District Court New South Wales Medium Neutral Citation: R v Cobeta [2024] NSWDC 477 Hearing dates: 6 September 2024 Date of orders: 13 September 2024 Decision date: 13 September 2024 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 Albert Cobeta is convicted. 2 I impose a term of imprisonment of 2 years and 6 months. 3 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (13 September 2024) and expire on 12 March 2027. 4 The offender must report to the Community Corrections Office on or before 4pm on 20 September 2024. 5 The standard conditions of the order apply: (a) the offender must not commit any offence; and (b) the offender must submit to supervision by a Community Corrections Officer. 6 The following additional conditions apply: (a) the offender must abstain from taking all restricted or prohibited drugs, except those prescribed by a medical practitioner; (b) the offender must receive treatment for drug rehabilitation and his mental health as reasonably directed by Community Corrections; and (c) the offender must not associate with Raphael Kenny, Isilel Kirby, Johnathon Towers or Jemma Dann. Catchwords: CRIME — Drug offences — Supply prohibited drug — Commercial quantity Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Cases Cited: Attorney General's Application No 1 of 2022 (2002) 56 NSWLR 147 R v Olbrich (1999) 199 CLR 270 R v Qi [2019] NSWCCA 73 Wany v DPP [2020] NSWCA 318 Category: Sentence Parties: Rex (Crown) Albert Cobeta (Offender) Representation: Counsel: A Robertson (Crown) A Djemal SC (Offender) Solicitors: Office of the Director of Prosecutions (Crown) Zahr Partners (Offender) File Number(s): 2022/355014 Publication restriction: None JUDGMENT 1. Albert Cobeta (the offender) appears for sentence after pleading guilty in the Local Court to the following offences: 1. sequence 1: supply prohibited drug not less than the commercial quantity (561.4g of cocaine) contrary to s 25(2) Drug Misuse and Trafficking Act 1985. This offence has a maximum penalty of 20 years imprisonment and/or a fine of 3,500 penalty units ($385,000). Parliament has also prescribed a standard non-parole period of 10 years. 2. sequence 2: supply prohibited drug not less than the large commercial quantity (3634g of MDMA) contrary to s 25(2) Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is life imprisonment and/or a fine of 5,000 penalty units ($550,000). Parliament has also prescribed a standard non-parole period of 15 years. 1. The offender also asks the Court to take into account an offence of deal with proceeds of crime (less than $100,000) contrary to s 193C(2) Crimes Act 1900 (sequence 4) and one count of supply prohibited drug between the indictable and commercial quantity contrary to s 25(1) Drug Misuse and Trafficking Act 1985 (sequence 6) on a Form 1 when passing sentence for these offences. Approach to Sentencing 1. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and the matters set out in s 21A of that Act. 2. The offender entered pleas of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999. 3. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ). 4. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General's Application No 1 of 2022 (2002) 56 NSWLR 147. Facts 1. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed. Sequence 1 1. Between 24 September 2022 and 24 November 2022, the offender, in Caringbah and surrounding suburbs in New South Wales, supplied a total of 561.4 grams of cocaine in return for payment of $170,000, constituted by the following two supplies: 1. On 24 September 2022, Raphael Kenny received a request to buy 10 ounces of cocaine on Wickr. On 26 September 2022, Mr Kenny created a group chat with the offender and Isilel Kirby relating to this supply. The offender was to be the person to deliver the drugs. On 27 September 2022, the buyer messaged the group chat and confirmed he would purchase 10 ounces of cocaine. At about 1:20pm on 28 September 2022, the offender provided an address in Caringbah to the group chat. He was then seen leaving the residence of Johnathan Towers and Jemma Dann carrying a brown paper bag. At about 1:42pm, the offender arrived at the address and spoke to the buyer telling him that "blob" (Mr Kirby) would be arriving shortly. Mr Kirby arrived and retrieved the brown paper bag from the offender's vehicle. They had a discussion where Mr Kirby said he was a friend of Mr Kenny and the offender, that they could supply MDMA and other drugs and that he would send the buyer a price list for various drugs. Mr Kirby supplied 281.4 grams of cocaine in exchange for $85,000 in cash. Mr Kirby gave the cash to the offender, who drove to the residence of Mr Towers and Ms Dann and entered the residence carrying the bag containing the cash. A short time later Mr Kirby sent the buyer a price list for the various drugs. The drugs were later analysed and found to have a purity of 28.5%. Mr Tower's fingerprints were identified on the front and back of the vacuum sealed package containing the cocaine. 2. On 23 November 2022 on a group chat comprising of the offender, Mr Kenny and Mr Kirby on the application "Threema", they agreed to supply 5,000 MDMA tablets and 10 ounces of cocaine for $171,000. On 23 November 2022 Mr Towers was on a group chat to assist with arranging delivery. Mr Towers sent a photograph to the group chat with the order along with a hand-written note in code as requested by the buyer and including the newspaper for that day. On 24 November 2022, Mr Kenny and Mr Kirby drove to Caringbah to meet the offender. Mr Kirby handed a package to the offender. The offender attended the residence of Mr Towers and Ms Dann and collected a black backpack containing the drugs. The buyer received an encrypted message directing him to an address in Caringbah South. At about 10.30am the buyer met with Mr Kenny and Mr Kirby at the meeting location. They confirmed that the drug was nearby and requested that the buyer provide the $171,000 and then the drugs would be delivered. At 10:37am, Police arrested the offender outside his vehicle in Caringbah South. The drugs seized from the offender's vehicle were in a plastic package containing a compressed substance that was later analysed to be cocaine in an amount of 282 grams with a purity of 38%. Sequence 2 1. On 24 November 2022 the offender, in Caringbah South in New South Wales, supplied 3,634 grams of MDMA in return for payment of $86,000 constituted by the following supply: 1. On 23 November 2022 on a group chat on Threema the offender, Mr Kenny and Mr Kirby agreed to supply 5000 MDMA tablets and 10 ounces of cocaine for $171,000. The offender represented during the price negotiations that the pills were "double the strength of normal eccies". The details of the exchange are the same as those set out for the second supply of cocaine and I will not repeat them. The drugs supplied included five packages containing numerous orange spade and green grenade shape tablets that were later examined to be 3,634 grams of MDMA. The orange tablets (3254.7 grams) had a purity of 22%. The green grenade shaped tablets (383.3 grams) had a purity of 14%. Sequence 4 1. When the offender was arrested police conducted a search of the vehicle and seized $11,000 cash. Sequence 6 1. On 24 November 2022, Police executed a search warrant at the offender's residence in Loftus. In a chest of drawers in an upstairs bedroom, Police seized a knotted freezer bag containing a small block of white powder, being 28g of cocaine. 2. The offender was conveyed to Sutherland Police Station and entered into custody. He declined to participate in an interview. The Offender's Case on Sentence 1. The offender relies on the following documents: 1. psychological report of Michelle Pal dated 28 August 2024; 2. letter of apology of the offender dated 29 August 2024; 3. affidavit of Teagan Wilson sworn 28 August 2024; 4. reference letter of Alberto and Milly Cobeta dated 27 August 2024; 5. reference letter of Sandra de Reinardi dated 28 August 2024; 6. reference letter of Kelly Wilson dated 27 August 2024; 7. reference letter of Olivia Wilson dated 28 August 2024; 8. refence letter of James Ortiz dated 22 August 2024; 9. reference letter of Shaun Baldwin dated 22 August 2024; 10. reference letter of Usha Bandara dated 30 August 2024; 11. Corrective Services NSW extracts of case notes; 12. Corrective Services NSW offender work assignments; 13. referral letter – Engadine Central Medical Centre to Alison Cullen dated 6 March 2023; 14. letter of update – Alison Cullen to Engadine Central Medical Centre dated 13 June 2023; 15. letter of update – Dr Sydney Oen to Engadine Central Medical Centre dated 11 September 2023; and 16. letter - Engadine Central Medical Centre to Alison Cullen dated 25 September 2023. 1. The following is precis of the evidence relied on by the offender. 2. The offender was the youngest child born to his parents, having one older sister. He was born on 1 October 1993 and is 30 years of age. His parents immigrated from Spain, and he was born in Australia and grew up in Hurlstone Park. 3. The offender reported to the psychologist that his mother was strict due to her religious beliefs but acknowledged she "always had the best intentions" for him. He recalled his father was like his "sidekick" as he would take the offender to soccer on the weekends. 4. His father worked as a carpenter and his mother as a manager at Coles. Both his parents worked long hours and the offender spent a lot of time with his maternal grandparents until they moved back to Spain when he was around eight years old. He had a very close relationship with his family members, particularly with his maternal grandparents. The offender reported to the psychologist that his maternal grandmother passed away in 2022 and that this was a difficult time for him and his family. 5. The offender would sometimes get in trouble for doing the wrong thing such as skipping school. He would often be grounded as punishment but did not experience any corporal punishment during his upbringing. 6. The offender disclosed to the psychologist that he experienced sexual abuse in the course of attending church organised activities as a child. 7. When the offender ceased attending church the abuse stopped, however he felt unable to tell anyone as he worried no one would believe him and was fearful of how others would perceive him. The offender reported that he lost his faith due to the abuse and subsequently developed an aversion to church. He had not told anyone about his trauma until he was incarcerated following his arrest on 24 November 2022 and another inmate had opened up to him about his own trauma. The offender questioned his sexuality until the age of 13 due to the abuse. He has engaged a solicitor to commence legal proceedings against the church to seek compensation for the abuse. 8. The offender attended primary school and high school at religious based private schools. He recalled being the "class clown" as he was always disruptive in class. He also reported being suspended from school approximately 10 times, each time for fighting. He recalled being bullied once in Year 4 by some of the other boys who were jealous of him having female friends. 9. Following his completion of high school, the offender bounced between various jobs and trades until around the age of 25 when he commenced work as a crane operator as he heard the pay was good. He took his first position in Wollongong and was subsequently offered a contract in Canberra where he moved for two years at approximately age 25. He reported working six to seven days each week from 5am to 7pm each day. The offender was satisfied working as a crane operator as he was earning $3,500 per week. Although he remained dedicated to his family while living in Canberra often driving to Sydney on the weekends, he found it difficult being away from his children and was able to find work in Sydney. He worked for Uplift Cranes for just over one year up until his arrest. The offender has taken unpaid leave from the position during his incarceration as he was "too embarrassed" to disclose the charges. He informed his employer that he was moving to Queensland and would be back at some time in the future. The offender hopes to recommence work at this company once he is released from custody. 10. The offender has had one significant relationship in his life with Tegan Wilson whom he met through a friend at the age of 21 years. Ms Wilson fell pregnant "by accident" with their first child who he described as a "blessing". The offender subsequently proposed to her when she was eight months pregnant. The offender and Ms Wilson now have three children aged seven, three and 17 months. The offender is close with his children and stated to the psychologist that being in custody "is the hardest time of my life, it kills me every day because I'm such a family man and want to be with by kids". 11. He described his relationship with Ms Wilson as good and stable despite the first year of their relationship being "rocky" due to a former partner of the offender having continued to harass him. The offender is very angry at himself because of the effect his incarceration is having on his young, dependant family. He is worried for his family's wellbeing, and he knows they are struggling financially. 12. The offender reported that he began using drugs at age 12 or 13. He first tried cannabis which developed into a daily habit. He started taking ecstasy pills and drinking alcohol at 15 years old, approximately a couple of times a month when he would attend a party. He disclosed that at one of these parties he smoked "ice" for the first time and was immediately hooked. He also tried cocaine when he was around 18 years old. The offender developed a habit of going clubbing all night on cocaine and then using methylamphetamine to calm him down when he got home. 13. The offender ceased smoking cannabis at age 17 as he no longer enjoyed the effects of it. He continued using methylamphetamine and cocaine following high school and his use increased when he moved to Canberra for work and also in 2022 following his grandmother's passing. Up until his arrest, the offender was consuming approximately 14-16 grams of cocaine and 7 grams of methamphetamine per week. He would hide is drug use from Ms Wilson and his children and would never return home "high". The offender also reported consuming on average a six pack of beer each night. 14. The offender acknowledged during his assessment with the psychologist that he had developed a severe drug problem that gave rise to significant debts with drug dealers. The offender has stopped using drugs completely since going into custody. He reported experiencing withdrawal symptoms for the first six weeks. At the date of the psychologist's report, he had been abstinent from all substances, including alcohol, for a period of 20 months. In his letter to the Court, the offender stated that he has "seen first hand all the destruction that drugs have on lives" and expressed his commitment to remaining abstinent from illicit substances. 15. Between 13 March 2023 and 2 January 2024, the offender undertook regular drug urine tests which all returned negative results. 16. Ms Wilson states in her affidavit that she was "surprised" to learn of the offender's drug use as he "hid it from her so well". It was only after entering custody that the offender has been able to discuss such matters and Ms Wilson noticed positive changes in the offender's behaviour such as being less anxious and on edge. 17. The offender completed an anger management program with Clinical Counsellor, David Nielsen, in 2020 at the direction of the Court when sentenced to an Intensive Corrections Order for a previous offence. 18. When he was on bail in 2023 to 2024, the offender completed 12 therapy sessions with forensic psychologist, Alison Cullen, in accordance with his bail conditions. These sessions included treatment goals relating to relapse prevention, trauma counselling for PTSD, anxiety reduction strategies and ADHD behavioural support. 19. Following his initial consultation with Ms Cullen, he was referred to a psychiatrist to consider ADHD medication. The offender attended psychiatrist, Dr Sidney Oen, in April 2023 who confirmed the ADHD diagnosis and prescribed non-stimulant based medication. The offender described the medication as having some benefit during his assessment with the psychologist. He realised what he believed to be his "anger problem" was actually being caused by his underlying ADHD symptoms and once medicated he no longer experienced angry outbursts. Since going back into custody in June 2024, the offender has not been able to access this medication. 20. The offender's criminal history consists of three prior charges all relating to common assault and affray. The offender does not have any drug-related charges in his prior criminal history. He has also been on bail twice before, whereby he complied with the conditions stipulated and has never had any breaches. 21. In relation to the offences before the Court, the offender admitted to the psychologist that his role in the drug supply was as a "transporter". He had accumulated significant drug debts from his own misuse and feared for his life and his family's lives if he did not repay his debts, as threats had been made to this effect. He did not receive any money for his role. 22. While in custody, the offender has worked in the Metal Fabrication Department. The offender's case notes state that he was always polite and respectful to fellow inmates and demonstrated a great and consistent work ethic. 23. While the offender has been in custody, Ms Wilson has struggled financially and emotionally. She states in her affidavit that she has been required to move in with her mother and sister and has commenced counselling. She had also observed the children became hysterical and regressed when the offender was "suddenly gone". 24. The offender expressed remorse to the psychologist, in his letter to the Court and to each of his character referees for his offending behaviour and how his actions have impacted his family. He described feeling very guilty and ashamed that his time in custody has caused Ms Wilson and his children emotional pain. In his letter to the Court, the offender stated, "I want to be the best version of myself that I can be so my kids can be proud of their dad". 25. The offender has the full support of his family, Ms Wilson, and each of his character referees. The offender's character referees described the offender as a hands-on father who is devoted to his family and ensuring their financial and emotional wellbeing. He is described as a person of good character, a supportive friend and a hard worker who is always willing to offer his time to assist others. During his time on bail and attending psychology sessions, his character referees noted significant positive changes in the offender's attitude and behaviour. 26. The psychologist opines that at the commission of the offences, the offender satisfied the diagnostic criteria for: 1. Posttraumatic Stress Disorder (PTSD); 2. Attention-Deficit Hyperactivity Disorder (ADHD); 3. Severe Methamphetamine Use Disorder; 4. Severe Cocaine Use Disorder; and 5. Mild Alcohol Use Disorder. 1. She further opines that her assessment revealed a "direct nexus between [the offender's] mental health conditions and the index offence", such that in the absence of the offender's underlying PTSD and ADHD he would have been less vulnerable to the use of illicit substances which led to the commission of the offences before the Court. The psychologist states that the offender no longer meets the criteria for the substance disorders due to being in sustained remission for 21 months. 2. Although the offender has received psychological and psychiatric treatment for his PTSD and ADHD symptoms, the psychologist states the lack of appropriate medication in custody for his ADHD raises concerns as to how this may increase the offender's symptomatology, including his anxiety and poor impulse control. She opines that these diagnoses would make a custodial sentence for the offender more onerous. 3. The psychologist states that a custodial sentence would be particularly onerous for the offender's young family for whom he provided for emotionally, physically and financially. The disruption of the attachment bonds between the offender and his children are likely to have significant adverse consequences given this is the second occasion their contact has been disrupted. 4. The offender's protective factors, including his absence of prior drug related offences, family support, the value he places on fatherhood, demonstrated compliance with direction including attending psychological appointments and stable employment once he is released from custody, according to the psychologist, support his low risk on the LSI-R. Findings on the offender's case on sentence 1. The Crown urged me to be cautious of accepting the offender's case on sentence, when so much of it depended on the self-report of the offender. In particular the Crown submitted: 1. the location of $11,000 in the offender's vehicle at the time of his arrest did not support the assertion that the offender participated in the offences to repay a drug debt; 2. that it would have been remarkable for the offender to be able to keep secret from his family the extent of his drug use that was outlined to the psychologist and that the extent of his mental health symptoms were overstated; 3. that the Court would have some reservations about his prospects of rehabilitation because he had just finished a period of supervision by Community Corrections on an Intensive Corrections Order relating to the affray committed by him on 6 April 2019. 1. In response, the offender submitted that there was significant independent support for the matters reported to the psychologist. In particular: 1. Mr Bandara, a work colleague of the offender who provided a character reference, was aware of the offender's drug use and that it had worsened in the months before he was arrested. In contrast, the offender's wife swore an affidavit that she did not know that he was using drugs, but had noticed him becoming increasingly anxious, short-tempered and behaving erratically. Also, on this point, I would infer from the history given by the offender to the psychologist that his heaviest drug use was occurring when he was in Canberra for work and away from his family, but there were also times when he was at home and he did take measures to conceal his drug use from his wife. 2. The psychologist opined that there was a causal connection between the offender's history of trauma his untreated ADHD and his behavioural problems that had manifested in a number of convictions for affray. The psychologist's opinion was based in part on psychometric testing that supported the existence of the symptoms suffered by the offender and that such testing contained internal validity measures. 3. The offender has demonstrated a change in his behaviour after seeking treatment for his mental condition and remaining abstinent from drugs for an extended period, which has been confirmed by a series of negative urine testing. 4. The circumstances of locating the cash in the offender's vehicle cannot prove to the requisite standard that the cash belonged to the offender or that it was in fact proceeds of crime from drug supply. 1. Having carefully considered all of the evidence, I am satisfied that the offender's submissions should be accepted on the issues raised by the Crown. Consideration Objective seriousness 1. The offences took place over a two month period involving two discrete episodes of supply. The drugs were supplied for significant amounts of cash. 2. The offender's involvement included being in group chats to arrange the transactions, attending the transactions and transporting drugs and money to and from places. I am satisfied that he collected drugs from, and delivered the money to, persons who were higher than him in the organisation. Taking into account all of the evidence, the offender's role was at the lower end of the hierarchy. 3. The cocaine supplied was about double the commercial quantity of 250g. The purity of the drug was about 38%. The MDMA supplied was over six times the large commercial quantity of 500g. The purity of the drugs was relatively low. There was a large degree of overlap in the offences. 4. I have taken into account the maximum penalty for the offences and the standard non parole periods as legislative guide posts as to the appropriate sentence. Deterrence 1. General deterrence is a fundamental consideration in serious drug offences. The sentence must be of such a severity to deter others from engaging in drug related activities. The sentence must signal to would be participants in drug offences that the financial and other rewards will be neutralised by the risk of severe punishment. 2. General deterrence can be afforded less weight where a person suffers from a mental condition because they are not an appropriate person to be made an example of. In this case, the offender's childhood trauma and undertreated ADHD led to the development of a complex mental condition that he sought to alleviate with illicit drug use. It was common ground that his mental condition and its genesis was a matter that reduced his moral culpability for the offences and that general deterrence could be afforded less weight. 3. There is some need for specific deterrence in this matter but it is significantly reduced for the reasons that follow. The offender has good insight into the error of his ways. He has demonstrated whilst on bail that he is willing to rehabilitate himself and to focus on leading a law abiding life and caring for his family. I am satisfied that his prior offences were committed against the background of his ADHD and that he has sought appropriate treatment for that condition which is now well controlled. Aggravating factors 1. There are no relevant aggravating factors. Mitigating factors 1. The offender is unlikely to reoffend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. The offender hid his problems that stemmed from his abuse as a child and he turned to drugs to deal with his mental condition that was untreated. I am satisfied that the offending was a result of the offender's drug addiction and that he found himself in a difficult financial position by reason of his drug debts. The offender has a strong commitment to his family which was instilled in him by his own supportive and nurturing family. The comment in his letter to the Court that he hopes to be "half the father that his father was to him", is a powerful motivator for him. I am satisfied that the offender has learnt a salutary lesson from his involvement in the offences, that by reason of his conduct he has deeply hurt the people who he cares for the most. 2. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated by his conduct on bail that he is committed to change and that he has excellent prospects of rehabilitation. He has work to return to and the support of his family and friends. He has meaningfully engaged with treatment for his mental condition and is finally dealing with his PTSD and ADHD. The offender has been working in the metal fabrication shop whilst in custody and has demonstrated himself to be polite, compliant with routine and to have an excellent work ethic. 3. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has expressed remorse to the psychologist, his family and to the Court. He has accepted responsibility for his actions and I am satisfied that he is genuinely contrite. 4. I have taken into account the conditions imposed on prisoners in New South Wales in response to the COVID-19 pandemic, which I accept may continue to be imposed for some time into the future. I am satisfied that the offender's time in custody has been made more onerous by the restrictions imposed to deal with the COVID-19 pandemic and his mental condition. 5. I have had regard to parity. So far, I have sentenced Mr Kenny for his involvement in similar but more serious offences. Mr Kenny was charged with two counts of supply a large commercial quantity of drugs. In the charge that overlapped between the two offenders, Mr Kenny was responsible for supplying a little over 6 kgs of MDMA in three separate acts of supply. Both offenders had very strong subjective cases, albeit for different reasons. Overall, for reasons of parity and by reference to the different facts in each case, the offender must receive a significantly more lenient sentence compared to Mr Kenny. 6. The offender was in custody from the date of his arrest, 24 November 2022 to 2 March 2023 before being released on bail to attend the birth of his third child. He returned to gaol on 13 June 2024 after entering his pleas of guilty. He has spent a total of 190 days in custody for these offences. 7. The offender also contended that he was subject to strict bail conditions in the period of 2 March 2023 to 13 June 2024 that amounted to quasi-custody and for which he should be given further credit. For a large part of that period, he was the subject of an overnight curfew, daily reporting to police, private electronic monitoring and restricted use of the internet and encrypted communications services. Whilst these conditions were strict, he was able to work, attend the birth of his child and seek psychological treatment. In all of the circumstances, I am not satisfied that his bail conditions amounted to quasi-custody. Penalty 1. Albert Cobeta is convicted. 2. I have considered s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate. 3. I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The sentences I would have imposed after allowing for the appropriate discount, had separate sentences been imposed are: 1. Sequence 1 – 2 years with a non-parole period of 12 months; 2. Sequence 2 – 2 years and 7 months with a non-parole period of 17 months. 1. The appropriate aggregate term of imprisonment is 3 years. 2. Having reached that conclusion, I must consider if the sentence can be served by way of an Intensive Corrections Order. 3. I have had regard to s 66 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that it is appropriate to order that the sentence be served by way of an Intensive Corrections Order (ICO), for the reasons I have already given and the following additional reasons, including by returning to the purposes of sentencing in s 3A. 4. I have had regard to community safety as the paramount consideration. In this case, the protection of the community can be achieved by allowing the offender to continue his rehabilitation in the community. The offender has been abstinent from illicit substances since November 2022. He would benefit from some formal drug rehabilitation treatment to assist him to avoid relapse. He has been working and has a job to return to. He has voluntarily sought and accepted treatment from a psychologist and a psychiatrist for his mental health condition. He has demonstrated by the way that he has conducted himself on bail between March 2023 and June 2024 that he is committed to his own rehabilitation and to providing for and caring for his young family. I am also satisfied that the offender has reached a point where if he was to be sent back to prison for an extended period, there is a risk that he would lose the progress he has made with his rehabilitation. In my view, all of the steps he has taken in combination are integral to his rehabilitation. Out of the two options of sending him back to prison or imposing an ICO, I am satisfied that the protection of the community will be best achieved by the offender serving the sentence in the community by way of an ICO: Mandranis v R [2021] NSWCCA 97 at [51]. 5. I am mindful of the statement of the Court of Criminal Appeal in R v Qi [2019] NSWCCA 73 at [74] (Button J) that an ICO should not be imposed for an offence that carries a maximum penalty of life imprisonment and a high standard non parole period, except in very exceptional circumstances. I am satisfied, for the reasons given, that this is such a case. Notwithstanding that these offences involve some objective gravity, that does not preclude an imposition of an ICO if that would better serve the objects of sentencing: Wany v DPP [2020] NSWCA 318 at [5]. 6. I am satisfied that the offender's addiction got out of control and got to a point where he owed a sizeable drug debt and that he became involved in these offences to repay that debt and to avoid having to disclose his addiction to his partner. 7. By reference to his mental condition and the genesis of his addiction, his moral culpability is reduced and accordingly general deterrence, denunciation and retribution can be afforded less weight. 8. It should also be noted that the offender has served a period of about six months in full time custody for these offences and spent further time on strict bail conditions that have had a significant impact on his liberty. The imposition of an ICO for a further lengthy period will mean that the restrictions on his liberty will continue. I am satisfied that by reference to his previous incarceration, onerous bail conditions and the imposition of the ICO that he has been adequately punished for the offences. 9. I will reduce the term of imprisonment to be imposed by 6 months (which I have rounded down) to take into account his pre-sentence custody, because an ICO cannot be backdated. 10. I impose a term of imprisonment of 2 years and 6 months. 11. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (13 September 2024) and expire on 12 March 2027. 12. The offender must report to the Community Corrections Office on or before 4pm on 20 September 2024. 13. The standard conditions of the order apply: 1. the offender must not commit any offence; and 2. the offender must submit to supervision by a Community Corrections Officer. 1. The following additional conditions apply: 1. the offender must abstain from taking all restricted or prohibited drugs, except those prescribed by a medical practitioner; 2. the offender must receive treatment for drug rehabilitation and his mental health as reasonably directed by Community Corrections; and 3. the offender must not associate with Raphael Kenny, Isilel Kirby, Johnathon Towers or Jemma Dann. 1. If the offender fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or a revocation of this order. If the order is revoked, the offender may be required to serve all or some of the period of the sentence in full-time custody. 2. A copy of the order is to be given to the offender on his release from custody. ********** 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: 14 October 2024