District Court New South Wales Medium Neutral Citation: R v Bell and Cubby [2023] NSWDC 581 Hearing dates: 27/10/23 Date of orders: 27/10/23 Decision date: 27 October 2023 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: BELL: Re Seq 4 Armed robbery – Convicted and sentenced to a term of imprisonment of 3 years 4 months with a NPP of 2 years (9/11/22-8/11/24). I find special circumstances. Form 1 and 25 percent discount taken into account. I direct that a copy of the psychological report in Exh A on sentence be sent to Justice Health and Corrective Services. CUBBY: Convicted and sentenced to an aggregate term of imprisonment of 5 years with a NPP of 3 years (10/9/22-9/9/25). I find special circumstances. Indicative sentences (25 percent discount taken into account): Seq 13 Break enter and steal – 2 years 10 months (Form 1 taken into account). Seq 12 Robbery – 2 years 11 months (Form 1 taken into account). Seq 9 Armed robbery – 3 years 2 months. Seq 8 Armed robbery – 3 years 5 months (Form 1 taken into account). I direct that a copy of the psychologist report in Exh A on sentence be sent to Justice Health and Corrective Services. I refer Mr Cubby to the Drug Court for consideration for admission to the Compulsory Drug Treatment Program. Catchwords: Crime – Sentence – Robbery armed with an offensive weapon – Break enter and steal Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Attorney-General's application under s 37 of the Crimes (Sentencing Procedure Act) 1999 (No 1) (2002)56 NSWLR 146 Bugmy v The Queen (2013) 249 CLR 571 R v Millwood [2012] NSWCCA 2 Director of Public Prosecutions (Cth) v De La Rosa (2010) 273 ALR 324 BP v R [2010] NSWCCA 159 R v Henry and Others (1999) 106 A Crim R 149 Category: Sentence Parties: NSW DPP – Crown Jason Bell – Offender Zane Cubby - Offender Representation: Ms Shepherd for Crown Mr Ye for Cubby Ms Dalrymple for Bell File Number(s): 22/21978, 22/223930 Publication restriction: None sentence 1. The offenders, Mr Jason Bell and Zane Cubby, are for sentence today, in Mr Bell's case for an offence under s 97 of the Crimes Act 1900 of robbery armed with an offensive weapon. The maximum penalty for that offence is 20 years imprisonment. In sentencing him for that offence, he asked that I take into account two other offences which are on a Form 1 document, which I will do. 2. In relation to Mr Cubby, he is to be sentenced for two offences of robbery armed with an offensive weapon, each of course carrying a maximum penalty of 20 years imprisonment. In relation to one of those offences, he asks that I take into account another offence on a Form 1 document. He is also to be sentenced for an offence of robbery under s 94(a) for which the maximum penalty is 14 years imprisonment. Again, there is an offence on a Form 1 document attached to that matter which I will take into account. 3. Also, an offence of break and enter and commit a serious indictable offence, namely stealing, an offence under s 112(1)(a) for which the maximum penalty is 14 years imprisonment. But again, there is a Form 1 document attached to that offence involving another offence of take and drive, which I will take into account also. 4. The maximum penalties are of course important guideposts in the sentencing exercise to which I have regard. 5. Each of the offenders has pleaded guilty at the earliest opportunity, and therefore, I will allow a discount of 25% on account of the utilitarian value of those pleas of guilty. FACTS 1. The facts in each matter are agreed, and in summary are as follows. I will recite first from the agreed facts in relation to Mr Cubby, as those facts include the facts of the robbery of the Esca Café for which they are both to be sentenced. 2. Firstly, in relation to Mr Cubby, there is what has been described as the incident at Forest Lodge. This is the subject of the sequence 13, break, enter and steal offence, as well as the take and drive conveyance offence which is on a Form 1. The victim was a Ms Zheng who lived in a three-storey terrace on Junction Street, Forest Lodge. At about 7.30pm on 22 July 2022, she parked her Subaru XV vehicle in a rear parking area and entered the house, but did not lock the door because a female housemate was going to be returning later. When the housemate did return, she entered via the same sliding door which she closed but did not lock. 3. The victim does not recall where she placed her keys when she returned home. The keys apparently included those to the house and to the Subaru, and also apparently attached some Apple EarPods. The victim also left her laptop computer on a chair in the lounge room. At about 11.40am the next morning, she went downstairs and noticed that the rear sliding door and back gate were wide open. She and her flatmate also noticed that the Subaru, the laptop computer, and two bags belonging to the flatmate were missing. 4. It is an agreed fact that sometime between 7.30pm on 22 July and 11.40am on 23 July 2022 the offender Mr Cubby had entered the house and stolen these items using the victim's keys to take the Subaru. These are the facts of the sequence 13 break, enter and steal offence, and also the sequence 11 take and drive offence, which is on the Form 1 document. 5. The next incident involving Mr Cubby occurred on Sussex Street, and involved a victim by the name of Ms Christy. It occurred at about 4.15am on 23 July 2022 when the victim was walking to work. She was carrying her bag which contained her bank cards, Indonesian ID card and car and motorbike licences, as well as A$30 in cash, a power bank, lipstick, and a notebook. 6. While she was standing at the intersection of Liverpool Street, a black car approached and stopped next to her. She was then approached from behind by the offender Cubby who took hold of her bag. A struggle then took place, in which the victim tried to hold onto the bag but the straps broke, causing her to fall backwards onto her left hip, at which time she felt pain also in her left hand. The victim reached out for her bag, however, the offender pushed her arm away and the quickly drove off with her bag. The straps, however, from the handbag which had been left behind were later tested and found to contain a mixed DNA profile from which the offender Cubby could not be excluded. These are the facts of the sequence 12 robbery offence for which Mr Cubby is to be sentenced. 7. Later that morning at about 7.10am, Mr Cubby entered a 7-Eleven store in Glebe where he tried to use the victim's CBA card to conduct a transaction for $46.49, however, this was declined. This is the sequence 4 attempt to obtain financial advantage by deception offence, which is on a Form 1 document. 8. The next incident involving Mr Cubby took place on 24 July 2022 at an EzyMart at Randwick. The victim was Mr El Hani. He had commenced a shift at the EzyMart on the evening of 23 July. At about 12.44am on 24 July, he was in the store and on the phone when Mr Cubby entered the shop holding a tyre iron in his hand and a screwdriver in the other hand. CCTV captured some of the events that then occurred. 9. The victim put down his phone and the offender said to him "Open the fucking register. Don't fuck with me", or words to that effect, while waving the tyre iron at the victim. Fearing for his safety, the victim did as he was told, after which Mr Cubby took cash from the register before walking out in possession of the entire register and running to a car which drove off. A total of between $150 and $300 was stolen in this robbery. These are the facts of the sequence 9 robbery for which Mr Cubby is to be sentenced, that being an offence of armed robbery. 10. The next offence relating to him occurred at about 5.30am on 26 July 2022 when he attended a BP petrol station on Cleveland Street, Redfern. On that occasion, he placed $50 worth of fuel into Ms Zheng's Subaru which he had taken three days earlier and drove off without paying. These are the facts of the sequence 7 dishonestly obtain financial advantage by deception offence which is on a Form 1 attached to the sequence 8 offence. 11. The next offence occurred at the Esca Café on Glebe Point Road, Glebe. On this occasion, the victims Mr Smirnios and Ms Kotronakis, who were the owners of the café, arrived there at about 4.45am on 26 July 2022. Some time later, the offenders Mr Cubby and Mr Bell ran into the café. Mr Bell ran behind the counter shouting "I have a knife. I have a knife", while Cubby grabbed Ms Kotronakis by the back of the neck. Mr Smirnios opened the till and Mr Bell took the cash tray which contained about $350 cash. 12. The two offenders then left, although on the way out Cubby took an Apple tablet and two Samsung tablets which were on a table. These are the facts of the robbery armed with an offensive weapon offence, which both offenders are to be sentenced for. In Mr Cubby's case it is the sequence 8 offence, and in Mr Bell's case it is the sequence 4 offence. 13. On 26 July 2022, police located the missing Subaru parked in Alexandria. On the rear passenger door they found a fingerprint matching the offender Mr Cubby. Also, his DNA was found on a latex glove in the driver's footwell, and DNA from which he could not be excluded was located on a rear headrest, as well as on a tyre iron that was found on the driver's seat. 14. Mr Cubby was arrested on 28 July 2022 and was interviewed by police. He initially denied but later admitted his involvement in the bag snatch from Ms Christy on Sussex Street. He denied his involvement in other offences claiming that he had been at home, and denied driving the Subaru claiming falsely that he had found the car in a laneway and looked through it. He also told police that he was not employed and is on JobSeeker and said, "I stick to me drug", as well as "I love my drugs". 15. The offender Jason Bell was arrested on 29 July 2022 and he declined to be interviewed by police. In addition to his involvement in the armed robbery at the café on 26 July 2022, the offender Mr Bell asks that I take into account on a Form 1 document his admitted commission of other offences, the facts of which are as follows. 16. On 25 July 2022, a Mr Cleary, the owner of an Audi coupe, parked that car in his garage at Darling Point. However, at around 9.35am the next day police told Mr Cleary that his Audi had been used in a robbery. The statement of facts notes that there is no evidence that the offender Mr Bell stole the Audi. However, he agrees that he drove it without the consent of the owner, that being an offence which is on the Form 1 document. 17. He also admits that at about 5.30am on the morning of the café robbery, he drove the Audi into a BP petrol station on Cleveland Street, Redfern, where he placed $74 worth of fuel into the tank before leaving without paying, this being the other offence on the Form 1 document. OBJECTIVE SERIOUSNESS 1. I make the following assessments of the objective seriousness of each of the offences before the Court, having regard to the various agreed facts which I have just recited: 2. The sequence 13 offence by Cubby involved his breaking and entering Ms Zheng's house, stealing keys to her car, and other items. While it seems that Ms Zheng was at home at the time of the offence, with the risk that she might have been confronted by the offender, this fortunately did not happen, and there is no evidence that the offender knew the victim was home. The property taken was not of great value, but was nonetheless substantial, especially to the victim. While the offender also took the victim's car, a matter that is on the Form 1, this cannot operate to increase the objective seriousness of the break and enter offence, which I assess as being below mid-range, but not towards the low range. 3. The sequence 12 offence by Mr Cubby involved the bag snatch robbery in Sussex Street, which would have been a terrifying experience no doubt for the victim who was alone and vulnerable in the early hours of the morning, and who fell over in the course of a struggle causing pain in her hand and presumably some pain to her hip on which she landed. There is no evidence, however, of any ongoing medical consequences. I assess this offence as being near the mid-range of objective seriousness. 4. The sequence 9 offence involved an armed robbery by Mr Cubby of an EzyMart store while he was armed with a tyre iron and a screwdriver. It therefore involved some level of planning. The amount taken was not great, being between $150 and $300. While the weapons were not as dangerous as some items used in robberies, they would no doubt have caused serious fear in the victim who apparently was alone and vulnerable. I regard this offence as being just below the mid-range. 5. The sequence 8 armed robbery which was committed by both Cubby and Bell together when they entered the Esca Café is a matter to which I have also had regard in terms of objective seriousness. While it was only Bell who was armed with a knife, it seems to me that they each played a similar role. This robbery would also have no doubt been a very frightening one for the two victims. The value of the property was substantial but not great. The offence is aggravated by reason that it was committed in company. That is, the two of them being in company with one another. I regard this as an offence around the mid-range of objective seriousness. 6. Each of the offenders asks that I take into account matters on Form 1 documents. None of these increase the objective seriousness of any of the offences that they are to be sentenced for. Rather, and as was said in Attorney-General's application under s 37 of the Crimes (Sentencing Procedure Act) 1999 (No 1) (2002)56 NSWLR 146, the Court is entitled to take into account those matters with a view to increasing the penalty that would otherwise be appropriate. The Court does so by giving greater weight to two elements, which are always material in the sentencing process. 7. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate. The second is the community's entitlement to extract retribution for serious offences. There is, of course, no obligation on the Court to take the Form 1 matters into account in these ways. It all depends on the circumstances. However, in my view, all of the matters on the Form 1 documents involve discrete examples of other offending, and it is appropriate therefore, in my view, to give weight to both of the factors to which I have just referred. SUBJECTIVE MATTERS 1. Turning then to the subjective circumstances of each of the offenders. The offender Zane Cubby is a 27 year old man of Indigenous heritage. Leaving aside his long criminal history in the Children's Court, he has made regular appearances as an adult before this Court and the Local Court for a wide variety of offences. Suffice to say that his history does not entitle him to any leniency. 2. His subjective case is before the Court by means of written material, including a report from psychologist Anita Duffy. That report records a history, which I accept, of significant deprivation and loss as a child. He never met his father, who was killed by a cousin, before this offender was born. When he was only seven or eight his mother was imprisoned for a stabbing. Both before that and after it, he experienced an extremely unstable childhood in which he was exposed to violence, alcohol, and drugs, and he spent quite a bit of time in out of home care. In addition, his history includes having been sexually abused when in custody aged about 16. 3. Ms Duffy reached the conclusion that the offender meets the diagnoses for Post-Traumatic Stress Disorder, persistent depressive disorder, and substance abuse disorder, currently in remission while in custody. I accept those diagnoses. She concludes that Mr Cubby's drug dependence and alcohol use resulted in a drug taking spree in the weeks leading up to the offences, and that this was a contributing factor in his offending. I accept this. 4. However, committing offences while high on drugs or alcohol is not ordinarily a mitigating matter, except in exceptional circumstances such as where an offender's drug or alcohol problems result not from a free choice, but arise from circumstances over which they had little control, such as significant hardship in childhood, a matter to which I now turn. 5. In my view, based on the history in Ms Duffy's report, the offender Mr Cubby's circumstances are such as to clearly engage the principles discussed in Bugmy v The Queen (2013) 249 CLR 571. Those same principles informed the comments made by Simpson J in the earlier case of R v Millwood [2012] NSWCCA 2, which preceded the Bugmy decision where her Honour said: "I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a 'normal' or 'advantaged' upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions…" 1. In my view, the effects of Mr Cubby's unfortunate background, particularly as a child, are such that his moral culpability for his offences is reduced to a material degree. It has, to borrow Simpson J's words, left him with "fewer emotional resources" by which to manage difficulties, including his propensity to drug abuse. 2. I also accept that his background of exposure to neglect and abuse, drugs, and violence, are matters that contributed to his propensity to abuse drugs and alcohol in later life. I am satisfied further by reference to the principles discussed in Director of Public Prosecutions (Cth) v De La Rosa (2010) 273 ALR 324 that the offender's mental health issues also operate to reduce his moral culpability and make him less of a candidate for the reflection of general and personal deterrence. 3. However, and with reference to the fifth principle discussed in De La Rosa, I consider that his mental condition and his risk of relapse into drugs and crime means that he will continue to present a danger to the community. This is a matter, of course, that pulls in a different direction to my comments about the reduction of his moral culpability, and requires me to give appropriate weight to the need to protect the public. REMORSE AND REHABILITATION 1. In Mr Cubby's case, I accept, based on the comments he made to Ms Durry and his letter to the Court, that he has expressed genuine remorse. He has also expressed a strong wish to avoid drugs and crime in the future, and a keenness to engage in the treatment that he needs to do this. I accept that these are genuine wishes and intentions. However, they are more easily said than done, especially when an offender like Mr Cubby is now fit and clean from drugs in his currently controlled custodial environment. 2. The real test will be when he is released. It will be then that he will be exposed to the sorts of temptations that have brought him here today. While there is hope that he may be able to achieve a better future, it would be unrealistic to expect that his rehabilitation will be easy and without setbacks. His custodial record indicates that he has had a number of disciplinary offences while on remand, so he clearly still has some way to go. At present, in Mr Cubby's case, I think there are some positive signs. But his prospects of remaining crime free will largely depend on whether he can obtain work, stable housing, and stay away from drugs. I think his prospects are, at present, guarded. 3. Turning to the subjective case relating to Jason Bell. He is now aged 23. Leaving aside his history in the Children's Court, his adult criminal history is not one that gives him any legitimate expectation of leniency. He is also of Indigenous background. His subjective case is largely described in the report of psychologist Ann-Marie De Santa Brigida. His childhood was less than ideal, given that his parents were both regular abusers of drugs and alcohol, and his father was in and out of gaol and was the perpetrator of domestic violence on the offender's mother when he was not in gaol. 4. While the offender reported no history of being sexually abused, I am satisfied that his childhood, while perhaps not as severely deprived and disturbed as that of Mr Cubby, is such that it does engage the principles of Bugmy v The Queen to which I have earlier referred. 5. The offender Mr Bell's childhood and his schooling were marred by his own problems in accepting authority and this is consistent with the psychologist's conclusion that he met the criteria for conduct disorder in childhood, and also Antisocial Personality Disorder. Regrettably, his schooling was so disrupted that he has real difficulties now with his literacy. 6. The psychologist also concluded that Mr Bell meets the diagnoses for Post-Traumatic Stress Disorder and severe opioid and benzodiazepine disorders. I have no doubt that his developmental background has made a substantial contribution to his issues with drug abuse, impulse control, and his related offending. I accept that his background is such that it reduces his moral culpability to some degree. 7. As a result, I consider that he is a less appropriate case for the reflection of general and personal deterrence. However, and as noted from the De La Rosa decision, there is the countervailing aspect which I keep firmly in mind, that by reason of this offender's ongoing behavioural difficulties arising from his mental state, he does present an ongoing risk to the community. I therefore must give appropriate weight to the need to protect the public. 8. The offender Mr Bell retains the support of his mother, who has attended the hearing today, and also his father who has provided a letter to the Court. He is also supported by a letter from the Chaplain at the South Coast Correctional Centre who speaks highly of him, and notes the offender's expressed wishes to make a fresh start when he is released. HARDSHIP TO FAMILY 1. It was argued that in Mr Bell's case I would take into account the hardship that has and is likely to be experienced by his mother and his children by reason of his incarceration. It has been, of course, well-established in many cases that considerations of that sort can only operate to significantly impact the appropriate sentence where the circumstances are exceptional. In my view, the circumstances in this case are not exceptional. It is, of course, almost always the case that a person being sentenced to full-time custody has the effect of imposing hardship on others. Nonetheless, while the hardship to his mother and children is not exceptional, it is a matter to which I have given some consideration. REMORSE AND REHABILITATION 1. In Mr Bell's case, he told the psychologist that he feels sorry for the victims and he apologises, or wishes to do so. I accept, therefore, that there is some genuine remorse in his case. In terms of his prospects for the future, I make the following comments and findings: 2. Firstly, his criminal history and his ongoing mental challenges are obviously problems when it comes to forming a positive view about his future. There is also the fact that he has incurred some disciplinary offences in custody. On the positive side, he has support from his family, and he is still quite young. I think his prospects are reasonable but guarded. Like Mr Cubby, it will depend upon whether he can obtain work and stay away from drugs on his release. THE PANDEMIC 1. I have taken into account in relation to each offender's sentence the fact that their time in custody to date and to some extent into the future has been during some aspects of the COVID pandemic. This is not a matter to which I attach great weight, given that the largest impacts of the pandemic on persons in custody was felt at somewhat earlier times than the periods for which these two persons have been in custody. Nonetheless, it is a matter to which I have given some weight. YOUTH 1. I have also taken into account the relative youth of each offender. In BP v R [2010] NSWCCA 159, Hodgson JA said: "…considerations of retribution direct attention to what the offender deserves, and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution…" 1. and "…In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid-20s…" 1. I note that in relation to those comments that there have been observations in other cases, that this aspect of development of emotional and other maturity is often more marked in males than in females in terms of its delay. 2. This aspect of youth is of more relevance to Mr Bell's case given that he was only 21 at the time of the offence, and, therefore, likely, as noted in that comment by Hodgson JA, and commented upon by the psychologist Ms De Santa Brigida, to still be at a stage where his ability to regulate his behaviour and choices is still developing. I have taken this aspect into account in giving some greater weight to the importance of rehabilitation in his case. I have also taken this into account in Mr Cubby's case, that is his youth, although to a significantly lesser degree, given his more advanced age. DETERMINATION 1. In determining the sentences for the robbery offences, I have had regard to the guideline judgment of the Court of Criminal Appeal in R v Henry and Others (1999) 106 A Crim R 149. That guideline case was concerned with offences of armed robbery, and I note that two of the offences before the Court today are armed robbery offences. While the sequence 12 bag snatch offence by Mr Cubby was not an armed robbery, the factors discussed in Henry remain relevant, in my view, and I have given consideration to each of the factors referred to in Henry, as well as the range of sentence suggested in that case. 2. I have also had regard to sentencing statistics for the various offences before the Court, to the extent that they are of assistance, which is only of course in very broad terms. In determining the sentence for each offender, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I am also satisfied for the purposes of s 5 of that same Act that no penalty other than imprisonment is the appropriate penalty. SENTENCE - BELL 1. Dealing with Mr Bell for the armed robbery of the Esca Café, after a 25% discount and taking account of the Form 1 matters, I impose a head sentence of three years four months imprisonment. I make a finding of special circumstances for adjusting the ratio between head sentence and non-parole period based upon his relative youth and the need for a fairly lengthy period of monitoring in the community when he is released. Having made that finding, I impose a non-parole period of two years. 2. I note that the offender Mr Bell was arrested on this offence on 29 July 2022. However, since then he has served custody partly due to other sentences such that his time attributable to this offence alone dates from 21 February 2023. I consider it appropriate, however, to backdate his sentence to some further extent to give some approximation to the likely result if he had been sentenced for this offence at the same time as those other offences or some of them. 3. I order, therefore, that the sentence date from 9 November 2022, which is a date approximately midway between 21 February 2023 and 29 July 2022. The head sentence, therefore, will expire on 8 March 2026. The two year non parole period will expire on 8 November 2024. SENTENCE - CUBBY 1. I turn then to the case involving Mr Cubby. I intend to impose an aggregate sentence in his case, given that there are a number of offences. In those circumstances, I am required to nominate the indicative sentences that I would otherwise have imposed. Those are as follows. Each of them are after the application of the 25% discount: 2. For the sequence 13, break, enter and steal, and taking into account the Form 1, the indicative is two years and ten months imprisonment. 3. For the sequence 12, bag snatch offence, and taking into account the Form 1, the indicative is two years 11 months imprisonment. 4. For the sequence 9, robbery offence involving the EzyMart, the indicative is three years two months imprisonment. 5. For the sequence 8 offence, and taking into account the Form 1, this being the armed robbery of the Esca Café, the indicative sentence is three years five months imprisonment. It will be noted that that indicative is one month longer than what I have imposed in relation to Mr Bell. The reason for that is so as to reflect in particular the younger age of Mr Bell. 6. Returning then to Mr Cubby. I have had regard to totality principles and the need to avoid imposing a crushing sentence, but also to whether the sentences should be accumulated, and if so, to what degree. In my view, there does need to be some notional accumulation so as to acknowledge the fact that each offence involved a discrete criminal act committed against different victims. 7. In Mr Cubby's case, therefore, I impose an aggregate head sentence of five years imprisonment, and I impose a non-parole period of three years. I make a finding of special circumstances based on the risk of institutionalisation, given the amount of time that he has already spent in custody in his life generally, and the need for a significant period of monitoring in the community. 8. I have also given consideration to the backdating question in his case. Mr Cubby was arrested on 28 July 2022, but since that time part of his custody has been due to other matters. His custody solely referable to the matters before the Court today dates from 25 October 2022. However, I order that the sentence in his case commence on 10 September 2022 so as to give him some benefit of a likely outcome if these matters and other matters for which he has already served a sentence had been dealt with together. 9. The head sentence of five years, therefore, will expire on 9 September 2027, and the non-parole period of three years will expire on 9 September 2025. I direct that a copy of the psychological reports in each case be sent to Justice Health to be placed on the file relating to the relevant offender. 10. The parties have got notes of those sentences. Any questions arising from any of those orders? 11. SHEPHERD: No. 12. YE: I'm just doing some quick calculation and it appears that the non-parole period extends beyond the 18 months. That might mean that Mr Cubby might be eligible for a compulsory drug treatment program. Would your Honour be open to making that referral to the Drug Court? 13. HIS HONOUR: Ms Crown, do you want to say anything about that? 14. SHEPHERD: No. 15. HIS HONOUR: That's all I need to do is it, just to make the referral to the Drug Court? 16. YE: Yes, and then if he's accepted then that's dealt with. 17. HIS HONOUR: Considered for the ballot and so forth. 18. YE: Yes. 19. HIS HONOUR: All right. 20. In Mr Cubby's case, I make a referral to the Drug Court for consideration of his case. ********** 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: 22 December 2023