R v Bird

[2019] NSWDC 675

District Court

New South Wales

Medium Neutral Citation:	R v Bird [2019] NSWDC 675
Hearing dates:	8 November 2019
Date of orders:	15 November 2019
Decision date:	15 November 2019
Jurisdiction:	Criminal
Before:	Judge Priestley SC DCJ
Decision:	Taking into account matter on a Forms 1 sentenced to an aggregate term of imprisonment for 4 years with a non-parole period of 2 years. Make a compensation order in the total amount of $14,259.
Catchwords:	CRIMINAL LAW – Sentence - Forms 1 – Dishonestly obtain property by deception – Dishonestly obtain financial advantage – Fail to appear in accordance with bail undertaking – Larceny – Aggravation - Unsophisticated offending - Offences committed to support drug habit – On conditional liberty at time of offending – Sad and traumatic upbringing -
Legislation Cited:	Crimes Act Crimes (Sentencing Procedure) Act Criminal Procedure Act Bail Act
Cases Cited:	R v Price [2016] NSWCCA 50. Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR
Category:	Sentence
Parties:	The Crown Daniel James Bird
Representation:	Solicitors: Director of Public Prosecutions – The Crown Legal Aid Commission – The Offender
File Number(s):	2018/00189058

Judgment

Introduction

1. Daniel John Shiels, aka Daniel John Bird, a name he prefers, appears to be sentenced on a total of 14 charges. Six of those charges are for sentence following committal (“the committal matters”) and eight are to be dealt with pursuant to sections 166 and 167 of the Criminal Procedure Act in that they are to be dealt with by way of what is referred to as summary sentencing with this court exercising the limited powers of the Local Court (“the summary matters”). In addition in relation to one of the committal matters and one of the summary matters there are two separate form one matters to take into account.

2. The Crown material was contained in a bundle which became exhibit A.

3. Tab six of exhibit A sets out a lengthy recitation of the agreed facts running to some 15 pages. There is a certain similarity to a significant number of the charges and the agreed facts can be adequately recorded by describing the offender’s main modus operandi and then by setting the matters out in a table to identify the more significant particular aspects of the offences. In a hopefully informative way I propose carrying out my assessment of the objective seriousness of each offence in the table following setting out the facts of each offence. In the Crown sentencing bundle which became exhibit A committal matters were numbered one to six and the summary matters in a following list were numbered one to eight. In the below table the left-hand column refers to the committal offences by number only and the summary offences by the letter S followed by the number corresponding to exhibit A. The reference to F1 and F2 is a reference to the two form ones. Sequence numbers and H references were also referred to in exhibit A but the reference to the counts as just described will adequately identify the respective offences.

4. 11 of the matters, being all of the six committal matters, one Form 1 matter and four of the summary matters are charges under section 192E, and in nine of those matters the method of operation of the offender followed the same pattern. That pattern was to express interest in the purchase of a motor vehicle that was for sale whether through a dealer or a private individual, to then agree a price to purchase the vehicle, and to then suggest that payment occur by way of an electronic transfer whether by way of a phone or the use of the victim’s computer and, when that was done, to then show a so called receipt from the bank to the vendor. Although the document thus created indicates receipt it also indicates the money will not be transferred for two or three days and in the meantime the transaction is either cancelled by the offender or there is simply not money there to satisfy the transfer. The Crown fairly submits that none of these matters was terribly if at all sophisticated but does submit they were planned. I would accept both those submissions. As to the lack of sophistication the basis for that is that the offender used his own name, his own driver’s license as a means of identification when necessary, and often used his own bank accounts. Whether he knew it or not he was also on occasion clearly being subjected to filming on a CCTV system and on one occasion was expressly requested and agreed to being photographed. For the offender it is said this shows an inevitability of being caught which frankly must be true. It was also said for the offender that this showed the offender was not thinking rationally though this is something for subjective consideration. The offender accepts there is a degree of planning and says the offending is thoroughly unsophisticated.

5. The parties were agreed as to the matters to consider in assessing the objective seriousness of the offences, with the focus being on the s192E offences. In addition to the issue of planning just discussed, it is relevant to consider the maximum sentence which for the s192E offences is 10 years imprisonment, the amount of money involved, the period of time of the offending, and motive. As to this last matter, there is no real argument but that the offending was carried out to fund a drug habit. As to the period of the offending, the earliest of the offences being sentenced occurred on 7 April 2018 and the latest on the 9 January 2019. This tends to mislead; the offender was in custody from 30 April 2018 to 9 October 2018, and then in a residential rehabilitation facility from 9 October to 29 October 2018 when he breached his parole conditions and left that facility. In effect there are two discreet periods of offending; 7 to 23 April 2018 and then 30 October 2018 to 9 January 2019. The particular variables of the s192E matters are therefore the amounts involved, and the general circumstances of the offending, which largely amounts to the identity and vulnerability of the victim.

Schedule of offences: Facts and objective seriousness

Count	Facts & objective seriousness	Date of Offence
1	The offender responded to an ad of a private car seller on the website Gumtree. The car was a Commodore; the “price” (as to what “price” may mean, see [28] re count one below) agreed was $10,000. The offender used his phone to “transfer” this money, and showed a “receipt”, though that document refers to “Payment Scheduled” and in the details states “When” and gives the date of Monday 9 April 2018. This is the recurring “trick” of the offender on his victims; the formality of the engagement of the bank’s system and a document supporting that, which read less than diligently gives the victim comfort. The transfer then never occurs. In this instance there were subsequent phone calls where the offender lied to the victim to delay exposure of the crime. Within days the car was recovered, but not before being damaged in a police pursuit, though this is a separate matter relevant to the question of compensation. The cost of repair is not known. Given the maximum sentence, the fact of recovery of the car, the unsophisticated nature of the crime and the modest but not insignificant amount of money involved, I accept the submission for the offender of an assessment of objective seriousness as being below the mid-range. But for the victim being a private seller the assessment would have been lower.	07.04.18
2	In this count the offender perpetrated his above described “trick” on a car dealership. The vehicle was a Mercedes and the agreed “price” was $17,000. The “transfer” was affected by the use of the victim’s own computer. The agreed fact is however that the offender told the vendor the money would be received in two or three days into their account, so there was not the same element of deception as with count 1. This occurred on 13 April. On 14 April the offender purported to sell the car to his friend for $10,000 cash. So whilst on one view the fraud is of the asserted value of the car, the benefit to the offender is less than that. The first of the form 1 matters (see next row) is to be taken into account with this offence in terms of sentencing. Assessing the objective seriousness of count two however, I consider it to be less serious than count one due to no deception re the “receipt”, though clearly there remains the clear deception of a (false) intention to pay, and the nature of the victim. I would assess it in the low range.	13.04.18
F1	This is an offence under s154F Crimes Act of stealing a motor vehicle with a maximum penalty of 10 years. The offender, having obtained the car the subject of count two, and having “sold” it to a friend for $10,000, then deceives the friend into giving him the keys whereupon the offender steals the car giving rise to this charge, before apparently again selling the car, this time to Premier Auto Sales on 16.April18. The car was located within days, and is apparently undamaged, though there is now a three cornered dispute as to ownership. I would assess the objective seriousness of this offence as low.	14.04.18
S1	The offence here is in breach of s79(1) of the Bail Act of failing to appear at court whilst on bail. This was the day after the offender left the rehabilitation clinic his bail conditions required him to attend. The offender had been represented in court the day before, on 29 October. The unchallenged reason for the offender leaving the facility was that he asserts he was assaulted, that someone came into his room and that he was kicked down a flight of stairs, and a brick was thrown at him. The offender asks those circumstances be taken into account. In the absence of any challenge to those facts I accept them favourably to the offender. The maximum penalty for this offence is three years imprisonment and / or a $3,300 fine. The offender admitted he left the rehabilitation centre located at Nowra and made his way back to Queanbeyan, which is where the court was. Ideally the offender should have appeared or arranged representation. There is in my view a touch of unreality to expect that to happen. The offender’s conduct shows a fairly blatant disregard for the law; it is not an opt in or opt out situation he finds himself in. There was some confusion in the offender’s evidence as to whether he knew he needed to attend, however the fact of failing to appear is agreed, and in his evidence he did not appear to protest ignorance; he simply did not go. For these reasons, whilst I assess the objective seriousness to be low, I reject the submission that proceeding by way of s10A is appropriate.	30.10.18
3	On this occasion the vendor was a motorcycle dealership in Coffs Harbour. The goods involved were a Ducati motor bike plus a helmet and jacket. The total agreed price was $12,190. The offender on sold the motorbike for $6,000 and the bike was recovered when the victim paid that amount to the next buyer, also a dealer. The helmet and jacket were not recovered. The same transfer trick was adopted, and the dealer’s computer was used. As well as using his own bank account details the offender used his own driver’s license to provide identification. In all the circumstances and in line with the earlier discussion, I assess the objective seriousness as low.	23.04.18
4	The victim here was a motorcycle dealership in Bega. The offender and victim agreed a price for a 2013 motorbike including a helmet and jacket of $7433. The usual transfer trick was used. The offender’s driver’s license was photocopied. The “receipt” is headed “payment scheduled”, again confirming the lack of sophistication of this scam, though unlike earlier transactions the “transfer” was from an account not in the name of the offender. The offender later lied to prolong discovery of the fraud. The offender then sold the bike to another dealer for $3000-$3500. No compensation is sought, suggesting some form of recovery. This count is very similar to the earlier counts involving dealers, with the different account name making it slightly more serious, but not markedly so. The amount involved is again modest. I assess this as being in the low range of objective seriousness.	02.11.18
S2	This is a fine only offence of riding unlicensed. It was submitted it was a necessary consequence of committing count four. It was also submitted that the offender already has a large debt to the state debt recovery office, and I would add will have compensation orders made here. I accept the submission that it is a consequence of offence four and will proceed by way of s10A. I consider it to be of a low level of objective seriousness.	02.11.18
F1	This matter is another breach of s192E and is to be taken into account when dealing with S3. The victim was a dealer, and the same method is adopted, though this time involving the offender’s partner. The vehicle was a Holden utility and the agreed price was $15,990. The offender used his own license. The victim was alive to the delay in the transfer, so a contract was entered, and then the offender left with the car. No payment eventuated, and the offender again lied about the delay. The car was recovered from a Bunnings car park after, on the agreed facts, breaking down, or on the oral evidence of the offender, with him having realised the error of his ways. Sadly it is hard not to conclude the agreed facts are correct. Given the total recovery, I assess the objective seriousness of being low, and I do take it into account when sentencing for offence S3.	18.12.18
S3	This offence involved a dealership at Albion Park. The offence occurs the same day as the Holden utility offence. There were two vehicles involved, a 450cc motor bike, and a 50cc motorbike, and some accessories. The agreed price was $14,259.85. The electronic “transfer” method occurred, possession of the items given, and the transfer was later cancelled. The offender was captured on CCTV. The goods were placed in the utility. This is brazen offending, and almost the equal of the Mercedes incident and I assess it as being in the high low range of objective seriousness. The assessment is tempered by there being a significant recovery, as indicated by the fact compensation of $2259 is sought	08.12.18
S4	This is another s192E charge, but with a different modus operandi, for here the offender pawns one of the two motorbikes deceptively obtained from Albion Park, for some $3000. I reject the submission that the representation of the bike being his somehow lessens the seriousness of the offence. That said, the amount involved is small, and I assess the objective seriousness as low.	08.12.18
S5	This was another s192E offence using the same MO. Here it was a private vendor using Gumtree. The offender used his own driver’s license in the transaction. The agreed price was $7500 for a Holden utility which the offender sold on for $4500. The vehicle was recovered. I assess the objective seriousness as in the low range.	12.12.18
S6	This is another s192E offence adopting the familiar MO. The goods were two motor bikes and a helmet for a total price of $12,848. One bike was pawned for $300 and recovered and the other was sold “for drugs”. Again I would assess this as being in the low range of objective seriousness	17.12.18
5	With one additional fact, this offence adheres to the familiar MO. The additional fact is the offender had made arrangements to pawn the vehicle in question before he had obtained possession of it, so this offence more clearly demonstrates what was occurring in some of the other matters, ie, deceptively obtain a good of some value, and then realise some part of that value through pawning the good. Here the vendor was a private seller, who apparently missed the “payment scheduled” part of the receipt, effected on an account in the offender’s name, and the price was $17,000. The offender then attends the pawnbroker, has his photo taken, and obtains $7000. I would assess this as being in the most serious category of the offences being considered, and assess it in the high low range of objective seriousness.	31.12.18
S7	The offence is a breach of s527C(1)(d) Crimes Act, to give custody of unlawfully obtained goods, and the facts are those just recounted in giving the vehicle to the pawn broker. The maximum sentence is six months and or a $550 fine. Based on the maximum sentence, it was submitted the objective seriousness of the matter is more than low. I accept that but also note any sentence needs to view this charge with count five, given the planning of S7 in advance of committing count five.	31.12.18
6	The victim was a private vendor using Gumtree; the good in question was a Honda motor bike and the “agreed” price was $7250. The “receipt” states the amount “will” be transferred. This never happened, and despite what the offender told police on his arrest, plainly was never going to happen. The offender was arrested two days later and the bike was able to be returned to the victim. I would assess the objective seriousness as low.	09.01.19
S8	This is the same offence, ride unlicensed, as S2 above, and is a fine only offence. I accept the submission for the offender which I take to be the same as for S2. The offence is minor, and I will adopt the s10A approach.	09.01.19

6. In considering the above matters it is difficult not to have a sense of frenetic desperation as to their commission. The events occur quickly, some on the same day. The short term gain nature of them, coupled with almost certain detection and apprehension, bears out that their purpose is to obtain funding for the offender’s drug habit. That motive is deplorable, not to mention sad, and in the view I take of the facts of this matter overall, adds weight to the views I have expressed above as to objective seriousness.

7. On arrest the statements made by the offender were a mix of untruths, as to his intent to make payment for the most recently obtained motor bike, and truths, namely of his need to fund his habit and that he was acting in desperation. That is consistent with how he appeared in the witness box. The impression he made there was of a man desperate to leave prison, which is understandable in any case, and more so given he is in lock down for his protection 22 hours per day. But also it must be said, it was hard to escape the likelihood that the offender was also desperate for some drug induced refuge. The offender recognises the need to escape addiction, but also seems to be resigned to it being inescapable without some serious intervention.

Subjective and other matters

8. The Crown accepts the offender has the benefit of the full discount of 25% for the utilitarian value of his guilty pleas.

9. The offences were all committed either whilst the offender was on some form of conditional liberty or whilst he was in breach of parole conditions. Bail was in fact revoked on 18 November 2018, so strictly speaking the offences committed thereafter were not committed whilst on bail. That fact does not assist the offender, who of course remained at large having breached his bail conditions. The offender fairly acknowledged this. The offending therefore has an element of aggravation which I take into account.

10. The Crown submits that the total “value” of this offending is some $141,000, being the value of the frauds calculated using the “agreed” prices, which as noted above may well not be the market price. The offender submits that the benefit of the fraud to the offender should be noted. For example, in respect of count five this would give a figure of $7000 rather than $17,000. Overall this approach would reduce the $141,000 figure to something like $40,000. The approach I take is that the Crown’s larger amount, all other things being equal, is the more relevant guide to assessing the seriousness of the matter, but that the lesser value argued for by the offender is a relevant figure in considering the offending overall. It demonstrates the motive of funding the drug habit. It highlights the lack of sophistication. These are matters already considered, from both points of view, in the above discussion, and should not be taken into account again.

8. A significant matter relied on by the offender is the tragic death of his three year old child in March of 2018. The offender says, and was not challenged otherwise, that his reaction to the grief he experienced upon learning of his son’s death was to seek comfort in drugs. There is thus the offending in the April period, the first of the two discrete periods referred to above. The logic of that explanation dissipates as time passes, and the further offending from November 2018 to January 2019 is not so readily explained.

9. The criminal history is lengthy, and begins from adulthood. Almost from the beginning there were offences of stealing and obtaining financial advantage by deception. In 2005 a prison sentence was appealed and became a supervised bond involving drug and alcohol counselling. Fourteen years later and the same difficulties are apparent. The criminal history is made up of driving offences, drug offences, dishonesty offences, offences of violence and repeated failures to appear. In February 2016 a large number of dishonesty offences from it seems 2013 and 2015 were dealt with by way of an aggregate sentence of three and a half years with a non parole period of two years, expiring on 20 November 2017. Four months later, the same offending recommences, the catalyst being the death of his son. Consistent with the assertions of the offender is the absence of offending of note in the period 2008 to 2011, a time he says he was off drugs. The offender recognises he must regain a drug free state to escape the cycle he is on. The circumstances of his recommencement of offending after 2011 are not clear.

10. The offender relied on a report of Bradley Jones, a forensic psychologist, dated 30 October 2019. The personal history of the offender is sad and traumatic. He swore what he told Mr Jones was true, and he was not challenged as to his history. The offender was assaulted by his mother, his father was an alcoholic and distant, he was sexually assaulted by his brother, and he heard his teenage sister being sexually assaulted by the mother’s boyfriend. The offender asserts, and there was no challenge, that the person, whom he named, sexually abusing his sister in the room next to his was years later charged with sexual assault and murder. The offender was kicked out of home at 13, and by stealth slept in a storage shed under the house. He moved from the country to Sydney and lived for a time in Mosman and had help from friends, though precisely what age he was when he ultimately left home is not clear. By his early teenage years his drug use was high and by 17 it had progressed to methamphetamine, which was the drug he was funding from the present offences.

11. Whilst in prison in 2017 at Dawn De Loas (it may have been 2018 going by the custody record) the offender was badly assaulted, being stabbed twice and suffering a broken eye socket. Since then he has been on “limited association” which means locked up alone 22 hours a day.

12. The psychologist gave a provisional diagnosis of PTSD, substance use disorder, and suspected child abuse. The offender was assessed at a medium to high risk of reoffending. A programme to assist in minimising the risk of recidivism (not only as to offending, but necessarily of relapsing into drug use) was set out at page 10 of the report. This involves assessment, CBT therapy, rehabilitation programmes, but most important of all, hopefully assisted by the foregoing, abstinence.

13. The offender is still only 33, yet he has plainly had a tragic life. More misfortune has befallen him than does most other people. The offender recognises he needs help. The offender is prepared to do whatever course or counselling is offered him. As was submitted for him, he has shown remorse; in his ERISP interview, by his early plea and by his evidence. He agrees to pay compensation, and seeks guidance as to his counselling and rehabilitation.

14. The current circumstances of the offender appear inhumane, though no criticism of the limited association was made, presumably because the offender needs protection. There was no evidence as to him being any more or less at risk outside of gaol. In my view, despite the prolonged and significant anti-social behaviour, the sentence to be imposed should be designed to provide the offender assistance. The difficulty is charting a way to do that whilst recognising the purposes of sentencing set out at s3 of the Crimes (Sentencing Procedure) Act, and also bearing in mind the task of dealing with both the committal and summary matters in accordance with the relevant legislation. The most recent offending has not been violent, but it does reflect a total disregard for the entitlement of people to be able to go about their commercial activities without fearing they will be tricked out of their property or money. The offending results not only in loss to people, but in these cases has spawned at least two further likely pieces of litigation as innocent parties duped by the offender argue over who ends up with the relevant car. The need for specific deterrence is clear, but drug related offending is not the type of offending that readily heeds punishment, and the subjective features of the offender make him less than usually suitable for general deterrence.

15. The amendments to the Crimes (Sentencing Procedure) Act in late 2018 recognised that community safety is not achieved simply by incarceration, and indeed that may have the opposite effect. The amendments I refer to related to ICOs. No submissions were initially made to this effect, and it was conceded that the s5 threshold had been crossed, and the Crown suggested to so treat this matter would amount to appellable error. That course would also have some danger for the offender given it may simply set him up to fail. As noted above, the more than a hint of desperation I detected in the offender caused me concern that an early release from prison may result in a return to prison far quicker than any ICO based punishment would intend.

16. The other course is to impose a full time custodial sentence, with an allowance for special circumstances. In my view there are special circumstances in this case. The need for rehabilitation is clear, and the “limited association” conditions should be minimised as far as possible. Further I accept the submission for the offender that the offender is at risk of institutionalisation.

17. I also accept the submission for the offender that the start date of any sentence should reflect that not only has the offender been in custody solely referable to these offences since 16 July 2019, but that in two broken periods commencing 20 August 2018 totalling approximately 8 months he was bail refused as well as serving the balance of the earlier parole period. Accordingly the start date shall allow for 50% of that time, so that it will be four months prior to 16 July 2019, namely 16 March 2019.

18. I propose proceeding by way of an aggregate sentence. This is an available approach when dealing with both committal and summary matters as is being done here; see R v Price [2016] NSWCCA 50. The sentences that I will impose are within the constraints of the Local Court jurisdiction set by s58 and s53B of the Crimes (Sentencing Procedure) Act , and even more so when the matter is viewed in combination with the committal offences. The aggregate sentence takes into account the principles of proportionality and totality.

19. Lastly before setting out the indicative sentences, assessing the aggregate sentences and making the appropriate orders, I note that in respect of the two Form 1 matters, it is important that the focus remains on the principle offences for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ. In this case the sentence for count two will reflect the first Form 1 matter, being the stealing of the same car the subject of count two the very next day, and which can be viewed as one course of offending. Similarly with summons matter number three the sentence will reflect the offence relating to the utility, which was then used to transport the two motor bikes involved in summons matter three; again this can be viewed as a stream of offending.

20. For all of the above reasons the following are the indicative sentences, with allowance having been made for the 25% discount for the guilty plea:

Indicative sentences

Count	Description of offence	Indicative	Date of Offence
1	Re Commodore, private vendor, and purported 10K transfer; vehicle recovered, but damaged	6 months	07.04.18
2	Re Mercedes from dealership and purported 17K transfer, and taking into account Form 1 matter of larceny	12 months	13.04.18
3	Ducati bike, helmet and jacket from dealership; approx 12K; bike recovered at cost of 6K	6 months	23.04.18
4	Re motorbike, helmet and jacket from dealer; “price” of $7443; phone calls to delay detection;	3 months	02.11.18
5	Re Commodore from private vendor and “price” of $17,000, with prior call to pawn broker; offending related to summons matter 7; vehicle recovered	12 months	31.12.18
6	Re Honda motor bike with “price” of $7250; private vendor on Gumtree. Bike recovered	3 months	09.01.19
S1	Failure to appear	1 month	30.10.18
S2	Ride unlicensed	10A	02.11.18
S3	Re 2 motor bikes from dealership and “price” of $14,289. Also takes into account form 1 matter of s192E offence re utility from a dealer. Apparently some recovery given compensation sought of $2259	9 months	08.12.18
S4	Further s192E offence where one of the two S3 motor bikes (that is not his) is hocked for 3K	2 months	08.12.18
S 5	Re Holden utility and private vendor through Gumtree for “price” of $7500, onsold for $4500, and recovered	4 months	12.12.18
S6	Re 2 Yamaha motor bikes and helmet with vendor a motor dealer; the 50cc was pawned and he sold the 250cc for drugs	6 months	17.12.18
S7	Giving custody of unlawfully obtained goods (being those of count 5); has a max sentence of 6 months	1 months	31.12.18
S8	Ride unlicensed	10A	09.01.19

24. Pursuant to s53A, there will be an aggregate sentence of 4 years, commencing on 16 March 2019 and expiring on 15 March 2023.

25. There will be a non-parole period of two years commencing on 16 March 2019 and expiring on 15 March 2021. This will leave a balance of term of two years.

26. The lengthy balance of term reflects my reasoning set out above. I recommend that so far as possible the offender be assisted on parole with all appropriate counselling and rehabilitation programmes, including residential rehabilitation, as may be available to assist in treating his drug addiction, and also the traumatic events of his childhood.

Compensation orders

27. The Crown seeks orders for compensation in respect of some but not all of the offences. The following table identifies the offences for which compensation is sought and for how much, the amount that is awarded and the reasons therefore. The offender gave evidence that he expects to have the funds to make some payment and is enthusiastic in his promises to do so, though any objective assessment would conclude the likelihood of that happening voluntarily must be very guarded given the history of the offender to break promises for payment when it is to his advantage.

28. The following table sets out the compensation orders that will be made in respect of those offences where a compensation order was sought.

Count	$ Sought	Reasoning	Order
1	$10,000	The victim was returned a damaged car within days of the offence. $10,000 is what the victim agreed his car was worth. Even that is not a market value given the purchaser was not bona fide and did not intend to pay. There is no evidence beyond this non bona fide purchase agreement of value either pre or post damage. The reality is the court is left to either make no order for lack of evidence, or accept that the damage to the car, regardless of its worth, would require repair, and perhaps take judicial notice of the notoriety of the cost of such repairs, and make an educated estimate. I will take this approach and doing so I arrive at $3000.	$3000
3	$6,000	This is the amount the victim paid to recover the bike, and the amount sought will be allowed	$6,000
S3	$2259	Re 2 motorbikes. There was a partial recovery and the initial “agreed” price was $14,259, so that the amount sought appears appropriate	$2259
S4	$3,000	This was the amount obtained from the pawn broker and should be recovered in full	$3,000
TOTAL		$14,259

Orders:

29. Mr Bird, of the 6 committal offences and 8 summary offences you are convicted. I have set out the indicative sentences above, and have taken into account where appropriate the two Form 1 offences.

30. In respect of those and pursuant to s53A, there will be an aggregate sentence of 4 years. The sentence will commence on 16 March 2019 and expire on 15 March 2023.

31. There shall be a non-parole period of 2 years, commencing on 16 March 2019 and expiring on 15 March 2021.

32. The earliest date you are eligible for release is 15 March 2021.

33. The offender is ordered to pay $3000 out of his property by way of compensation to Simon Lee, such sum in the first instance to be paid to the Registrar, District Court, Sydney.

34. The offender is ordered to pay $6000 out of his property by way of compensation to Kasdell Pty Ltd t/as North Coast V-Twins, such sum in the first instance to be paid to the Registrar, District Court, Sydney.

35. The offender is ordered to pay $2259 out of his property by way of compensation to Carr Brothers Motorcycles; such sum in the first instance to be paid to the Registrar, District Court, Sydney.

36. The offender is ordered to pay $3000 out of his property by way of compensation to Cash Converters Shellharbour; such sum in the first instance to be paid to the Registrar, District Court, Sydney.

37. Following the pronouncement of the above orders, reference was made on behalf the offender to the operation of s18B of the Drug Court Act 1998. By that provision it is the duty of the Court to ascertain whether the offender is an eligible convicted offender and if so to refer the offender to the Drug Court to determine whether the offender should be the subject of a compulsory drug treatment plan. After an exchange between counsel and myself it was determined that the offender is not an eligible convicted offender as his balance of non parole period is 16 months and therefore less than the required minimum of 18 months. There was brief debate as to whether there was a legitimate means to create a situation of eligibility, but ultimately no submission was made, and the offender’s representative Mr Spohr is to be commended for his frankness. That said, my reasons emphasise the need for rehabilitation, and include a recommendation for assistance. The heavy caseload of the Drug Court is well recognised. Nevertheless I emphasise my earlier recommendation and exhort those who are responsible to consider the offender for the compulsory drug treatment plan spoken of in s18B, not only for the reasons stated in these reasons, but because the offender clearly comes within the eligibility criteria of s5A but for this two month shortfall.

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Decision last updated: 20 November 2019