in particular when he was incarcerated in juvenile custody. 4. Generally, the fact that an offence was committed while under the influence of alcohol or a prohibited drug is not a mitigating factor. Similarly, the fact that an offence was committed by someone who has an addiction to alcohol or prohibited drugs is generally not a mitigating factor. This is because the decision to use alcohol or prohibited drugs is seen as an example of a person engaging in freedom of choice. 5. Addiction, however, in some instances, can result in a lesser sentence being imposed. That generally involves a consideration of the background to the offender's addiction. Addiction can reduce the sentence where the addiction originated because the offender grew up in circumstances of social disadvantage or deprivation, surrounded by the misuse of alcohol or prohibited substances, or where the offender's addiction commenced at a young age and there have been few opportunities to engage in drug or alcohol rehabilitation, or where the addiction resulted from the use of prescribed medication for an injury, illness or surgery, or where the addiction came about as a consequence of child sexual abuse or some other significant trauma. There can be some reduction of the sentence as a consequence of it having a causal connection to an addiction. 6. I have had regard to the discussion of this issue in the judgments in R v Henry (1999) 46 NSWLR 346 and Hayek v R [2016] NSWCCA 126. The unchallenged psychological evidence results in my having regard to those principles in formulating the appropriate sentence here and, to some degree, mitigating the sentence. 7. The evidence before me establishes that the offender has had an early life of considerable social disadvantage. I have had regard to the principles discussed in Bugmy v R (2013) 249 CLR 571 as to the relevance of social disadvantage in sentencing. I consider that there is some reduction in the offender's moral culpability for the offences, due to his early life of social disadvantage. I do not consider that there is evidence establishing that his mental health was causative in relation to the offending. I do consider that his current mental health will mean that his time in custody is more onerous than it is for persons who do not have the mental health conditions he has, and I have taken that into account in determining the appropriate sentence. 8. I propose to make a finding of special circumstances when fixing the non‑parole period, given the evidence concerning his mental health and drug addiction. Clearly he will need very considerable help when next in the community, if he is to have any hope of becoming rehabilitated and living a life free of offending. 9. He has been in custody since the date of his arrest being 21 March 2020. He has served the balance of parole in relation to the armed robbery sentence I mentioned earlier during the period 21 March 2020 and 23 August 2020. He also served, after an appeal to this Court, a fixed term of three months' imprisonment from 21 March 2020 to 20 June 2020 for two counts of possess prohibited drug and bringing a prohibited plant into a place of detention. That sentence was made fully concurrent with the balance of parole. Those offences related to substances found on the offender when he was arrested for the principal offence and entered into custody. 10. Having regard to the principles of totality and the fact that he was bail refused on the current charges, which in practice meant he could not seek a further hearing before the State Parole Authority in relation to parole, I propose to commence the current sentence from 21 May 2020. I will utilise the aggregate sentencing provisions. If I had not done so there would have been limited accumulation of the sentence for the escape lawful custody offence and the sentence for the aggravated break and enter offence. 11. I have had regard to the objectives of sentencing referred to in s 3A Crimes (Sentencing Procedure) Act, which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender's conduct, recognising the harm done to the victim and the community and rehabilitation of the offender. 12. Aggravated break and enter offences like the one the offender is to be sentenced for are very common in our community. People should be able to go to sleep at night without fearing that their home will be broken into and intimidatory conduct committed towards them. Having said that, of course, for the primary victim it was not her home, but it was her boyfriend's home. 13. Whenever an offender is to be sentenced for such an offence, specific and general deterrence require a significant sentence be imposed. Here there is a need for specific deterrence given his prior record. The only appropriate sentence is one of imprisonment. The maximum penalty in relation to the aggravated break and enter offence and the standard non-parole period has been taken into account as legislative guideposts. I have departed from the standard non‑parole period due to my assessment of the objective seriousness of that offence and my finding of special circumstances. 14. The offender is convicted of the aggravated break and enter and the offence of escape lawful custody which is on the s 166 certificate. I will firstly record the indicative sentences. In determining the indicative sentences and fixing the aggregate sentence, I have had regard to all the objective and subjective factors I referred to earlier. The sentences the offender will hear me first announce are what are called indicative sentences. He will then hear me announce an aggregate sentence, which is the sentence that he will serve. It is not arrived at by simply adding up all the indicative sentences. 15. On the aggravated break and enter offence and having regard to the offence on the Form 1, there is an indicative sentence of two years and ten months' imprisonment with an indicative non-parole period of one year and five months. 16. On the escape lawful custody offence on the s 166 certificate, there is an indicative sentence of four months' imprisonment. 17. I consider that an appropriate aggregate sentence is one of three years. As the aggregate sentence is one of three years, I have considered whether or not to extend leniency to the offender and allow him to serve the sentence in the community by way of an intensive correction order. The paramount consideration when considering the issue of an intensive correction order is community safety. In doing so, I have to consider whether a sentence by way of full‑time detention is more likely to address the offender's risk of reoffending. I am also to consider the purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act, which I announced earlier. Here, given his criminal record, his commission of these offences on parole and his inability to engage with supervision in the past, I am not satisfied that community safety would not be compromised if I allowed the offender to serve the sentence in the community. For that reason, I do not propose to extend that leniency to the offender. Just stand up, Mr Baldwin-Cresente. 18. I impose an aggregate sentence of three years with an aggregate non‑parole period of 18 months. It commences on 21 May 2020 and expires on 20 May 2023. The non-parole period expires on 20 November 2021. The earliest date you are eligible to be released to parole is the date of the expiry of the non-parole period which is 20 November 2021. Whether you are in fact released to parole on that day remains a matter for the State Parole Authority, which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date. Just have a seat, sir, thank you. Orders 1. Impose an aggregate sentence of 3 years imprisonment with a non-parole period of 18 months. The sentence commences on 21 May 2020 and expires on 20 May 2023. The non-parole period expires on 20 November 2021. ********** Amendments 20 July 2021 - Edit title of case (no capital letters) 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: 20 July 2021