District Court New South Wales Medium Neutral Citation: R v El Farra [2023] NSWDC 470 Hearing dates: 26 October 2023 Decision date: 03 November 2023 Jurisdiction: Criminal Before: Newlinds SC DCJ Decision: Term of imprisonment of 2 years 9 months to be served by Intensive Corrections Order on conditions set out at paragraph [88](3) Catchwords: CRIME - deemed supply of heroin, butanediol – proceeds of crime – attempt to steal motor vehicle – mental health issues – childhood trauma – drug and gambling addiction – extensive criminal record – good prospects of rehabilitation Legislation Cited: Crimes (Sentencing Procedure) Act 1900, ss 5(1), 21A(2), 21A(2)(d), 21A(2)(j), 21A(3)(k), 73, 73A, 73B Cases Cited: Barbieri v R [2016] NSWCCA 295 Bugmy v The Queen [2012] NSWCCA 223 Cahyadi v R (2007) 168 A Crim R 41 DPP v De La Rosa [2010] NSWCCA 194 Luque v R [2017] NSWCCA 226 Mandranis v R [2021] NSWCCA 97 Markarian v The Queen (2005) 228 CLR 357 Martin [2015] NSWCCA 6 Miller v R [2023] NSW CCA 267 R v Engert NSWCCA (20 November 1995 unreported) R v Holder; R v Johnson (1983) 3 NSWLR 245 R v Letteri NSWCCA (18 March 1992 unreported) R v Sharma [2002] NSWCCA 142 R v Van Ryn [2016] NSWCCA 1 R v Way (2004) 60 NSWLR 168 Stanley v DPP [2023] HCA 3 Veen v The Queen (No 2) 1998 HCA 14 Wong v The Queen (2001) 76 ALJR 76 Yun v R [2017] NSWCCA 317 Zheng v R [2023] NSWCCA 64 Category: Sentence Parties: Rex (Crown) Fadi El Farra (Offender) Representation: Counsel: C Erwin (Crown) A Goldsworthy (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Dib & Associates Lawyers (Offender) File Number(s): 2022/219115 Publication restriction: None JUDGMENT Introduction 1. The Offender is 46 years old. He has an extensive criminal record spanning from 1994, when he was 17 years old, to 2022, when he was 44 years old. It is the sentence for the 2022 offences with which I am dealing. 2. The Offender's criminal history involves convictions for property offences (break enter and steal, armed robbery, steal from person), drug-related offences (supply prohibited drug, possess prohibited drug), personal violence offence (assault occasioning actual bodily harm and maliciously wound), and reckless wounding. 3. As a result of his criminal activity the Offender has spent approximately 9 years in custody prior to the present offending. 4. For reasons I will explain I have concluded that all of the Offender's criminal activity, including that which is before me, can be explained (albeit not excused) by his serious addiction to heroin, which in turn is a consequence of mental health issues which in turn are a consequence of significant trauma he suffered as a child, when he was sexually abused by one of his teachers. 5. Over the years, the Offender has received some, albeit cursory treatment, for his addiction and mental health issues but has never disclosed to any of his treating practitioners (or to anyone else for that matter) the traumatic experience he suffered as a child. It is because of that, in my judgment, none of his attempts at treatment for his mental health or to become drug-free had any real prospects of a successful outcome. He has kept things to himself for perhaps understandable reasons, he felt too ashamed to disclose what does appear to be the genesis of his problems. 6. Mr Goldsworthy, who has appeared on behalf of the Offender, accepts that the threshold prescribed by s 5(1) of the Crimes (Sentencing Procedure) Act 1900 has been satisfied. In other words, it is accepted that no other penalty than full-time imprisonment is appropriate. 7. That concession is, in light of the objective seriousness of the crimes that I am dealing with, and notwithstanding the strong subjective case of the Offender, properly made and is accepted by me. 8. Mr Goldsworthy has however pressed on me that in all the circumstances an aggregate sentence of less than 3 years is within my discretion, and that in all the circumstances, I should conclude that it is appropriate that the sentence be served in the community by virtue of an Intensive Corrections Order (ICO) on strict conditions that the Offender continues on the path of treatment he is currently engaged on. This is because his prospects of being rehabilitated by treatment in the community in the sense of him becoming drug-free and dealing with his apparent gambling addiction, will be greatly enhanced, and thus the chances of him re-offending are correspondingly low. On this analysis community safety will be enhanced. 9. Mr Goldsworthy's submission ultimately is that notwithstanding the objective seriousness of the offending, the Offender's significant criminal history and his previous failed attempts to treat his addiction issues, he is now at what can truly be described as a "turning point" and should be afforded, perhaps his last chance at redemption rather than a lengthy term of full-time custody, which in the long run will not assist his rehabilitation and thus on release he will inevitably again reoffend, thus continuing the treadmill of his life of crime to date. 10. For the reasons I will now give, I have decided to accept that submission. I acknowledge that the aggregate sentence I propose can properly be characterised as lenient. None the less, I have decided it is appropriate. As that sentence is less than 3 years as an aggregate, I have decided to order that term be served in the community pursuant to an ICO. The charges 1. The Offender is being sentenced in relation to the following charges: COUNT SEQ SHORT OFFENCE TITLE PEN BRIEF NARRATIVE 1 7 Supply prohibited drug – ( 15 26/7/22 home search 37.49 g heroin 2 8 Proceeds of crime – s193C(2) 3 $19,395 3 15 Agg BE in company with intent to steal – S111 (2) 14 10:55 PM, 15/6/22, D and MH entered car park at Mascot and made preliminary attempts to steal a Mercedes, but were interrupted by security and left 4 16 Dishonestly obtained property by deception 10 4:30 PM – 5 PM on 24/6/22, both men entered service NSW at Bankstown and presented a forged application for registration with forged "confirmation of sale" to transfer registration of Mercedes DTK57Y to ETG25T (registered to D) 5 18 Supply CQ prohibited drug 20 26/7/22 search of home 3,999g 1,4 Butaneidol 1. The Offender has asked the Court to take the following Form 1 offences into account when being sentenced for the above matters Sequence Offence Section and Act Maximum Penalty Sequence 4 (attached to sequence 7) Possess prohibited drug s. 10(1) Drug Misuse and Trafficking Act 1985 Local Court – 2 years imprisonment and/or fine 20 penalty units • 0.07 grams of Heroin Sequence 6 (attached to sequence 15) ATTEMPT Steal motor vehicle s. 154F Crimes Act 1900 District Court – 10 years imprisonment • Mercedes C350E – registration ETG25T Sequence 9 (attached to sequence 18) Possess prescribed restricted substance s. 16(1) Poisons and Therapeutic Goods Act 1966 Local Court – 6 months imprisonment and/or fine 20 penalty units • 48.4 grams of Drostanolone Sequence 11 (attached to sequence 18) Possess prescribed restricted substance s. 16(1) Poisons and Therapeutic Goods Act 1966 Local Court – 6 months imprisonment and/or fine 20 penalty units • 27.55 grams of Oxandrolone Sequence 12 (attached to sequence 18) Possess prohibited drug s. 10(1) Drug Misuse and Trafficking Act 1985 Local Court – 2 years imprisonment and/or fine 20 penalty units • 0.8 grams of Methylamphetamine 1. There are two backup offences being Sequence 13 and Sequence 14 which I understand will be withdrawn by the Crown at the conclusion of this sentencing process. Plea of guilty 1. The Offender pleaded guilty at the first opportunity in the Local Court to the five charges and is therefore entitled to a 25% discount from what might otherwise have been the sentence. Time in custody 1. The Offender has been in custody since his arrest in relation to these matters on 26 July 2022, a period of approximately 1 year and 4 months. 2. One of the many aggravating factors which I must take into account is that the Offender was on parole in relation to other offences at the time of the arrest, so it does not necessarily follow that he is entitled to an effective credit for the whole of the period he has been in custody since 26 July 2022, albeit it would be open to me as a matter of evaluative judgment to allow some or all of that period. I will come back to this issue in due course. The Facts 1. Mr Goldsworthy contends: "The facts underpinning these counts point to some bungled, amateurish and ultimately failed endeavours to steal a Mercedes-Benz motor vehicle, consequent upon which Mr El Farra's home was searched, and some drugs and cash found." 1. I think that fairly captures what has occurred here, although the significance of the type and quantity of drugs and the amount of cash involved has been downplayed. 2. There is no doubt that the attempts to steal the car were hopelessly amateurish and almost doomed to fail. 3. There is also no doubt that in the Offender's home was found a large quantity of drugs which well exceeded the "deemed supply" quantity which has resulted in admissions by the Offender that he in fact intended to use at least some of those drugs for sale. Moreover, the amount of cash seized cannot be described as insignificant. 4. Notwithstanding the commendable brevity into which Mr Goldsworthy has distilled the facts, I think I should summarise the agreed facts with a little more detail. They are: 1. On 15 June 2022 the Offender and the co-accused (Marcel Haouli) entered a secure underground car park at Mascot. 2. The co-accused, who was driving, drove around the car park for approximately 7 - 8 minutes before parking next to a Mercedes-Benz. 3. The co-accused then got out of the car and approached the driver's side door of the Mercedes carrying an unknown object in his hand. 4. The Offender and the co-accused made their way to the front of the Mercedes, opened the bonnet fully and inspected the engine bay. 5. Around this time, a roaming security patrol sighted the men. The Offender and co-accused then got back in their car and drove away. 6. On 24 June 2022 the Offender and co-accused entered the Service New South Wales centre in Bankstown. 7. The Offender approached the counter and presented a forged "application for registration" document and a forged handwritten "confirmation of sale" and successfully fraudulently "transferred" the registration of the Mercedes into the Offender's name. 8. On 25 June 2022, the Offender contacted a tow truck operator, requesting a vehicle tow, identifying the location of the Mercedes, and said that he was the owner of the vehicle. 9. On 25 June 2022, the Offender and the co-accused again entered the car park. 10. The tow truck arrived but was stopped by security, who spoke to the Offender, who showed them the forged registration documents. 11. The police were called, who searched the Offender. 12. Police located an amount of white powder wrapped in aluminium foil in the Offender's right pants pocket. 13. The white powder was seized, and later testing confirmed the powder to be 0.07gms of heroin. 14. On 26 July 2022 police executed a search warrant at the Offender's home address. 15. On a bedside table was a plastic bag containing 20.7gms of heroin and $6,640 in Australian currency. 16. Police cautioned the Offender and commenced searching the premises. Police also located in the premises the following: 1. $2,175 in Australian currency; 2. Registration papers for the Mercedes (obtained by virtue of the fraud earlier identified); 3. 1.28gms of white powder; 4. $9,950 in Australian currency; 5. 4 x 200ml bottles of anabolic steroids; 6. $650 in Australian currency; 7. Two bags white powder weighing 16.64gms; 8. Four aluminium foils containing white powder weighing 1.63gms; 9. One bag of white powder weighing 139.22gms; 10. A 5L red plastic gerry can containing clear liquid located in the downstairs laundry was also seized by police. On 24 October 2022, analysis of the contents of that gerry can was determined to contain 3,999gms of 1, 4 butanediol, an amount falling at the very top of the commercial quantity threshold. 1. Subsequent testing confirmed that the amount of heroin located by police during the search of the Offender's home totalled 37.49gms. 2. The additional substances found at the Offender's home returned the following results: 1. 135.9gms of crystalline substance (no prohibited drug identified); 2. 38.8gms of drostanolone (steroids); 3. 0.20gms of methyl amphetamine; 4. 27.55gms of oxandrolone; 5. 0.41gms of methylamphetamine; 6. 0.19 of methylamphetamine; and 7. 9.6gms drostanolone. Objective seriousness 1. Counts 1, 2 and 5 are all drug-related offences. Whilst the parties have both addressed detailed written submissions as to the objective seriousness of each offence on a stand-alone basis, I think they should be considered together as part of one piece of overall criminal activity, being the supply of prohibited drugs. Counts 3 and 4 are all related to an attempt by the Offender and co-accused to steal a motor vehicle. The dishonest presentation of fraudulent registration papers to the registration authority whilst, as Mr Goldsworthy has correctly submitted, when considered as a standalone offence, on a strict legal basis comes down to the obtaining of registration papers (which of themselves are worthless) by fraud, as opposed to having any effect on the true ownership of the vehicle and is therefore not connected to the attempt to steal the motor vehicle (the purported transfer being ineffective). I think this is artificial and that I should consider the objective seriousness of Counts 3 and 4 together as steps in a failed plan to steal a motor vehicle. 2. I am required to assess the objective seriousness or objective criminality of the offending the subject of each charge. When dealing with drug offences, factors such as the amount of the drug involved, the role of the Offender and the nature of the Offender's conduct are some of the relevant factors to take into account. 3. As the New South Wales Court of Criminal Appeal recently reiterated in Miller v R [2023] NSW CCA 267 at [24], what is required of a sentencing judge is that the question of objective seriousness of the offences must be considered and factored into the sentencing exercise. In that case, the sentencing judge did not expressly state a conclusion as to how the objective seriousness of each of the offences ought be characterised. Rather, the sentencing judge took what was suggested on appeal to be a "global approach to the assessment of objective seriousness". The Court noted that there can be dangers in not assessing the facts involved in each offence distinctly, however, it is not impermissible to do so, as long as the sentencing judge does consider the individual circumstances of each of the offences. 4. In this case, I must say I find it entirely artificial and productive of potential error in the process with which I am engaged, to try and segment as between the various drug offences and the two offences concerning the motor vehicle the objective seriousness of each charge on a standalone basis. Rather, I think it more appropriate to consider them each together, they both being aspects of what was effectively one overall piece of criminal conduct. In due course I will state the indicative sentences for each offence, consistent with the fact that I have tried to direct my mind to the individual objective seriousness of each charge. The drug offences 1. In relation to the drug supply offences, I take into account: 1. The quantity of the drugs involved; 2. The fact that in relation to the heroin, the Offender accepts that his intention was to use approximately half of the drugs to sell to other people and the balance was for his own use; 3. In relation to the Butaneidol offence, I accept the Offender's evidence that he was "storing" those drugs for someone else for reward either by payment of $1,000 cash or a like quantity of heroin. He did not intend to hold the drugs for very long, however, he did know that the intention of others involved in the criminal enterprise was that these drugs would be on sold for the purpose of people taking them. 1. I have concluded that the objective seriousness of all the various drug offences (including those on the Form 1) is towards the middle of what might be described as the range. Without putting "tags" of mid-range, high range, et cetera, on the conduct, it seems to me tolerably clear that in relation to the supply of drugs the Offender was involved as either a "seller" or a short term "warehouseman" of a large quantity of illicit drugs. He was doing so to make money, all of which to my mind means that the objective seriousness of what he was doing was somewhere towards (albeit perhaps slightly below) what might be described as the mid-range of objective seriousness for such offences. The proceeds of crime: issue of fact 1. As to the proceeds of crime offence, there is an issue before me as to the amount of the cash seized ($19,395) being proved to be all the proceeds of crime. There was a debate between the parties as to whether any suggestion by the Offender that the whole of that money was not the proceeds of crime was an impermissible departure from the plea of guilty. The Crown says it is; Mr Goldsworthy has submitted that the quantum of the money is but a particular of the charge, and he is therefore entitled to contest it. 2. Without resolving that interesting question of law, I have decided to determine the question of fact because for reasons that will become obvious, I do not think the difference has any bearing on the outcome of the sentencing process, although it will have an impact on any order that I am asked to make in relation to the confiscation of that money. 3. In short, the Offender's evidence was that of the $19,395, he accepts that the $6,640 which was next to his bed was the proceeds of drug sales. He however disputes that the balance of the cash is the proceeds of crime. He says the $12,755 which was found around his house hidden in books and other places was either the product of his successful gambling career, or in relation to approximately $3,000 was a collection of rare Australian banknotes, which he says he kept as a hobby. 4. Having heard the evidence of the Offender on this topic including what I found was a very effective cross-examination of him by the Crown, I consider his explanation insofar as it concerns the gambling money to be entirely implausible and reject it. I come to the same conclusion concerning the alleged "hobby" money. I find beyond reasonable doubt that the $12,755 is the proceeds of the sale of illicit drugs. I therefore find that beyond reasonable doubt the $19,395 is the proceeds of crime. 5. Accordingly, I proceed upon the basis that $19,395 of cash that was seized was the proceeds of crime, in particular the sale of illicit drugs. I think the objective seriousness of this charge is entirely caught up in the supply of drugs and so is towards the middle of the range. The attempted theft 1. Turning then to the objective seriousness of the attempted theft of the motor vehicle. 2. Notwithstanding that Mr Goldsworthy's colourful description of the exercise as a: "..bungled, amateurish and ultimately failed endeavours to steal a Mercedes-Benz motor vehicle." 1. I do not think that that really engages with the question of objective seriousness. 2. The fact that a criminal attempts to commit a crime in a hopeless manner to my mind does not have much part if any to play in an analysis of the objective seriousness of the offence. 3. On any view of it an attempt to steal someone else's motor vehicle involving preplanning and organisation that included the forging of important legal documents and inspecting the car and arranging a tow truck to collect it, cannot be described as anything other than serious. The fact that the attempt failed does not really engage with the question because the charge is only that the attempt took place, not that it was successful. 4. The Offender says he got involved in the attempted theft at the suggestion of the co-accused and because he needed the money to buy drugs. The second suggestion is hard to believe since at the time of his arrest he had approximately $15,000 in the bank and $19,000 cash at home. I accept the idea was his co-accused's but do not think in all the circumstances the fact that a person who chooses to try and steal the car in a pre-planned way did so because his friend suggested it has much to do with the objective seriousness of what he did. He after all thought it was a good idea and had plenty of time to think about it. It is more likely to be relevant to the Offender's subjective case. 5. Taking all the facts that I am aware of into account I approach the matter on the basis that the car theft charges are somewhere around the mid-range of objective seriousness for such offences. Aggravating factors – s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 1. There are two aggravating factors that must be considered. 2. The first is the Offender has a significant record of previous convictions (section 21A(2)(d) of the Act). 3. It would be quite wrong for me to take into account those previous convictions in any sense that amounts to me sentencing the Offender for those offences. To do that would amount to double counting which would constitute an injustice. 4. However as has been explained in cases like Veen v The Queen (No 2) 1998 HCA 14 at [477] – [478] "Retribution deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history (of an Offender) when it illuminates the moral culpability of the Offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the Offender and other Offenders from committing further offences of a like kind". 1. In this case the Crown has emphasised that I should have a significant concern as to the protection of the community from ongoing offending by the Offender, and that his history of offending, including violent offending, is such a concern it ought find its way into the process as a significant factor. There is much force in this submission. 2. The second aggravating factor is that the offences were committed while the Offender was on conditional liberty in relation to an offence (s 21A(2)(j) of the Act). The offence was reckless wounding and his period of parole was due to expire on 25 September 2022. Mitigating factors 1. The early plea which I have identified is a mitigating factor pursuant to s 21A(3)(k) of the Act. Not only does it entitle him to a 25% discount, it is a fact which I can properly take into account when assessing the questions of contrition, remorse, insight, rehabilitation and likelihood of recidivism. The Offender's subjective case 1. On the sentencing hearing, the Offender gave oral evidence and was cross-examined. There was also tendered in support of his case a certificate from the Salvation Army (Exhibit D) confirming that the Offender has completed the positive lifestyle program conducted by that organisation whilst in custody, a letter of attendance (Exhibit E) from New South Wales Corrections confirming that the Offender has attended a number of courses conducted whilst in custody as part of the "remand addictions program" and a letter from the Offender addressed to me (Exhibit F). 2. There is also a comprehensive report dated 6 September 2023 from a forensic psychologist – Kris North (Exhibit C). 3. When considering the Offender's subjective case, I think appropriate to start with a summary of Ms North's report which facts and opinions I accept. 1. The Offender had a stable family background, however, was beset by behavioural issues consequent upon childhood sexual abuse, which lasted for 2 years between the ages of 12 – 14. 2. This sexual abuse had a number of very marked effects upon this young man: 1. It caused mental issues and trauma; 2. It led to drug issues, commencing with cannabis use at 13, which became a daily habit by 15. He progressed to heroin use, including intravenous use, at 18. Both drugs helped him forget his abuse 3. It stunted his education. He left school in year 10, without obtaining his year 10 certificate. Consequently, his employment has been erratic, mainly in factories and he has been unemployed since 2019 also due to a shoulder injury which occurred whilst in custody 4. Consistent with all those matters he fell into adverse peer groups. 1. He is motivated to rehabilitate and expressed regret and has the support of family members. 2. He relapsed into heroin abuse in late 2021 and also engaged in problematic gambling which led to his purchase of larger quantities of drugs. Nonetheless, he accumulated debt which led to him agreeing to store drugs in exchange for money. 3. Throughout the period of offending, he was using heroin on a daily basis and suffering from symptoms of depression and anxiety. The drugs caused impairments in his judgment reducing his impulse control. His underlying depression and anxiety may have also impaired his executive functioning, including his decision-making abilities and impulse control. 4. At 35, he was abstinent for 2 years, including a residential stint at WHOs, and has had various attempts at rehabilitation programs over the past 10 years. 5. At the time of assessment, he was on Buprenorphine Maintenance Treatment (BMT) and had been on Buvidal for 6 months, since being in custody. He has completed the EQUIPS addiction course in custody. 6. The sexual abuse led to his trauma/mental issues. Research indicates that childhood sexual abuse can impact on individuals psychological and physical health across the lifespan due to the impact of the abuse on neurobiological developments. 7. He has been diagnosed as suffering from: 1. Major Depressive Disorder 2. Generalised Anxiety Disorder 3. PTSD 4. Opiate Use Disorder, in early remission 1. Appropriate treatment is not available in a jail setting. 1. The oral evidence of the Offender was, notwithstanding my initial scepticism having regard to his terrible criminal history, moving and persuasive. 2. I accept that the Offender does feel significant guilt and remorse in relation to the offending the subject of the matters before me, but also his long history of criminal offences. 3. I also appreciate and proceed upon the basis that he has almost certainly expressed similar sentiments to many other judicial officers in support of pleas for leniency in the past. 4. However, I think there has been a significant change in circumstances which lead me to conclude that if the Offender is given a further (almost certainly his last) opportunity to rehabilitate himself and become a constructive member of the community as opposed to the criminal that he currently is, he may well succeed where in the past he has tried and failed. That change is the very belated acknowledgement by him of the sexual abuse he suffered as a child. 5. I don't find it necessary or appropriate to set out the details of those events but I am satisfied that they occurred and caused the Offender significant trauma at the time, that trauma is ongoing and if not the only cause, is a root cause of his current mental health conditions and his addictions. These in turn are the direct cause of his persistent offending. 6. I pause to observe that in my judgment the Offender is not just a heroin addict but also, almost certainly, has an addiction to gambling. The two addictions are probably related to each other, and both need to be treated in my (non-expert) opinion if the Offender is to break free from his current cycle of addiction / crime / prison. 7. Mr Goldsworthy has submitted that the evidence gives rise to considerations raised in cases like Bugmy v The Queen [2012] NSWCCA 223 together with questions of reduced moral culpability which may have contributed to the offending explained in cases like Martin [2015] NSWCCA 6 at [63], Yun v R [2017] NSWCCA 317 and very helpfully by Hamill J in Luque v R [2017] NSWCCA 226. 8. I do not think the Offender's background and upbringing is such as to directly engage the principles stated in Bugmy and cases that have followed it. I am however satisfied that his moral culpability is significantly reduced because of his mental condition. The trauma he has suffered is probably the cause of that condition and of his drug addiction and so it ought not be seen as the consequence of some sort of act of free will, when he originally decided to take drugs. The addiction has then led to his life of crime. Moreover, I am also satisfied that because of his mental health issues and his addiction (which is not an excuse for his conduct but does provide a rational explanation) means that the Offender is not an appropriate vehicle for general deterrence in that he is not an appropriate person to be used for the making of an example to others – R v Engert NSWCCA (20 November 1995 unreported) per Gleeson CJ at [4.4], R v Letteri (Martin John) NSWCCA 18 March 1992 (unreported), Barbieri v R [2016] NSWCCA 295 and DPP v De La Rosa [2010] NSWCCA 194 at 177 and 178. 9. In my judgment at the heart of this sentencing process is the difficult question of the prospects of the Offender becoming drug free. If those prospects are weak, he will almost certainly offend again and so there is a large element of protection of the community to be given significant weight in the process. If those prospects were weak his significant criminal history must deprive him of any expectation of leniency. In my judgment, it is clear that the prospects of the Offender reoffending are directly proportionate to his prospects of being rehabilitated, in the sense of being able to not only come to terms with his childhood trauma, but most critically to become free of his addictions. 10. I accept unreservedly that the Offender genuinely wishes to resolve those issues and is prepared to engage in active steps to succeed. That does not mean that he will succeed but I think his prospects of success are good. 11. His time in prison involved him illicitly obtaining and taking drugs in October 2022, and thereafter commencing on a Buprenorphine treatment plan. It appears to have worked. He commenced that treatment on 10 February 2023, and I am satisfied that since that time not only has not used any illicit drugs, he finds the medication eliminates his cravings for heroin. 12. As is reported in the SARS report: "Since starting this medication, he has not incurred any offences in custody and his behaviour on the wing has been to a high standard. He is employed as a "sweeper", a position given to trusted inmates. He is also involved in the addiction support group in Cessnock remand wing. The Offender intends to remain on Dopot Buprenorphine on release." 1. As I have already recorded, the Offender has also successfully completed a number of rehabilitation courses whilst in gaol. 2. To my mind this is all objective evidence which supports his statements of contrition and remorse. A review of his past treatment history strongly suggests that he has received very little treatment (there was a period of about six months with a psychologist followed by a period in a rehabilitation ward approximately eight years ago). 3. I think that an opportunity to continue along the path he has recently chosen with the insight and acknowledgement of the effect of the trauma he experienced as a child does mean that his prospects of rehabilitation are good, and his chances of reoffending correspondingly low. Comparative cases 1. Mr Goldsworthy has provided me with some helpful tables from the JIRS system which I have taken into account. However, the general caution of the use of such material as a "blunt instrument" in this case is amplified because of the multiplicity of offences being dealt with, together with the significant criminal history of the Offender and his failed treatment attempts to date. Onerous time in custody 1. Because the time he spent in custody has corresponded with the Covid 19 pandemic, I accept the evidence and submissions to the effect that his time in custody has involved a number of periods of effective solitary confinement, which means that it has probably been more onerous than would ordinarily be expected, and I propose to take that matter into account. Resolution 1. In determining the Offender's sentence, I must have regard to the principles in section 3A of the Crimes (Sentencing Procedure) Act 1999. The ultimate objective is to impose a sentence that is "just and appropriate having regard to all the circumstances of the offence and the Offender" – R v Way (2004) 60 NSWLR 168 at [121]. 2. This process has become known as the "instinctive synthesis approach" – Markarian v The Queen (2005) 228 CLR 357 at [31], R v Sharma [2002] NSWCCA 142 and Wong v The Queen (2001) 76 ALJR 76. 3. I have decided that the Offender's subjective case is of such an exceptional nature that notwithstanding the seriousness of the charges and the significant criminal history of the Offender, any sentence ought be towards what might fairly be described as the lenient end, of what can be expected in this sort of case. How to deal with the time in custody 1. As I said at the outset, the Offender has been in custody since 26 July 2022. However, he was on parole at the time, which parole period was scheduled to expire on 25 September 2022. 2. Accordingly, I need to consider whether any term of imprisonment I impose should be taken to commence on 26 July 2022 or rather, as I think the Crown suggests, it should only be related back to 25 September 2022. 3. I understand that this question involves another evaluative weighing up of relevant factors. 4. I can't help but think that the only reason the Offender has been in jail since 26 July 2022 is because he was arrested in relation to these offences. It strikes me as almost inevitable that regardless of his revocation of parole he would have been in custody since that time in any event and accordingly, I have decided that any sentence should be calculated as if it commenced on 26 July 2022. Indicative sentences 1. The indicative sentences that I consider appropriate are as follows: 1. Count 1 (sequence 7): 3 years' imprisonment with a non-parole period of 2 years. 2. Count 2 (sequence 8): 6 months' imprisonment 3. Count 3 (sequence 15): 2 years' imprisonment with a non- parole period of 1.4 years. 4. Count 4 (sequence 16): 3 months' imprisonment 5. Count 5 (sequence 18): 4 years imprisonment with a non- parole period of 3 years. Totality 1. To arrive at an aggregate sentence the principle of totality, including an implicit assessment of notional accumulation and concurrency in the aggregation of indicative sentences, must be given full weight. 2. It is important that in light of what I consider to be one single course of criminal conduct and the prospects of rehabilitation that I have identified to not impose a sentence which is "crushing" on the Offender but on the other hand, public confidence in the administration of justice requires the Court to avoid any suggestion that what is in fact happening is some kind of discount for multiple offending. There is no such discount. What the law does do is analyse whether there is a single course of criminal conduct amounting to a series of separate offences, which should be treated as one event. 3. Ultimately what the Court must do when applying principles of totality and proportionality is to arrive at an aggregation of sentences which is a "just and appropriate" measure of the total criminality involved in their commission: R v Van Ryn [2016] NSWCCA 1 where the Court referred with approval to what Street CJ said in R v Holder; R v Johnson (1983) 3 NSWLR 245 at 260 and what Howie J said in Cahyadi v R (2007) 168 A Crim R 41. 4. In all the circumstances I think the series of offences before me all form part of a single period of criminality, which is all explained (although not excused) by the Offender's rampant heroin addiction at the time. Starting point / 25% discount 1. Taking into account all the matters I have mentioned, but in particular the fact that I am satisfied that the Offender has a real determination to rehabilitate himself, and that there is a good prospect, albeit no certainty, that he will be successful, I have decided as a starting point an aggregate sentence in relation to all of the offences of 5 years' imprisonment. From this there is to be a deduction of 25% for the early pleas of guilty. Calculation 1. There needs to be a period of accumulation, but in my judgment, not a great one which is why I have decided that the aggregate sentence ought be 5 years. 2. From that there must be deducted 25% for the early plea which reduces the sentence to 3 years and 9 months. 3. Rounding the time served in custody to 14 months and adopting the approach approved in Mandranis v R [2021] NSWCCA 97 ([61] – [63]) instead of ordering that the sentence commence from the earlier date, I propose to deduct from 3 years and 9 months, 14 months, which reduces the sentence to 2 years and 7 months. 4. For those reasons I have concluded that an aggregate head sentence of 2 years and 7 months' imprisonment to commence today is appropriate. Is an Intensive Corrections Order appropriate? 1. In determining whether to make an ICO, community safety is the paramount consideration. When considering community safety, the Court must assess whether an ICO or full-time detention is more likely to address the Offender's risk of reoffending – s 66; Stanley v DPP [2023] HCA 3 and Zheng v R [2023] NSWCCA 64. 2. I note that an ICO must commence on the date it is made and when making an ICO, the Court is required to impose the standard conditions and at least one additional condition (unless there are exceptional circumstances) and may impose further conditions where necessary (see s 73, 73A, 73B of the Act). 3. The question boils down to whether an ICO with conditions for treatment or full-time detention of the Offender is more likely to address the Offender's risk of reoffending, as is explained in Zheng. I have come to the conclusion that in this case, it is clear that the Offender's chances of reoffending will be less, and thus community safety enhanced, if he undertakes treatment in the community as opposed to full-time incarceration. 4. I have therefore decided to order that the term of imprisonment be served by him in the community, pursuant to an Intensive Corrections Order. Conclusion and Orders 1. In conclusion I have decided to make the following orders: 1. The Offender is convicted of the offences for which he has pleaded guilty, and I have taken into account the matters the subject of the form 1. 2. Taking into account the discount for the plea of guilty of 25%, the matters in the form 1 and 14 months which the Offender has already spent in custody (which I have taken into account in line with the principles in Mandranis v R), I impose an aggregate term of imprisonment of 2 years and 7 months, to commence today. 3. I order that sentence to be served by way of an Intensive Corrections Order commencing today upon the following conditions: 1. that the Offender not commit any offence; 2. that the Offender submit to supervision by a Community Corrections officer as outlined in the report of Michael Cooper dated 18 October 2023; 3. that the Offender contact Mr Cooper or another officer corrections at the Community Corrections office at Cessnock, within seven days of today's date by telephone to receive instructions about his obligations; 4. that the Offender refrain from taking any restricted or prohibited drugs other than those prescribed by a medical practitioner; 5. that the Offender, as soon as possible, commences treatment with a qualified psychologist as approved by his Community Corrections officer from time to time commencing with weekly sessions to be varied only with the written permission of his Community Corrections officer; 6. that the Offender attend at least 3 times a week meetings of Narcotics Anonymous and Gamblers Anonymous. To be clear, that is a total of at least six meetings per week; 7. that the Offender is only to attend less than the six meetings per week if prevented to do so by ill health or with the express written permission of his Corrections officer; 8. that the Offender undertake such further treatment as advised by his treating psychologist and/or his Community Corrections officer; 9. that the Offender is to continue on his current depot buprenorphine treatment. 1. I note that Sequences 13 and 14 are now to be withdrawn. 2. I make an order that the amount of $19,395 confiscated by the police from the Offender's home be forfeited to the Crown. 3. I order the immediate release from custody of the Offender. Explanation of consequences of breach of conditions 1. The Offender needs to clearly understand that he is the recipient of what many would consider a lenient sentence. 2. The only reason he is not serving his sentence in full-time imprisonment is because I have decided that there are better prospects of him being rehabilitated if he serves that sentence in the community pursuant to an ICO on the terms and conditions that I have set out. 3. Those conditions are an essential part of my reasons. The Offender needs to understand that many will consider he is already well past what can fairly be described as his last chance. If any of the conditions I have imposed are breached, the Offender ought expect that he will be immediately incarcerated, for the balance of the term of imprisonment, and thereafter should not expect to be treated leniently again by either the Courts or the Parole Board. ********** 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: 03 November 2023