District Court New South Wales Medium Neutral Citation: R v BEAVER [2023] NSWDC 578 Hearing dates: 29 November 2023 Date of orders: 20 December 2023 Decision date: 20 December 2023 Jurisdiction: Criminal Before: Lerve DCJ Decision: Sentenced – see paragraphs [76]-[80] Catchwords: Sentence – reckless infliction of grievous bodily harm – loss of sight in one eye - submission that sentence be served by ICO – recent apparent conflict in authorities as to how to deal with pre-sentence custody Legislation Cited: Crimes Act, 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v The Queen [2013] HCA 37 Chan v R [2023] NSWCCA 206 DG v R (No 1) [2023] NSWCCA 320 Mandranis v R [2021] NSWCCA 97 McCullough v R [2009] NSWCCA 94 Morris v R [2023] NSWCCA 228 Pound v R [2015] NSWCCA 54 R v Mitchell & Gallagher (2007) 177 A Crim R 94 R v Tuala [2015] NSWCCA 8 Stanley v DPP [2023] HCA 3 Zheng v R [2023] NSWCCA 64 Category: Sentence Parties: Rex Trent BEAVER Representation: Counsel: Mr D Mulligan for the Offender Solicitors: Ms G Knight, Office of the Director of Public Prosecutions Legal Aid Commission of NSW File Number(s): 2022/326257 Publication restriction: No REMARKS ON SENTENCE 1. The offender pleaded guilty before a Magistrate at the Wagga Wagga Local Court on 16 August 2023 to one charge, namely that he: On 21 October 2022 at Narrandera in the State of New South Wales did cause grievous bodily harm to Michael Lyons and was reckless as to causing actual bodily harm to Michael Lyons, contrary to s 35(2) of the Crimes Act, 1900. 1. The plea of guilty was adhered to at the sentence hearing at the Wagga Wagga District Court on 29 November 2023 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty. 2. The maximum penalty for the offence for which the offender appears for sentence is 10 years imprisonment. Parliament has specified a standard non-parole period of 4 years in respect of the offence. Facts 1. The facts are before the court by way of a set of agreed facts. The offender and Tyeisha Williams had been in a relationship at the time of the offending. The victim, Michael Lyons was 52 years of age at the relevant time and is a cousin of Williams. The victim and Williams had had some type of falling out over an alleged theft of an electric bike 18 months or so before the incident on 21 October 2022, the falling out causing ongoing animosity between them. 2. As a result of a phone call from another cousin, the victim went to the address at 11 Mount Street, Narrandera where he saw the offender and Tyeisha Williams in the front yard. The victim gave a cousin a lift home and returned to the 11 Mount Street premises. The victim made a comment to Williams about stealing his bike. 3. A verbal argument began between this offender and the victim about the victim's comments to Williams. Various persons at the address went into the front yard anticipating some type of confrontation. The victim walked outside. The offender said to the victim, "Come and fight me for disrespecting my woman". 4. A physical fight between the victim and the offender began with punches being thrown by both parties. Both men fell to the ground. A short video of the events was shown. The video is contained within the Crown tender bundle. I am not able to find who was responsible for them being on the ground. Indeed, it may well have been the inertia of the men moving around that put them to the ground. While the two men were on the ground Williams approached and commenced kicking the victim while he was on the ground. 5. The victim then felt the fingers of this offender pressed into his right eye while he was on top of the offender. This caused significant pain. The victim could also feel himself being punched and kicked by Williams. 6. The offender moved to his knees and continued to punch the victim to the side of his head. Williams again kicked the victim before being dragged away by one of the people present. The victim moved to being on all fours with his arms covering his head. He yelled for the offender to stop but the offender continued to punch the victim. 7. The video clearly shows that towards the end of the incident the offender very much had the upper hand. The attack was relatively sustained and was violent. 8. After the incident the victim went to his daughter's home and thereafter presented at the Narrandera District Hospital with severe pain and swelling to his right eye. He was transferred to the Wagga Wagga Base Hospital. He was diagnosed with a ruptured globe, being a ruptured eyeball. The victim underwent surgery which saved the structure of the eyeball. He was later transferred to the Sydney Eye Hospital. 9. Dr John Downie made the following assessment of the injuries: 1. Rupture of the sclera (tough white wall of the eye) known as a globe structure; 2. Significant subconjunctival haemorrhage and swelling; 3. A total hyphema (blood completely filling the anterior chamber of the eye); 4. Dense vitreous haemorrhage (blood completely filling the posterior chamber of the eye); 5. Loss of iris and lens and retinal detachment that could not be repaired; and 6. Blindness in the right eye with no prospect of regaining vision in the right eye. 1. The victim also suffered swelling and bruising to the right side of the face as a result of the kicks to the head. 2. Police went to 11 Mount Street Narrandera at about 11.15pm on 21 October 2022 and people spoken to denied seeing or hearing any physical fight. However, on 23 October 2022 the victim's daughter contacted police and she provided a video of the incident that she had been sent. A warrant was subsequently issued for the arrest of the offender. He was taken into custody on 8 November 2022 and has been in custody since. Assessment 1. In written submissions the Crown referred to the decision of Pound v R [2015] NSWCCA 54. The facts (at [10]-[11]) in that matter are entirely different in that the offending involved the production of a loaded pistol and the non-intentional discharge of that firearm. The projectile struck the victim in the left eye, causing the loss of that eye. The sentencing judge found that there was a high degree of recklessness – see [38]-[43]. 2. The extent of the recklessness of this offender was an issue at the sentence hearing. The offender deliberately placed his fingers at the right eye of the victim in the course of a physical fight and applied sufficient force to cause the damage to the eye, resulting in loss of sight in that eye. The degree of recklessness is less than that in Pound but neither is the recklessness of the offender in the matter presently under consideration slight. There is a continuum of degrees of recklessness. The recklessness in the matter presently under consideration is greater than slight by some real margin but cannot be described as high. 3. Offences such as the one presently under consideration are generally result offences, i.e. the more serious the injury, generally the more objectively serious the matter will be. The nature and general circumstances of the assault are also relevant in determining the seriousness of the matter – see R v Mitchell & Gallagher (2007) 177 A Crim R 94 at [27] and McCullough v R [2009] NSWCCA 94. 4. There is a very wide range of injuries contemplated by grievous bodily harm. In the matter presently under consideration the grievous bodily harm is the permanent loss of sight in one eye. I am satisfied beyond reasonable doubt that the offender deliberately placed his fingers at the eye of the victim and applied force. That force was sufficient to cause the damage that it did. In all of the circumstances I am of the opinion that the matter is within the mid-range of seriousness. Criminal History 1. The offender was born on 15 October 1981 and accordingly is 42 years of age and was 41 at the time of the offending. He has a number of convictions for violence including domestic violence assaults, Assault Occasioning Actual Bodily Harm in company, and Stalk Intimidate. He was dealt with on indictment in 2016 for Assault with Intent to Rob causing wounding or Grievous Bodily Harm. He was sentenced to a total sentence of 4 years with a non-parole period of 2 years. In 2018 he was convicted of Assault Occasioning Actual Bodily Harm and sentenced to imprisonment to be served by way of intensive correction order. He has also been convicted of serious driving offences including Drive in a Manner Dangerous in a Police Pursuit and Drive While Disqualified. In these circumstances the record of the offender is such that he is not entitled to any particular leniency. Victim impact statement 1. A short victim impact statement is exhibit B on sentence. The continuing effects on the victim are set out in that statement and include that he does not drive any more, he has not been able to work, he is regularly taking analgesics and suffers embarrassment as a result of his appearance. 2. It is not submitted by the Crown that the contents of the victim impact statement go to establish any factor of aggravation. However, the effect of the crime on the victim is a matter that is taken into account in the process of the instinctive synthesis in determining the appropriate sentence pursuant to s 3A(g) of the Crimes (Sentencing Procedure) Act. 3. However, I note the decision of R v Tuala [2015] NSWCCA 8 and the limitation on the use of the victim impact statement. Subjective case 1. The offender gave evidence at the sentence hearing and a volume of written material was tendered on his behalf. I will initially go the evidence of the offender. 2. He accepted that the report of Dr Sidhu had been read to him. He continued that he had been honest with Dr Sidhu in providing his history and background. I will of course, return to that report. 3. Mr Mulligan, counsel for the offender, asked him how he felt after hearing the victim impact statement. The offender said that he was sorry and that he was mortified that he had caused that injury to the victim. He said he was sorry for what had happened and he realises that fighting does not help anyone. Further the offender recognised the seriousness of the injuries sustained by the victim to Dr Sidhu and the offender told Dr Sidhu that "he regrets it daily". Dr Sidhu opines that the offender's remorse is genuine. Clearly, the offender is entitled to a finding that he is remorseful. 4. The evidence continued that since being in custody on this occasion he realised that violence does not help anyone, that violence is not good and that someone usually gets injured. He accepted that he has had community-based sentences in the past. He maintained that things will be different this time because he has come to realise the effects of his drug and alcohol use. As I understood his evidence, he also said that when he is released he will avoid drugs and the "wrong people". 5. Further, he has completed the EQUIPS course in custody and through that course found what chemicals are contained within ice (meth amphetamine) and the effect of that substance on the human body and the human brain. He has been working in custody and holds the position of head sweeper. He intends to go to NA (Narcotics Anonymous) upon his release. He intends to live with his partner Rochelle and two children in Wagga Wagga. He maintained that he is very positive that he will have nothing to do with drugs upon release. 6. Dr Sidhu at paragraph 13 of his report sets out that the offender gave an account of being sexually abused by a priest. The abuse occurred when he was in Grade 2 or 3 when he was an Altar Boy. In his evidence the offender gave details of the abuse which included attempted anal penetration and fellatio. He had not told anyone of this abuse until this year. 7. The offender said that he wishes to better himself and he accepts he will need counselling to deal with the long-term effects of the abuse he suffered as a child. As I understood his evidence, he said he turned to drugs and to alcohol to help him cope with the effects of the abuse. 8. Mr Mulligan's ultimate submission was that the court would impose a sentence that could and should be served by way of intensive correction order. The offender said that if he is given that opportunity he would like to demonstrate to the court by getting counselling and trying to rectify what has happened in the past and that things are going to be "100% better". 9. The offender was cross-examined and accepted that he had had the benefit of supervised orders before. It seems however from the evidence that the offender gave the courses available to him while on parole were very limited. 10. I now turn to other aspects of the report of Dr Sidhu. I raised with the parties one aspect of that report that causes me considerable concern. It was tolerably plain from the reaction of both counsel that neither were alert to this particular issue. Paragraph 21 of the report Dr Sidhu sets out "Mr Beaver reported that he first began using drugs at 29 years old and denied any use prior to this including experimentally as a teenager. He stated that he was introduced to crystal methamphetamine or ice through a former friend of his and quickly became addicted to the drug." However, towards the end of paragraph 39 of the report Dr Sidhu says, "furthermore, the impact of drug use from such an early age likely impacted his brain development, that was already vulnerable on account of the early experiences of trauma. Therefore his ability to manage higher order processes such as judgement planning and consequential thinking was impacted and presented in his poor adaptive coping skills". At the end of paragraph 14 of the report Dr Sidhu notes "he used drugs from an early age to cope with his distress and reported that he believes his early years shape the trajectory of his life significantly." 11. First using drugs at the age of 29 cannot be reconciled with the other parts of the report to which I referred in the paragraph immediately above. One of the concerns I have is that the author of the report may have conflated the contents of interviews with two separate people. Another concern I have is whether I can absolutely rely on other aspects of the report. Counsel for the offender invited me to ignore the contents of paragraph 39 of the report. With some real misgivings I will adopt this approach. Yet another concern, noting the reaction of both counsel at the sentence hearing, is how closely counsel read the reports that are tendered. Further, I am left wondering how thoroughly the authors of these reports read them before sending them out. 12. Going now to the other contents of the report at paragraph 10 it is set out that the offender's parents separated when he was four years of age, he was exposed to domestic violence largely on account of his father's alcohol abuse. The offender described that his father was aggressive and violent when he was inebriated and directed physical abuse to both the offender's mother and to the offender. 13. When the offender was about seven years of age his mother re-partnered and although his mother's new partner was not violent towards his mother, he "targeted" the offender which included physical abuse towards him. Despite this the offender reported a positive attachment to his mother. 14. The report goes on (paragraph 12) to set out that the offender's mother was not employed and her partner worked part-time as a shearer and there were periods of food poverty. The family lived in social housing and he was exposed to violence, crime and drug use within the community from an early age. The report then goes on to set out the sexual abuse to which mention has already been made. At paragraph 14 of the report it is set out that the offender described his childhood as difficult and that he felt worthless and unsafe. 15. Further, the offender attended five different primary schools on account of the family moving frequently. The experience caused significant upheaval and this impacted on his ability to concentrate in class. He described himself as a disruptive pupil in the classroom and reported that he was involved in a number of fights with his peers at school. He attended high school but "wasn't focused." 16. Given these factors including the abuse the offender suffered as a child, the issues relating to his education and the exposure to alcoholism the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened to a substantial extent, reducing the offender's moral culpability accordingly. 17. The offender has a limited employment history with him generally holding positions as part-time and casual roles over his working life. He apparently enjoyed working in landscaping. He reported as being reliant on social welfare for most of his adult life and intends to work in the future. 18. Although it seems the offender began using drugs at 29 years of age, he abused alcohol quite considerably from ages to 20 to 25. The offender was inebriated at the time of the offending presently under consideration. The offender recognised that this impacted his behaviour, he was not making good decisions, and was more aggressive due to being intoxicated. It seems (paragraph 22 of the report) that the offender was also drug affected at the time of the offending and that he was not "thinking rationally or considering the consequences of his behaviour." The offender also reported difficulties with gambling. 19. Dr Sidhu opines (paragraph 37) that the offender did not develop important skills in emotional regulation or have significant positive templates to learn how to manage his stressors. Further, Dr Sidhu opines (paragraph 39) that the offender developed the view from a young age that violence was everywhere and also a viable means to resolve conflict as this was normalised. 20. At paragraph 44 of the report Dr Sidhu recommends that the offender would benefit from referral to the Real Understanding of Self-Help (RUSH) program, which is a forensic adaption of DBT and available to him in custodial settings. It is also recommended the offender could benefit from post-sentence treatment at the Wayback program. 21. Given the criminal history and in particular the number of matters of violence on that record, taken with the offending presently under consideration, I am not able to find on balance that the offender is unlikely to reoffend. The number of matters of violence on the offender's record also, to my mind, raises real concerns about the issue of public safety so far as Mr Mulligan's primary submission as to the outcome of this matter is concerned. 22. Clearly, the offender has greater insight into the effects of violence but, moreover, the role his past has played. It seems that the offender has a supportive partner and I accept he was genuine when he said to the court at the sentence hearing that he intends to obtain employment upon his release. While those factors are certainly very positive indicators, I am prepared to find the offender's prospects of rehabilitation are reasonable. I am not prepared to find on balance that he has good prospects of rehabilitation. Much will depend upon the manner and extent to which the offender engages with the relevant authorities and agencies upon his release from custody. 23. Appropriately, the Crown did not take issue with the submission advanced on behalf of the offender that he is entitled to a finding a special circumstances. The contents of the report of Dr Sidhu entitle the offender to a finding of special circumstances. The offender will need relatively intensive and extensive supervision to ensure his proper reintegration into the community but moreover to ensure he gets the appropriate treatment and counselling for alcohol and substance abuse counselling for the trauma he experienced as a child. 24. The letter written by the offender which is part of Exhibit 1 on sentence confirms his expression of remorse, the fact that he has gained insight into his offending and his determination to change his life upon release. I have already found that the offender is entitled to a finding that he is remorseful. 25. Rochelle Barton, the partner of the offender, has also provided a letter. She too confirms the remorse by the offender and maintained that his time in custody has had a positive impact. She also speaks of the insight gained by the offender into the causes of his offending. She confirms they plan to live together upon the offender's release from custody. General Remarks 1. In passing sentence I will need to have regard to and give proper effect to ss 3A and 5(1) of the Crimes (Sentencing Procedure) Act 1999. Section 3A sets out the purposes of punishment, namely: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 1. Section 5(1) of the Act provides: A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. 1. In all of the circumstances I am of the opinion that the appropriate starting point for the sentence is one of 4 years and 6 months. With the deduction of 25% for the utilitarian value of the plea the total sentence is 3 years and 4 months (i.e. 40 months), after some mathematical rounding down in favour of the offender. For reasons already set out there should be a finding of special circumstances. 2. Mr Mulligan, counsel for the offender, did not take issue with the fact that the threshold within s 5 of the Crimes (Sentencing Procedure) Act was crossed. His primary submission was that given the time the offender has spent in custody on remand awaiting sentence and applying what was said by Simpson JA in Mandranis v R [2021] NSWCCA 97 at [61] (arriving at the appropriate sentence and deducting the period spent on remand) the sentence would be 2 years or less and the court would order that the sentence be served by way of Intensive Correction Order. I observe that since Stanley v DPP [2023] HCA 3 it has essentially become the default submission in respect of many matters where the sentence might come within what is able to be served by way of Intensive Correction Order. 3. In the matter presently under consideration I have concluded that given the offending, but moreover the result of the offending, the sentence will exceed what can be served by way of ICO even if the exercise suggested by Simpson JA in Mandranis is followed. However, recently the Court of Criminal Appeal handed down the decision of DG v R (No. 1) [2023] NSWCCA 320 where the course suggested in Mandranis was on one view, disapproved. In DG v R (No. 1) the Court (Wilson, Fagan & Sweeney JJ) said at [22]: "…Having now to decide the matter, it is our view that where an aggregate sentence of more than 3 years is considered appropriate and the offender has served some presentence custody it would be an impermissible exercise of the sentencing discretion to reduce the term to 3 years or less, with a commencement date that is not backdated for the purpose of satisfying s. 68(3) and facilitating an order that the shortened sentence be served by way of an ICO". 1. Following the decision of DG v R (No 1) there is on one view conflicting authority as to whether the course proposed by Simpson JA in Mandranis is permissible. In DG v R (No 1) in a joint judgment Wilson, Fagan & Sweeney JJ said at [14]-[17]: "In Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 Gageler J (as the Chief Justice then was) made the following observations at [30]: '[30] The Court of Criminal Appeal of the Supreme Court of New South Wales has held, repeatedly and correctly, that whether an offender is to be sentenced to a term of imprisonment, and (if so) for what term, are questions to be asked and answered within the scheme of the Crimes (Sentencing Procedure) Act before any question can arise as to whether or not to make an ICO and (if so) on what conditions [citing Mandranis v R at [22]- [26]; R v Zamagias and R v Fangaloka [2019] NSWCCA 173 at [44]- [45]].' Although his Honour was in the minority concerning the issue of jurisdictional error upon which the appeal turned, the authority of the above statement is not diminished. In the joint judgment of Gordon, Edelman, Steward and Gleeson JJ a statement to similar effect was made, as follows: '[59] There are three steps to be undertaken by a sentencing court prior to the final order by which a sentence of imprisonment is imposed under the Sentencing Procedure Act, or confirmed or varied on a sentencing appeal: first, a determination that the threshold in s 5(1), described below, is met; second, determination of the appropriate term of the sentence of imprisonment; and third, where the issue arises, consideration of whether or not to make an ICO [citing R v Zamagias; R v Fangaloka; Wany v DPP (2020) 103 NSWLR 620; [2020] NSWCA 318 at 625/[17]].' Jagot J, also in the minority, recognised the same principles: '[205] Characterising s 66(2) as a jurisdictional pre‑condition to any sentencing function is also difficult to reconcile with long‑established authority in New South Wales, not challenged by the appellant, about the process for making such an order. For example, it has been said that it "would be wrong to start with an intention to make an ICO and then to select the sentence in order to bring it within s 68 and activate s 7. A principled approach requires that the term of the sentence be first determined. If, and only if, that sentence (if an aggregate one) does not exceed 3 years (ie, is 3 years or less) or 2 years (for a single offence) consideration may be given to ordering that it be served by way of an ICO" [Mandranis v R at [35] and [65]]. This accords with the fact that an intensive correction order involves a subsequent and separate consideration within the jurisdiction of the sentencing court.' In Zheng v R [2023] NSWCCA 64 at [270]-[272], Gleeson JA (Hamill and Ierace JJ agreeing) again endorsed the sequence of considerations, as follows: 'The determination of the appropriate term of the sentence of imprisonment to be imposed is to be made without regard to, and cannot be adjusted to reflect, the manner in which the sentence is to be served.'" 1. Their honours went on to say at [20]-[21]: It is a settled practice that where a period on remand is referable to the offence for which sentence is to be passed, credit for the time served should be given by backdating pursuant to ss 24(a) and 47(3) of the Crimes (Sentencing Procedure) Act, not by shortening the term with commencement on the date of sentencing. The seminal decision on that subject is R v McHugh (1985) 1 NSWLR 588, where the Court said this (at 590-591): There is, however, one aspect in which, in our view, this Court should intervene. That is to adjust the sentence and the non-parole period commencement dates, so as to take into account the period of pre-sentence custody. His Honour expressly said that he took the period of pre-sentence custody into account, and he passed a sentence of some two years less than he regarded as appropriate. It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which sentence is being passed, the commencement of the sentence (and the non-parole or non-probation period) should be back-dated for an equivalent period. This is to be preferred to a process of assessing the proper sentence (and non-parole or non-probation period) and allowing, as it were, a discount in consequence of the pre-sentence custody. The desirable practice will promote the accuracy of the record, preventing there being a hidden factor affecting the length of the custody involved in consequence of the sentencing order. In addition, this practice will remove inequalities and unfairnesses as between prisoners arising from delays prior to sentencing […]. A judge departing from this practice could be expected to indicate his reason for so doing. In the present case, it was his Honour's intention that the appellant should be held in custody in all for ten years as a head sentence, and for five years as a non-parole period. He deducted two years from these two terms and passed a sentence and specified the non-parole period that has been mentioned. We regard it as appropriate to adjust this order by increasing the sentence and the non-parole period to ten years and five years respectively, but to order that they commence to run on 14 May 1982, thus giving to the appellant the express benefit of the two years and ten days of pre-sentence custody. The practice was reaffirmed in Eldridge v R [2011] NSWCCA 144 at [32]-[34] where Hoeben J (as his Honour then was) cited R v McHugh and a number of intervening decisions that had restated the point. If this practice had been departed from in the present case, as the applicant submits should have occurred, her Honour would have to have imposed a sentence of 2 years and 6 months commencing on 6 April 2023, so that with the year already served on remand the applicant would have been either actually in custody or subject to an order for his imprisonment for a total of 3 years and 6 months, being the duration that the sentencing judge considered warranted. If the learned judge had taken that course she would have failed to formalise, in an order of the Court, her conclusion as to the term that was called for in all the circumstances of the case. That would not merely confound the collection of statistics about sentencing, it would involve a lack of transparency and misrepresentation in the court's record. 1. I had my Associate draw the decision of DG v R (No 1) to the parties. In supplementary written submissions Mr Mulligan argues in effect that the approach in Mandranis is to be preferred relying on the decisions in Zheng v R [2023] NSWCCA 64, Chan v R [2023] NSWCCA 206 at [161] and Morris v R [2023] NSWCCA 228 at [39]. Both parties were given the opportunity to make further submissions. Both parties provided supplementary written and oral submissions. 2. I made it clear to Mr Mulligan that I did not want to give him or his client any false hope of optimism, but rather I was merely extending the opportunity to make further submissions in light of the decision of DG v R (No 1). 3. It seems that this apparent conflict in the authorities will need to be resolved. I merely observe that the existence of that apparent conflict makes the task of sentencing judges more difficult in that a decision has to be made as to which of the apparently conflicting authorities should be followed. 4. The Crown's position in supplementary written submissions is that I should follow the course suggested by Wilson, Fagan & Sweeney in DG v R (No 1). I understood the Crown's primary position in the further oral submissions was that given the criminality and the result of the offending the court would not get to the point where even if the "Mandranis" approach was adopted the sentence would still exceed what could be served by way of ICO. 5. Mr Mulligan's written submissions, at least as I understand them, puts that the preponderance of authority is such that I should not follow the Court of Criminal Appeal in DG v R (No 1). In supplementary oral submissions I understood Mr Mulligan to submit that if I concluded that there was controversy or conflict between the authorities, I was not bound to follow DG v R (No. 1). 6. Further, Mr Mulligan put in supplementary oral submissions that the court is required to take pre- sentence custody into account in more than one way. He addressed on the interaction between sections 24A and 47(2) of the Sentencing Act. Further, that a strict application of DG v R (No 1) has the effect of fettering the courts discretion as to how to take pre-sentence custody into account. Thirdly, Mr Mulligan put, relying on the decision of Pullitano v R [2010] NSWCCA 45 that there is authority for the proposition that pre-sentence custody can be taken into account at the second and third stages of the "three step process" endorsed by the decision of Zamagias v R [2002] NSWCCA 17 at [24]-[26]. 7. That very brief summary does not go anywhere near doing justice to the very well thought out and developed submissions by Mr Mulligan, who I thank for going to the trouble that he did to assist the court. 8. While I have determined that the sentence to be imposed is such that it cannot be served by way of ICO even if the approach in Mandranis is followed, I will for the sake of completeness, nevertheless go through the exercise of making a determination. 9. Initially I note the provisions of s 17D of the Crimes (Sentencing Procedure) Act, which relevantly provides: (1) The sentencing court must not make an intensive correction order in respect of an offender unless it has obtained a relevant assessment report in relation to the offender. (1A) However, the sentencing court is not required to obtain an assessment report (except if required under subsection (2) or (4)) if it is satisfied that there is sufficient information before it to justify the making of an intensive correction order without obtaining an assessment report. (2) The sentencing court must not impose a home detention condition on an intensive correction order unless it has obtained an assessment report relating to the imposition of such a condition in relation to the offender. (3) The sentencing court must not request an assessment report relating to the imposition of a home detention condition on an intensive correction order unless it has imposed a sentence of imprisonment on the offender for a specified term. (4) The sentencing court must not impose a community service work condition on an intensive correction order or community correction order unless it has obtained an assessment report relating to the imposition of such a condition in relation to the offender. (5) The assessment reports referred to in this section may be in the 1 report or in more than 1 report. 1. There is no Sentencing Assessment Report available. Given the record of the offender, particularly noting that he had the benefit of an ICO for a matter of violence in 2018 (while he was on parole) I am not of the opinion that there sufficient information to overcome s 17D(1A) of the Sentencing Act. In particular there is no information as to the offender's attitude to supervision on previous occasions. The absence of a SAR was mentioned to the parties when the matter was briefly before the court on 15 December 2023. 2. Relevantly, s 66 of the Crimes (Sentencing Procedure) Act provides: Community safety and other considerations (1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. (2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. (3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant. 1. Section 66 of the Crimes (Sentencing Procedure) Act was subject to a great deal of litigation in the Court of Criminal Appeal leading up to the decision of the High Court in Stanley v DPP. In that decision the plurality (Gordon, Edelman, Steward, and Gleeson JJ) said (footnotes omitted) at [72]-[77]: "There was no dispute before this Court that s 66 imposes specific mandatory considerations upon the decision maker to make, or refuse to make, an ICO. Section 66(1) requires the court to treat community safety as the "paramount consideration". In the context of s 66(2), community safety principally concerns the possible harms to the community that might occur in the future from the risk of reoffending by the offender. The issue is not merely the offender's risk of reoffending, but the narrower risk of reoffending in a manner that may adversely affect community safety. [73] The identification of community safety in s 66(1) as the "paramount" consideration also indicates that s 66 is concerned with an aspect of the sentencing task that requires the sentencing court to have a particular and different focus at the third stage of the three-step process described earlier. When the court is deciding the discrete question whether or not to make an ICO, community safety is the consideration to which other considerations are to be subordinated, although other considerations must or may be taken into account as prescribed by s 66(3). [74] Section 66(2) explains how the sentencing court must engage with the paramount consideration of community safety. For the purpose of addressing community safety, s 66(2) requires the sentencing court to undertake a task of assessing the possible impacts of an ICO or full-time detention on the offender's risk of reoffending. Section 66(2) gives effect to Parliament's recognition that, in some cases, community safety will be better promoted by a term of imprisonment served in the community than by full-time detention. Section 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety. Thus, s 66(2) requires the sentencing court to look forward to the future possible impacts of the sentence of imprisonment, depending upon whether the sentence is served by way of full-time detention or by way of intensive correction in the community. [75] The assessment required by s 66(2) is not determinative of whether an ICO may or should be made. To the contrary, as is plain from s 66(3), the assessment is required for the purpose of addressing community safety as the paramount, but not the sole, consideration in deciding whether or not to make an ICO. Thus, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). In that respect, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending. [76] That said, community safety will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive. There may be cases where a court cannot be satisfied whether serving a sentence by way of intensive correction in the community or serving a sentence in full-time custody would be more likely to address reoffending. In those cases, other factors will assume significance and will be determinative. On the other hand, there will be cases where a court concludes that serving the sentence by way of intensive correction in the community is more likely to address reoffending. [77] While aspects of community safety underpin some of the general purposes of sentencing, such as specific and general deterrence and protection of the community from the offender, those aspects will have been considered in deciding whether to impose a sentence of imprisonment (ie, before considering an ICO). Community safety is required to be considered again and in a different manner under s 66 when considering whether to make an ICO. At this third step, community safety in s 66(1) is given its principal content by s 66(2), namely, the safety of the community from harms that might result if the offender reoffends, whether while serving the term of imprisonment that has been imposed or after serving that term of imprisonment." 1. Since Stanley v DPP there have been two decisions in the New South Wales Court of Criminal Appeal, namely Zheng v R [2023] NSWCCA 64 and Tonga, Samuel v R [2023] NSWCCA 120. 2. In Zheng v R Gleeson JA (Hamill & Ierace JJ agreeing) said at [281]-[286]: "Five points emerge from the joint judgment in Stanley. [282] First, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). The issue is not merely the offender's risk of reoffending, but the narrower risk of reoffending in a manner that may affect community safety: at [72], [75]. [283] Second, s 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety: at [74]. [284] Third, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending: at [75]. [285] Fourth, the consideration of community safety required by s 66(2) is to be undertaken in a forward-looking manner having regard to the offender's risk of reoffending: at [74]. [286] Fifth, while community safety is not the sole consideration in the decision to make, or refuse to make, an ICO, it will usually have a decisive effect unless the evidence is inconclusive: at [76]." 1. Section 66(1) provides that community safety is paramount. I have particular concerns about community safety given the offender's record particularly for matters of violence. The concern for community safety is heightened when the issue of the offending while under the influence of substances is considered. I cannot be satisfied that the offender is unlikely to reoffend. I note in particular that the offender has had the benefit of an Intensive Correction Order for a matter of violence. The determination required by s 66(1) is made adversely to the offender. 2. Further, so far as s 66(2) of the Sentencing Act is concerned noting the criminal history of the offender, and in particular the matters of violence and the fact that the offender had the benefit of an ICO for a matter of violence in 2018 I am firmly of the opinion that full time detention will more appropriately deal with the issue of the risk of re-offending. The determination to be made pursuant to s 66(2) is again made adversely to the offender. 3. I am fortified in these findings by noting that on 5 May 2014 the offender was sentenced to a total of 4 years with a non-parole period of 2 years for the offence of Assault with Intent to Rob cause Wounding or Grievous Bodily Harm. That sentence dated from 19 September 2014 and expired on 18 September 2018. Therefore, the offender was subject to that parole at the time of the commission of the Assault Occasioning Actual Bodily Harm on 24 June 2018. 4. Although the matters set out in s 66(3) are subordinate to community safety, they are still relevant to the sentencing exercise. I observe that s 3A(a) of the Crimes (Sentencing Procedure) Act provides that one of the purposes of punishment is to ensure that the offender is adequately punished for the offence. On one view that purpose of punishment (that there is an adequate punishment) is subordinate to the issue of public safety and the likelihood of the offender offending in a similar way. I do not understand the present state of the law to be that an Intensive Correction Order must be imposed rather than full time detention where the sentence is one that is able to be served by way of Intensive Correction Order. Perhaps it is time for the legislature to revisit the legislation relating to ICOs. 5. I note and have regard to the reasons of the plurality in Stanley v DPP at [72]-[78]. I also note and have regard to the decision of the Court of Criminal Appeal in Zheng v R [2023] NSWCCA 64 at [281]-[286]. As I have previously observed, the court's "forward looking approach" (see Zheng at [285]) must at least to some extent be informed by the past. Further, at the risk of repetition, the offending and the result of the offending must surely have some work to do within the sentencing exercise. 6. Again for more abundant caution while at the sentence hearing counsel specifically abandoned the suggestion that the offender had been using drugs from an early age, even if it were the case that he had been using drugs from an early age, noting my findings in respect of what have become known in shorthand terms as the "Bugmy factors" the impact on sentence would be minimal, and certainly not sufficient to get the sentence to where, even if the approach urged by counsel for offender were adopted, it could be served by ICO. 7. The period spent in custody on remand is taken into account in the usual way by way of back dating of the sentence. Orders 1. In respect of the matter to which the offender has pleaded guilty he is convicted. 2. The offender is sentenced to a non-parole period of 2 years 1 month (25 months) to date from 8 November 2022 and which will expire on 7 December 2024. Thereafter there will be a balance of term on parole of 1 year 3 months (15) months to date from 8 December 2024 and which will expire on 7 March 2026. 3. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release. 4. The sentence indicates a finding of special circumstances, the reasons for which are set out earlier within these reasons. The non-parole period is 62.5% of the total sentence. 5. A copy of the report of Dr Sidhu should be forwarded to the Department of Corrective Services with the relevant warrant. ********** 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 December 2023