District Court New South Wales Medium Neutral Citation: R v Boctor [2020] NSWDC 46 Hearing dates: 25 and 26 February 2020 Date of orders: 26 February 2020 Decision date: 26 February 2020 Jurisdiction: Criminal Before: Montgomery DCJ Decision: (1) The offender is convicted; (2) I grant bail on the following conditions: (a) The offender is to attend court as and when required; (b) The offender is to attend Community Corrections, Hornsby office on 5 March 2020 or as otherwise directed by Community Corrections; (c) The offender is to comply with all reasonable directions of Community Corrections; (3) I direct a Home Detention Assessment Report be obtained; (4) I indicate that pending the further Home Detention Assessment Report being received, the intention of the Court is that the offender be sentenced to a term of imprisonment of one year and ten months to be served by way of an Intensive Corrections Order, commencing on a date when the Court has before it that report with conditions of home detention pursuant to the Crimes (Administration of Sentences) Regulation 2014, Regulation 189, save that such detention is not to apply during the hours of his work in his tobacconist, gift shop business and that the offender is to perform 250 hours of community service work; (5) I indicate that it is the intention of the Court that when the matter is returned following receipt of the Home Detention Assessment Report that the offender be disqualified from holding a New South Wales Driver's License and from operating a motor vehicle on the roads of New South Wales for a period of 4 years commencing 19 January 2018 and ending 18 January 2022; (6) I return the matter before me for sentence hearing (part heard) on 20 April 2020. Catchwords: CRIME: sentence – s 52A(1)(c) – whether momentary inattention Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1919 (NSW) Crimes (Administration of Sentences) Regulation 2014 (NSW) Cases Cited: R v Whyte [2002] 55 NSWLR 252; NSWCCA 343 Simmons v R [2020] NSWCCA 16 R v Jurisic [1998] 45 NSWLR 209; NSWSC 423 R v Thomson and Houlton [2000] 49 NSWLR 383; NSWCCA 309 R v Shashati [2018] NSWCCA 167 R v Pisciuneri [2007] NSWCCA 265 R v Pullen [2018] NSWCCA 264 R v Fangaloka [2019] NSWCCA 173 Category: Sentence Parties: Regina (Crown) Edmond Boctor (Offender) Representation: Counsel: Crown: Mr C Evans Offender: Mr G Harrison (25 February 2020) Solicitors: Crown: Ms R McEvoy (NSW DPP) Offender: Mr C Harb (Harb Lawyers) File Number(s): 2018/32365 Publication restriction: N/A SENTENCE 1. The offender pleaded guilty on the first day that the matter was listed for trial, being 5 August 2019, to the following offence under s 52A(1)(c) of the Crimes Act 1900 (NSW): On 19 January 2018, at Kellyville in the State of New South Wales, did drive a vehicle, namely a white Toyota Corolla, New South Wales registration BBU 86K, when it was involved in an impact causing the death of Mr Gordon McRandall, and at the time of the impact the said Edmond Boctor was driving the vehicle in a manner dangerous to other persons. 1. The maximum term of sentence for this offence is imprisonment for 10 years. There are no other offences. There are no Form 1 matters. There is no standard non-parole period. On the day following the entry of his plea of guilty the parties agreed to the following facts: 1. Edmond Boctor, the offender, was born in 1969. He was 49 years of age at the time of offending; 2. At about 9.30pm 19 January 2018 the offender drove his white Toyota Corolla along Arnold Avenue, Kellyville. The weather conditions were fine, there was minimal traffic present and the bitumen road surface was dry. It was night time and there was low level street lighting; 3. Arnold Avenue had an applicable sign posted speed limit of 50 kilometres per hour. The surrounding area consisted of a mixture of existing residential dwellings and residential dwellings under construction. 4. Mr Gordon McRandall, the deceased, was born in 1974. He was 43 years of age; 5. The deceased walked along Arnold Avenue in the same direction driven by the offender, on the road surface directly beside the concrete kerb and gutter. He was wearing dark clothing and had earphones in his ears to listen to music on his evening walk; 6. The deceased was passed by a separate unknown vehicle travelling along Arnold Avenue without issue; 7. The offender drove his vehicle along the sweeping right hand downhill bend toward the intersection of Arnold Avenue and Jack Peel Circuit. As he did, he looked to his right hand side of the road at two houses then under construction on Arnold Avenue; 8. As the deceased walked along Arnold Avenue, the lights of the offender's vehicle shone on him for six to seven seconds; 9. Whilst the offender looked at the houses, his vehicle maintained its straight course while the road turned to the right. The offender failed to see the deceased walking on the roadway and the front passenger side bumper and bonnet area of the vehicle collided with the deceased. The deceased was thrown onto the bonnet of the vehicle, his head impacted heavily onto the windscreen of the vehicle which caused it to shatter. The left hand bonnet area was dented; 10. The collision threw the deceased forward approximately 20 metres onto the grassed nature strip area of the left side of Arnold Avenue; 11. The vehicle continued forward and the left hand side wheels and tyres collided with the gutter and kerb and then back onto the road surface. The offender applied his brakes and caused the vehicle to skid and stop further down Arnold Avenue; 12. The offender, unaware he impacted with the deceased, looked back. He then saw the deceased on the ground near the road. The offender immediately reversed his vehicle back to the deceased; 13. The offender got out of his vehicle and rendered assistance to the deceased. He used his mobile phone to call triple-0 and requested emergency services assistance. At the direction of the triple-0 operator the offender returned to his vehicle and put hazard lights on; 14. At 9.35pm New South Wales Police and Ambulance officers arrived at the scene. The deceased was treated, stabilised and conveyed to Westmead Hospital via ambulance for further treatment of injuries. At the time the injuries were considered life threatening; 15. Police conducted a roadside breath test on the offender which returned a negative result; 16. The offender was arrested for mandatory blood and urine samples and conveyed to hospital where he provided the samples. The blood screens returned negative results for drugs; 17. Police photographed and surveyed the scene. CCTV footage was obtained from nearby residences which showed the deceased walking, the first unknown car passing and the offender's car driving and then the offender's car colliding with the deceased; 18. The offender's vehicle was examined and found to be mechanically sound; 19. At 8.15pm Saturday 20 January 2018, the offender voluntarily attended The Hills Police Station at Castle Hill. He participated in an ERISP; 20. During the ERISP, the offender made admissions to turning his attention to the two houses under construction located to the right of the road. He stated that he was looking at the dwellings for approximately three to four seconds whilst his motor vehicle was travelling at a speed of about 55 kilometres per hour; 21. On Monday 22 January 2018 doctors from Westmead Hospital spoke with the immediate family of the deceased. The family were informed the deceased was not responding to treatment nor showing signs of brain activity. At 7.30pm the family consented to the life support to be switched off; 22. The deceased was confirmed dead at 7.58pm 22 January 2018; and 23. In the course of the sentencing hearing it was further agreed that the offender's admission against interest of 55 kilometres per hour was in the context of the whole of the evidence including the CCTV, an estimate only, and that driving at the posted speed of 50 kilometres per hour was an agreed fact for the purposes of sentencing. 1. As would have been apparent to persons in the court during submissions on sentence, there is much case law on the principles of sentencing by way of full time custody, or otherwise as was sought by the defence sentence by an Intensive Corrections Order for offending of this nature. It is important that I therefore speak to the principles of law on the assessment of objective seriousness of the offending. 2. In the judgment of R v Whyte [2002] 55 NSWLR 252; NSWCCA 343, the New South Wales Court of Criminal Appeal provided a guideline for the approach to sentencing for the subject offence. That guideline is binding on this Court. The Court of Criminal Appeal also confirmed that numerical guidelines obtained from research of other cases has a role to play in achieving equality of justice, where as a matter of practical reality there is tension between the principle of individualised justice and the principle of consistency across sentencing for the subject offence. Each of the parties embraced those principles in their submissions on sentence. Guidelines are particularly significant for sentencing Courts in relation to offences such as driving in a manner dangerous. In this regard Spigelman CJ said at [145] in Whyte: "In my opinion the numerical guideline contained in R v Jurisic has proven to be significant in ensuring both the adequacy of sentences and consistency in sentencing for this offence in New South Wales. If the numerical guideline were removed then the pattern of inadequacy and inconsistency would, in my opinion, quickly re-emerge. S 52A of the Crimes Act 1900 is an offence particularly likely to be affected by personal sentencing philosophy resulting in a wide divergence of outcomes. Some sentencing judges find it very difficult to accept that a person of good character who is unlikely to reoffend should be sent to gaol, however Parliament has made it quite clear that the injuries occasioned by driving dangerously and no doubt the prevalence of the offence required condign punishment." 1. In Whyte the Court of Criminal Appeal by way of guideline provided for the "typical case" and listed its frequently occurring characteristics. They are: 1. Young offender; 2. Of good character with no or limited prior convictions; 3. Death of a single person; 4. The victim is a stranger to the offender; 5. No or limited injury to the driver; 6. Genuine remorse; and 7. Plea of guilty of limited utilitarian value. 1. The Court provided the guidance that a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement. 2. The Court of Criminal Appeal also listed what it termed "aggravating factors" to be: 1. Extent and nature of injuries inflicted; 2. Number of people put at risk; 3. Degree of speed; 4. Degree of intoxication or substance abuse; 5. Erratic or aggressive driving; 6. Competitive driving or showing off: 7. Length of the journey during which others were exposed to risk; 8. Ignoring of warnings; 9. Escaping police pursuit; 10. Degree of sleep deprivation; 11. Failing to stop. 1. The Court said: "Where the offender's moral culpability is high a full time custody or head sentence of less than three years in the case of death would not generally be appropriate. Further that an appropriate increment is required for elements of aggravation". 1. The guidelines in Whyte focus attention on the objective circumstances of the offence. In Simmons v R [2020] NSWCCA 16 at [15] to [22], the Court of Criminal Appeal confirmed that the assessment of objective seriousness is confined to the objective matters of the offending itself in context of the inherent nature of the subject offence. 2. In Whyte at [206] and [212], the Chief Justice reformulated the guideline provided by him in the earlier guideline decision of R v Jurisic [1998] 45 NSWLR 209; NSWSC 423, as he considered it necessary to do following the enactment of s 5 Crimes (Sentencing Procedure) Act 1919 (NSW) (hereafter referred to as the "CPA"). He noted in Jurisic the first element of the guideline was that: "a non-custodial sentence for an offence under s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgement." However, in Whyte, he remarked that: "S 5 CPA provides (1) a Court must not sentence an offender to imprisonment unless it is satisfied having considered all reasonable alternatives that no penalty other than imprisonment is appropriate; and (2) a Court that sentences an offender to imprisonment for six months or less must indicate to the offender and make a record of his reasons for doing so, including its reasons for deciding that no penalty other than imprisonment is appropriate." 1. The Chief Justice observed that s 5, by compelling consideration of all possible alternatives to a sentence of imprisonment, created some tension with the Jurisic guideline that non-custodial sentences should be exceptional and mostly confined to cases involving momentary inattention or misjudgement. 2. At [214] the Chief Justice provided the new first limb of the guideline to be that a custodial sentence will usually be appropriate, unless the offender has a low level of moral culpability as in the case of momentary inattention or misjudgement. The Chief Justice referred to the materiality of aggravating factors at [215] to [232] and reformulated the second limb of the guideline in Jurisic. The new guideline was: "The desired approach is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct; where the offender's moral culpability is high, a full-time custodial sentence of less than 3 years (in the case of death) would not generally be appropriate; a lower sentence will be appropriate in the sense of low-level moral culpability; in the case of aggravating factors, an appropriate increment reflecting the higher maximum penalty for the higher level of moral culpability is required in the exercise of the broad discretion, taking into account the guideline judgment as a "check" and all of the factors required to be taken into account in s 21A CPA." 1. Naturally the appropriate sentence in each case must be assessed on its own circumstances. I move now to my assessment of objective seriousness in this case. 2. Applying those guidelines to the circumstances of the present case, in my opinion, the Crown properly identified the central issue for consideration in this sentence judgment in its written submission at [31] and [32]. I understand the defence to agree with the Crown's identification of the central issue: "31. It needs to be considered whether the offender's conduct falls within 'momentary inattention' where his conduct was a deliberate decision to take his eyes off the road. 32. Here the offender has made a deliberate decision to look elsewhere other than of the road in front of him. If the offending conduct does not fall within the category of "momentary inattention or misjudgement", and I emphasise these words, it would amount to a little more than momentary inattention or judgment in the circumstances." 1. The defence's argument is that the offender's failure to keep a lookout in front of him does fall within the definition of "momentary inattention or misjudgement". I reject that submission for the reasons which will follow, but I accept the Crown's submission which fairly puts that on the facts of this case the conduct amounts to a little more than momentary inattention or misjudgement in the circumstances. 2. The offender's choice to look to the right at buildings under construction was deliberate direction of his attention to something of substance away from his direction of travel. It was not, for instance, a momentary glance down to dropped cigarette ash by a driver. In the ERISP, the offender guesstimated the duration of his attention to those buildings at three to four seconds. Under oath, he properly conceded that to be a guess. 3. I interpose to acknowledge that this evidence was against interest. The offender did not attempt to take the opportunity of limiting his looking to the side instead of ahead to only part of the period of opportunity to see Mr McRandall in his headlights. Whilst the headlights of his vehicle illuminated Mr McRandall for a time of six to seven seconds, the Crown assisted the Court by explaining that fact to be based on a review of CCTV obtained from the street, in which the illumination during the six to seven seconds was not constant. 4. Under oath, the offender said that his turning to look at buildings under construction occurred "just before I hit Mr McRandall". Again, I interpose to acknowledge that his evidence was against interest. At no point in his evidence, did the offender introduce even a hint of difficulty of line of sight to Mr McRandall, but acknowledged his failure to keep a lookout. 5. Although it was the front portion of his motor vehicle that impacted Mr McRandall at the point of the front passenger side bumper and bonnet area, the offender did not see Mr McRandall before or at impact, nor did he see Mr McRandall thrown onto the bonnet of his vehicle as it continued forward, so far that the left-hand side wheels and tyres collided with the gutter and kerb and then the vehicle came back onto the road surface. It was only then, after the offender applied his brakes and caused the vehicle to skid to a stop that the offender became aware he had impacted with the deceased. It was when he looked back and saw the deceased on the ground near the road. 6. In my opinion, those facts strongly infer to the standard beyond reasonable doubt that the offender was inattentive of the road ahead, not for a period I would accept as fitting the description "momentary". His deliberate action of looking for that period of some seconds to construction of buildings beside the road is not properly described as "inattention". Rather, it was a deliberate act, at least for part of the time. Further, those acts do not fit the description "misjudgment". The offender, driving for some seconds, without attention to the road and anything on the road in front of him, whilst driving at night in a suburban area, is conduct inherent to the very serious driving charge under s 52A(1)(c), they being the facts of his driving in a manner which was dangerous. 7. It is appropriate at this point having spoken of the ERISP and the short evidence of the incident given by the offender and of his candid evidence against interest; that I state my assessment of him as a person displaying extreme distress and deeply felt remorse for having caused the death of another human being and for the tragedy of effect of that on Mr McRandall's family. This was a case in which the Court had the opportunity to observe, as the offender gave evidence, his display of remorse. 8. When this judgment comes to subjective considerations, including the element of remorse, my finding is that I fully accept the opinions stated in the Sentencing Assessment Report, in the psychologist's report and in character references of his remorse. I would add that I observed him during reading of the victim impact statements. His demeanour was that of a person crushed by the realisation of the tragedy and loss he has caused to a decent and loving family. Separately, it is appropriate that I acknowledge the civility of the description of that tragedy and loss in the victim impact statements. They were appropriate, moving and devoid of vengeance. In this way, they reflected the true measure of the tragedy of loss of an excellent citizen, partner, father, son, brother and broader family man. 9. I return now to the assessment of objective seriousness of which considerations of remorse do not form part. 10. Whilst not a young offender he is a person of good character, an excellent family man who operates his own small business and a valuable contributor to his family, his church congregation, colleagues and friends. He is properly described as a good member of the community. Mr McRandall was not known to him. The offender, as I said, bears genuine remorse, his plea of guilty has utilitarian value. These are features of a typical case listed in Whyte. 11. The offending conduct was very brief and whilst more egregious than "momentary inattention", it remains a failure of look out to the road ahead for only a few seconds. The tragedy of course is that at the speed of approximately 50 kilometres per hour, a speed which the Crown concedes on the evidence to be not above the sign posted speed, the motor vehicle was travelling at 13.87 metres per second. In three seconds the distance travelled would have been 41.6 metres and in seven seconds 97 metres. In the context of a suburban street they are significant distances, but it is also relevant for context that it was approximately 9.30pm and but for Mr McRandall there was no other person present and only minimal traffic. The road was dry, the lighting was only low level, there was no aggravation by excessive speed, the presence of intoxication or substance abuse, erratic, aggressive or race driving or showing off. The relevant length of the duration of driving in the focus of consideration of exposure to risk was somewhere between 40 and 90 metres. 12. A precise measure of distance of intended travel was not given, however it was short. The offender was driving along the street on which he lived to retrieve his son from church. The offender did not ignore traffic signs. There is no element of police pursuit, sleep deprivation or a failure to stop; these being the aggravating factors to which the guideline judgment of Whyte directs focus. Indeed, the offender immediately attended Mr McRandall and called triple-0. 13. In the context of the range of offending to which s 52A(1)(c) applies the above facts fall to the very low end of objective seriousness for offences of this kind. I agree with the Crown's written submission at [30] in this regard. 14. Overall, his moral culpability was at the low end for this offence. Applying the first and second limbs explained above from the Court of Criminal Appeal's decision in Whyte, the objective seriousness of the offender's conduct amounted to little more than momentary inattention or misjudgement in the circumstances and would normally warrant a custodial sentence at the low end of the range for offences of this type. SUBJECTIVE FEATURES 1. The offender is 51 years of age, having come to Australia at age 23 from Egypt. He is an Australian citizen. He was educated in Egypt and there obtained a Bachelor of Hotel Management. He married in 1993 and there are three children of this relationship; Joshua aged 23, Jeremy aged 21 and Janelle aged 10. He has largely been self-employed since moving to Australia, in tobacconist and gift shops. He currently operates such a business at Rouse Hill Sydney. He has attended Hillsong church for 21 years. The report of Ms Santa Brigida, clinical psychologist, dated 28 October 2019, records the author's opinion that the offender is suffering symptoms of depression consequent of the tragedy he has caused, but otherwise has no dysfunctionality. 2. Mr McRandall's partner was Ms Leanne Wood. In the course of the hearing, the Crown tendered in Exhibit A a list of Mr McRandall's five children, including their names and ages as at January 2018. They were as follows: Lana aged 19, Gordon aged 18, Liam aged 16, Sydney aged 13, Jack aged eight. Mr McRandall had two grandchildren; Preston aged eight months, a child of Lana, and Charlotte aged 10 months, a child of Gordon. Since Mr McRandall's passing Lana has given birth to a second child Levi and Liam has since had a son. These children, of course, will never have the opportunity of knowing Mr McRandall. Mr McRandall was the second eldest of four children, his siblings being Levina, Derek and Janice. Gordon also has a stepbrother Scott. His parents were his mother Anne and his stepfather Wayne. 3. It is appropriate that I note the full details of that family and those people experiencing the tragic loss of Mr McRandall in this judgment. It is appropriate not just for the community's recognition of the measure of loss, but because that information was conveyed in this court, as I asked for it to be, in the presence of the offender. Having observed him in the witness box and having read the psychologist report and the character references; I have no doubt that he will bear the weight of the personal loss of those individuals, the unrepairable loss, of which nothing can be done to alleviate it, for the rest of his life. 4. I have given close attention to the Sentencing Assessment Report dated 4 November 2019, the opinion of Ms Santa Brigida and all other evidence including the character references. The offender is remorseful and has good insight to the impact of his offending both as to the consequence upon the victim's family and indeed upon his own family. It is significant that he has been assessed by the Community Corrections officer and by Ms Santa Brigida as low risk of reoffending; however, this of course is not outside the realm of the typical case referred to in the guideline judgment of Whyte. The state of mind of the offender was displayed by his immediately rushing to the assistance of Mr McRandall as he lay critically injured on the roadway and calling emergency services. 5. The Community Services officer reported that if sentenced by way of an Intensive Correction Order, Community Corrections will not suspend supervision while the order has an electronic monitoring or home detention condition. He would report to Hornsby Community Corrections Office for instruction as to that supervision. The report did not recommend conditions other than supervision. It assessed the offender as suitable to undertake community service work. Community Corrections can provide the equivalent of 20 hours work per month. 6. The offender has no antecedent criminal history. There are no s 21A CPA matters, the nature of which is not inherent to the offence and considered above. 7. After careful consideration of his antecedent driving record I assess it as, whilst not disentitling him to leniency, leniency should be qualified to some degree because prior to 12 years before the subject incident he was breached for traffic offences sufficiently that he was given a warning of suspension of licence. 8. I return to the topic of plea. The offender did not enter his plea of guilty at the first available opportunity, but rather when the matter was listed for trial on 5 August 2019, as I have said. Both the Crown and defence submit a utilitarian discount according to the principles of R v Thomson and Houlton [2000] 49 NSWLR 383; NSWCCA 309 of 15% is appropriate. I accept that discount of 15% and in the circumstances of the case find it in accordance with the principles stated in that guideline judgment. 9. The offender has spent no time in custody. He has not been on bail. According to the usual provision for automatic suspension, his licence has been suspended for over two years. NUMERIC CONSIDERATION 1. In accordance with the guideline judgment of Whyte, substantial attention in the sentencing hearing was directed to consideration of sentence in other cases. There are six authorities referred to in Annexure A of the Crown's written submissions which were considered. I do not list them here. 2. I was directed to the JIRS statistics. 3. I have had regard also to the decisions of R v Shashati [2018] NSWCCA 167, R v Pisciuneri [2007] NSWCCA 265 and R v Pullen [2018] NSWCCA 264. 4. In assessing the appropriate sentence I have given close regard to purposes of sentencing listed in s 3A CPA. 5. The defence relies heavily on the Court of Appeal decision in Pullen. The defence submits that this is an appropriate case for sentence by way of Intensive Correction Order in the alternative to full-time custody on the basis of that decision. 6. The defence concedes that the s 5 CPA threshold has been crossed. I concur with that concession. 7. Pullen is distinguishable on the facts from this case. In that case, the Court of Criminal Appeal, on a re-sentence of the very serious but lesser offence of drive in a manner dangerous cause grievous bodily harm, ordered sentence by Intensive Corrections Order. 8. In particular, the offender in Pullen was assessed to be of low to medium risk of reoffending, whereas the offender here has been assessed as of a low risk. This is particularly relevant to the s 66 CPA expressed concern for protection of the community which was considered carefully in Pullen and most recently with further reference to the principles set out in Pullen in R v Fangaloka [2019] NSWCCA 173. Another important distinguishing feature to Pullen is that here the offender is not a person of deprived upbringing and youth, and the subjective case here is, in my opinion, not as strongly in favour of alternative sentencing as for Pullen. In that case it was considered that full-time custody was likely to crush the obvious rehabilitation achievements of the offender between the time of his offence and the time of his sentence. 9. However, I return to the important fact that the assessment of the offender here is of low risk of reoffending and this is, I repeat, a distinguishing and important factor. On the evidence provided to me there is nothing to suggest that the offender here would represent a risk of reoffending to the community. That however does not diminish the above-stated guideline principles that offending of this nature warrants careful consideration of general deterrence. 10. In consideration of the instinctive synthesis which a court is required to perform, I take into account the following considerations pursuant to s 3A CPA: the need to ensure that the offender is adequately punished; that this offence attracts a weighty consideration of general deterrence for the offender and other persons from committing similar offences when driving motor vehicles; to make the offender accountable for his actions and to denounce his conduct in the offending; and to recognise the harm done to Mr McRandall and his family and the community by the loss of his life. 11. Pursuant to s 5 CPA, a court must not sentence an offender to imprisonment unless it is satisfied, having considered all reasonable alternatives, that no penalty other than imprisonment is appropriate. There is nothing in s 66 CPA which favours an Intensive Corrections Order over imprisonment by way of full-time custody, R v Fangaloka supra. 12. In my opinion, after applying the 15% discount, an appropriate indicative maximum sentence is imprisonment of one year and ten months. 13. Pursuant to s 7 CPA, the Court has a discretion to make the more lenient order for sentence, that it be served by an Intensive Corrections Order in the community, pursuant to s 66 CPA, as explained by the Court of Criminal Appeal in each of Pullen and Fangaloka, but particularly in the latter decision at paragraph [66]. The "paramount consideration" for community safety provided for in s 66 CPA, when deciding whether or not to make an Intensive Corrections Order, means that the Court is not to assume that full-time detention is more likely to address a risk of reoffending than a community based program of supervised activity, in the context of considering the purposes of sentencing set out in s 3A CPA. 14. A sentence by way of an Intensive Corrections Order is a form of custodial penalty. Accepting that the imposition of an Intensive Corrections Order represents some degree of leniency, it remains in the position of a substantial degree of punishment, which degree of punishment and denunciation of the offending can be increased so as to adequately meet the moral culpability of the offending and the subjective circumstances of the offender, as well as the benefit of the community on consideration of s 3A CPA, by imposition of conditions. An Intensive Corrections Order is intended to be, and will be, burdensome. The conditions are onerous and any breaches are likely to have dire consequences, Pullen at paragraph [30]. 15. In this regard, the Crown indicated to the Court that it could consider home detention as a condition of an Intensive Corrections Order. 16. A special circumstance to be weighed in this case is that the offender, being a person of middle age, is on all the evidence an excellent member of the community, a family man running his own small business, and for whom full-time incarceration would be his first experience. Another special circumstance is that his roles in life, as they are indeed apparent on the evidence and not least from the report of the clinical psychologist and the character references; support the defence's submission that rehabilitation best serves the community and that the community would indeed be best protected by the offender living within it whilst aware, through his remorse, of the consequences of his actions, and whilst burdened with that awareness also under strict conditions of an Intensive Corrections Order. 17. Taking into account the importance of general deterrence, and the low level of moral culpability of the offender in this case for offending of this type, after applying the principles set out in Whyte and having considered the purposes of sentencing set out in s 3A CPA, in my opinion sentence by way of the imposition of an Intensive Corrections Order for a period of one year and ten months, with the conditions with which I refer to below, is appropriate. ORDERS 1. The orders I make are as follows: 1. The offender is convicted; 2. I grant bail on the following conditions: 1. The offender is to attend court as and when required; 2. The offender is to attend Community Corrections, Hornsby office on 5 March 2020 or as otherwise directed by Community Corrections; 3. The offender is to comply with all reasonable directions of Community Corrections; 1. I direct a Home Detention Assessment Report be obtained; 2. I indicate that pending the further Home Detention Assessment Report being received, the intention of the Court is that the offender be sentenced to a term of imprisonment of one year and ten months to be served by way of an Intensive Corrections Order, commencing on a date when the Court has before it that report with conditions of home detention pursuant to the Crimes (Administration of Sentences) Regulation 2014, Regulation 189, save that such detention is not to apply during the hours of his work in his tobacconist, gift shop business and that the offender is to perform 250 hours of community service work; 3. I indicate that it is the intention of the Court that when the matter is returned following receipt of the Home Detention Assessment Report that the offender be disqualified from holding a New South Wales Driver's License and from operating a motor vehicle on the roads of New South Wales for a period of 4 years commencing 19 January 2018 and ending 18 January 2022; 4. I return the matter before me for sentence hearing (part heard) on 20 April 2020. ********** 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: 13 March 2020