R v Bower

[2022] NSWDC 559

District Court

New South Wales

Medium Neutral Citation:

R v Bower [2022] NSWDC 559

Hearing dates:

Monday 16 May 2022

Date of orders:

Tuesday 17 May 2022

Decision date:

17 May 2022

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

Substantive offence:

1.  The offender is convicted.

2.  He is sentenced to a non-parole period of 2 years and 6 months with parole thereafter of 2 years and 6 months, giving rise to an overall term of imprisonment of 5 years.

3.  Form 1 offence taken into account.

Section 166: Related Offence:

4. The offender is convicted pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, no further penalty.

Catchwords:

CRIME — Drug offences — Knowingly take part in supply of large commercial quantity of prohibited drug cocaine — One substantive offence — One related offence of supply prohibited drug alprazolam — Offender pleaded early and entitled to full discount — Drugs found during execution of police search warrant — DNA and fingerprint evidence obtained — Offender was involved in offence for financial gain — Offender was in the low level of drug supply hierarchy — Offending toward bottom of the range — Offender’s criminal history is not significant — Offender has good prospects of rehabilitation — Offender has demonstrated genuine remorse and contrition — Issues created by multiple charges referred via EAGP scheme — Legislative amendment suggested to enable changes to charge certificate in District Court for minor amendments.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW): s 10A;

Criminal Procedure Act 1986 (NSW): ss 66(1), 166;

Drug Misuse and Trafficking Act 1985 (NSW): s 25(2);

Poisons and Therapeutic Goods Act 1966 (NSW): s 16(1).

Cases Cited:

Parente v R [2017] NSWCCA 284;

R v Clark (unreported NCSW 15 March 1990)

Category:

Sentence

Parties:

Regina (The Crown)
Christopher Bower (The Offender)

Representation:

Counsel:
Mr. G. James QC (The Offender)

Solicitors:
Mr. W. Bruffey (The Crown)
Mr. S. Joyner (The Offender)

File Number(s):

2020/00310620

Judgment

1. HER HONOUR: The offender Christopher Bower is before the Court for sentence on one substantive offence pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the Act”) of knowingly taking part in the supply of a large commercial quantity of the prohibited drug cocaine. The quantity the subject of this charge is 1,968.3 grams. The maximum penalty for this offence is life imprisonment and there is a standard non-parole period of 15 years. He asks that when sentencing him for this offence, I take into account one additional offence contrary to s 25(1) of the Act of supplying the prohibited drug alprazolam. If sentenced separately, that would carry a maximum penalty of 15 years imprisonment. It is brought as a deemed supply offence and involves his having possession of 31 bottles of alprazolam 2mg tablets. Each of which contained 50 tablets. This drug is sold under the commercial name Xanax.
    

2. For reasons that in my view escape logic, there is also a separate offence forwarded to this Court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) to be taken into account as a related offence and dealt with separately following this sentence. It is a charge pursuant to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW) of possessing a restricted substance, diazepam sold under the brand name Valium. This offence carries a maximum penalty of 6 months imprisonment. It is very difficult to understand why this Court is being asked to deal with this offence separately as a related offence when the relevant separate sentence is always going to be low, probably would not reach the threshold for imprisonment if sentenced separately and would always in any event have to be concurrent with the sentence for the vastly more serious substantive offence. It should have been added to the Form 1, together with the other drug supply offence and in the circumstances the only appropriate way to deal with this as a related offence is pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
    

3. It is, in my view, a waste of this Court’s time and it is well past time that those who are involved in the Early Appropriate Guilty Plea Scheme (“the EAGP Scheme”) in the Local Courts became more realistic in their conferencing and stopped sending to this Court so many relatively minor summary offences to be dealt with separately or even to be dealt with as part of a Form 1, when the outcome is never likely to make any difference to the overall sentence for much more serious substantive offences. Not only does it waste this Courts time, but perhaps even equally significantly judicial and registry staff spend significant periods of time entering those outcomes into Justice Link, all for no appreciable benefit to the administration of criminal justice. If the reason for this is because the EAGP Scheme has become too bureaucratic and lengthy, those involved are not prepared to compromise or make appropriate concessions, then it is time for a review of more than just the statistical outcomes of this Scheme.
    

4. Another issue is that the matter is now before the Court for sentence following the offender’s plea of guilty to one count in an indictment dated 16 May filed with leave yesterday and with consent. It is another example of how the Local Court system is not working efficiently. The offender here pleaded guilty early in the Local Court and was committed for sentence to this Court on a charge certificate pursuant to s 66(1) of the Criminal Procedure Act 1986. This is as it should be. Unfortunately, the offence section of that charge certificate referenced an incorrect law part code for this offence and also referred to the wrong quantity of drugs.
    

5. It would appear to be accepted that a charge certificate cannot be amended in this Court after an offender has been committed for sentence on a charge certificate filed in the Local Court pursuant to the provisions of the Criminal Procedure Act, 1986 , so even though these amendments were either very minor or even worse, just for the purpose of recording statistics, the DPP here needed to obtain leave to file an indictment in Court on 16 May and required the offender to plead guilty to the charge being the exactly same offence to which he pleaded guilty in the Local Court and for which he was committed to this Court for sentence. He is thus entitled to a 25% discount for the early plea of guilty as if it came to this Court as a result of the Early Appropriate Guilty Plea Scheme, even though it may seem on the record that he pleaded guilty on indictment. Again, this is an issue that arises frequently and there should be minor legislative amendments to enable such amendments to be undertaken in this Court by a Judge of this Court so that the overall record reflects the actual situation.
    

6. The facts are agreed. It is not actually a statement of facts. It is instead of summary of what investigations were undertaken by the police from which the facts can be gleaned to identify exactly how this offender committed this offence. This is an ongoing issue with the so-called statements of agreed facts, albeit this example is nowhere near as lengthy and convoluted as many seen by this Court. I accept from these facts that at the time of offending, the offender lived with his wife in MacGregor in the ACT. He was 27 or 28 at the time and was the owner of a concreting business based in the ACT.
    

7. Through intercepted telephone calls police became aware that he had access to a storage facility in Queanbeyan East. There is no evidence from which I could determine for how long he had had this access, nor how it had been used previously. There is evidence to establish that on two occasions in February and March 2020 he visited that storage unit for a period of time but no evidence from which I could determine his purpose for doing so. The evidence before me is that this storage facility had in fact been leased by another person, in the name of another company not apparently connected to the offender but that he had access to it via that connection.
    

8. At the relevant time, there was a Hino truck registered to the offender’s concreting company. On 2 April 2020 the offender drove from the ACT in that truck together with one of his employees named in the facts as Daniel Avanisevic, who was driving, and the offender was a passenger. They drove to an address in Gregory Hills in Western Sydney, stayed there for a short time and then drove back to the ACT to the storage unit in East Queanbeyan. I accept from the agreed facts that the offender had collected the cocaine, which is the subject matter of this charge, from that location in Gregory Hills and took it to the storage unit where he stored it inside a cardboard cognac box inside a metal toolbox in the storage unit. There is no evidence that the metal toolbox itself was secreted in any particular way, but the cocaine was secreted or inside the cognac box which itself was inside the metal toolbox.
    

9. The offender and apparently his then employee left the storage premises. Police obtained a search warrant for the premises and commenced surveillance on 3 April, the following day. Mr Avanisevic drove the truck into the driveway of the storage unit and out again that morning and was stopped by police and apparently arrested. It is not clear for what. When he was interviewed, he told police he worked for the offender, that he would get access to the storage unit with a key from the offender and admitted that he had driven with the offender the previous day as directed by him. He effectively in his interviewed denied knowing anything about drugs being collected or stored. He has never been charged with any offences involving the drugs which are the subject matter of this charge.
    

10. Police executed a search warrant at the storage premises and there located the cardboard cognac box inside the rectangular metal toolbox. Inside that cognac box were two blocks of cocaine. One weighed 1011 grams with an analysed purity of 80%. The other weighed 957.2 grams with an analysed purity of 50.5%. Adjacent to these blocks of cocaine was a large bag which contained a blender, plastic bowls, plastic packaging and two cloths. Mixed DNA was recovered from the handles of the bag and from the cloths. The accused, according to the Agreed Facts could not be excluded as a contributor to those DNA profiles. There is no evidence about the identity of any other person arising from that mixed DNA profile.
     

11. Under the cocaine inside the toolbox were some scales in cardboard packaging and the offender’s fingerprints were found on that packaging. Next to the toolbox were two white plastic buckets sitting on a tin of acetone. One of those buckets contained 661.9 grams of caffeine powder and the other 2079 grams of inositol. These two substances are commonly used to dilute or cut cocaine for subsequent on supply. The accused’s DNA matched DNA found on the lid of the acetone tin and the handle of one of the buckets.
     

12. On the same date, 3 April, police were on the way to conduct a search of the offender’s property in MacGregor when he was seen driving his car nearby. He was stopped but not arrested and then taken to his house by an AFP officer. He was cautioned before the search warrant was executed and asked if he wanted to declare anything to which the warrant was directed. He told police that there was some Xanax and Valium in the house. When police searched the property, they located 31 bottles of alprazolam, each containing 50 tablets, so a total of 1550 tablets. This is the subject matter of the Form 1 offence. The total weight of that was 820.5 grams which I accept is 33 times the trafficable quantity for this offence. They also located 45 bottles of diazepam, each containing 65 tablets so a total of 2250 tablets. This is a restricted substance, and all the bottles were sealed.
     

13. The accused was interviewed at Yass police station on 5 May in relation to these drugs and told police effectively that they belonged to him. He was ultimately charged in relation to his possession of these two drugs on 15 September 2020 and they are before me in two different ways as I have already identified. Police also searched his car on 3 April and found six different mobile phones. Police did not arrest the offender in relation to the substantive offence now before me for sentence until 30 October. They informed him on 13 October that they intended to arrest him in connection with the cocaine seized at the storage facility and on 30 October 2020 he presented to the Queanbeyan police station and was placed under arrest and charged. He has been in custody bail refused ever since.
     

14. The scope of offences capable of being brought pursuant to s 25(2) of the Act is very broad. This offence is capable of covering a very wide range of activities, ranging from the actual supply of very large commercial quantities of a prohibited drug over a lengthy period, to a one-off actual supply, to activities that do not amount to actual supplies but fall within the definition of being knowingly involved in the supply of a large quantity of a prohibited drug. The quantities which are capable of being charged under this section and which are in fact, as known to the Court, charged also vary considerably. The large commercial quantity for cocaine is one kilogram or 1000 grams. The subject matter of this offence is just under double the quantity for the large commercial quantity of cocaine. That of course is a substantial quantity of cocaine with significant value, but it is far short of the extremely large quantities often seen by this Court for charges that are brought under this section.
     

15. The objective criminality of this offending in my view is towards the bottom of the range for offences capable of being charged under this section. That of course does not mean it is not a serious offence, just that it is objectively towards the bottom of the range for offences of being knowingly involved in the supply of a large commercial quantity of cocaine. The following factors inform that determination:
     

1. What the offender did which constitutes being knowingly involved in that supply was to drive with another person in a truck, registered to his own company on 2 April 2020 to a location in Sydney and take possession of two blocks of cocaine, one just above 1 kilo and the other just below 1 kilo and take them back to the storage unit where he put them inside a box itself inside a metal toolbox. The agree facts at paragraph 21 in fact repeat this finding. It is a relatively limited role for an offence of being knowingly involved in the supply of a large commercial quantity of cocaine.
    

2. There is no evidence from which I could make any accurate finding about what his role was in any criminal enterprise surrounding this cocaine. He had access to a storage unit. There was some planning in that he drove up to Sydney to collect the drugs and then brought them back, but the planning was limited. He was nowhere near the top of any such hierarchy even if it existed but nor was he at the very bottom in the role perhaps of a mere courier. His role was slightly higher than that I accept because he was more than a mere courier. He was obviously sufficiently trusted to have possession of this valuable quantity of cocaine and store it for some later purpose. It was a storage unit to which there was apparently limited access but to which he had the key. There is nothing further however about who else may have had the ability to access that storage unit apart from the person who he spoke to about it in January 2020. Whilst the purity of the drugs indicates that it was to be broken down in order for later supply to users, there is nothing in the evidence to suggest that this offender was to be involved in that or to indicate what his further involvement was in relation to this cocaine.
    

3. There can no doubt but that his involvement in this offence was for financial gain and that is clear from answers that he has given to a psychologist about the reason why he involved himself in this offence. However, there is nothing from which I can ascertain the quantum of that gain, who was to pay it or any other circumstances surrounding that financial gain.
    

4. The drugs were found in close proximity to other items commonly used to break down and supply cocaine including the substances, scales and the offender’s DNA was found on some of those items, but I note from the agreed facts that the Crown does not contend that the offender was involved in trafficking drugs to any substantial degree, and I accept that the evidence does not allow such a finding. That is a relevant finding taking into account the dicta of Parente v R [2017] NSWCCA 284 and the way that changed the law previously applying following the decision of R v Clark (unreported NSWCCA 15 March 1990). There is in fact no evidence of his involvement with these drugs except to collect them and place them in the storage unit, including any subsequent evidence either by way of visiting the storage unit again or intercepted calls between him and others even though he was not arrested for this offence until October, six months after the drugs were seized by police.
    

5. The quantity of the drugs albeit substantial is towards the bottom of the weight range for this drug capable of being charged under this section.
    

6. In further assessing the degree of planning and the extent to which it informs the objective criminality of this offence, I take into account the fact that the vehicle that he used to collect the drugs and bring them back to the storage unit was his own, registered to his own company, not a vehicle from which he could distance himself. The risk of identification and apprehension is a factor I take into account when determining his role within any hierarchy. Equally the form of storing and secreting the drugs, whilst it amounted to some form of hiding, was not sophisticated.
    

16. For these reasons then overall, I accept that this offending is towards the bottom of the range in objective terms for offences capable of being charged under this section. For this reason, and also the fact that he pleaded guilty, the standard non-parole period does not apply strictly but is to be taken into account as a guidepost when determining the appropriate sentence.
     

17. The only aggravating factor argued by the Crown is that this offending was part of a planned criminal enterprise. I accept that to be the case but that is a matter which I have taken into account in any event when assessing objective criminality.
     

18. The offending is mitigated by a number of factors which are conceded by the Crown. The offender has a criminal record, but it is not significant. The offences on his record are all summary offences including intimidation offences committed over 10 years ago when he was 19, a drug possession charge also committed over 10 years ago and a charge of domestic violence related common assault and using a carriage service to menace. These two latter offences were committed between February and June 2014 so 8 years ago and were dealt with by way of bonds. There is nothing on his record since then and apart from what must have been relatively minor drug possession charge in 2011, nothing drug related. There are no offences anywhere near the seriousness of the matters before me and no previous drug supply matters. There is also a significant period since 2014 when he has committed no criminal offences at all, apart from the matters that bring him to Court today.
     

19. For reasons that I will expand soon, I accept that the offender is unlikely to reoffend, has good prospects of rehabilitation and has demonstrated genuine remorse and contrition for his offending. I also take into account as a mitigating factor that he has pleaded guilty at the first available opportunity.
     

16. The Form 1 offence is not at the bottom of the range for offences of possessing a prohibited drug. The quantity, 33 times the trafficable quantity, is relatively large but it is a deemed supply offence and there is no evidence that the offender intended to supply it. There is evidence which I will address soon that in fact at the time, more probably than not, he was addicted to Xanax and Valium, and I accept more probably than not that he had possession of, albeit that large quantity at the time, for his own use. He accepts by asking that it be taken into account as a Form 1 offence that he would be unlikely to succeed on the defence of personal use, simply because of the quantity involved. It must be taken into account in a meaningful way but by itself if sentenced separately in my view would not reach the threshold for imprisonment, particularly given that it is a deemed supply, that he has no record for drug supply offences and there is no evidence of any plans to actually supply this drug to anyone. In those circumstances whilst taking into account in a meaningful way, it could not in my view actually increase the appropriate prison sentence for the more serious substantive offence.
     

17. As I have already said, the related offence which I am forced to deal with of being in possession of the Valium is a strictly summary offence for which there is a maximum penalty of 6 months. In the circumstances, the threshold for imprisonment is not reached and given that the sentence for the more serious substantive offence will be a period of full-time imprisonment, no separate sentence in fact will be of any practical use either to the offender, the community or the administration of criminal justice. There is no other outcome appropriate for that offence in my view but to deal with it pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, that is recording a conviction but indication that no further penalty is necessary.
     

18. The subjective case here is a strong one. The offender is now 29. There is a psychological report before the Court written by Ms Lattas which is far too long but from which I accept that the offender had a good and supportive childhood, clouded to an extent when his father was diagnosed with a terminal illness when he himself was an adolescent. His father died when he was 23. The offender himself identified that he did not deal properly with his grief at the time but kept himself busy at work. He had a distant relationship with his sister for a while because of her drug use but they have recently established contact.
     

19. He has been in a relationship with his wife for eight years. She is a supportive and pro-social figure who has provided written evidence to the Court both by way of character reference for the offender and also with some supportive medical evidence in relation to herself. She suffers from a serious intestinal disease, Crohn’s disease, and another disease which have frequent recurring symptoms and require ongoing treatment.
     

20. The offender completed year 10 and then left to work. He started his own concreting business when he was about 22 or 23. The Covid pandemic caused great financial stress to the business and stress to him as a result in the period leading up to his offending because of cash flow problems, trying to chase debtors who themselves were struggling, problems with finding staff and inconsistent work.
     

21. There is a history of problematic drug use in his family but not the offender himself. He did overcome some binge drinking as a young man and that is no longer a problem. I do accept however that he started to self-medicate the stressful situation that he found himself in with non-prescribed benzodiazepines including Xanax and Valium and was in the habit of taking a half or one tablet each night to manage work stress. He started to realise that he was becoming addicted.
     

22. I accept that as a child, a doctor advised his mother that he may have ADHD but that was never formally diagnosed or treated. He was observed by Ms Lattas to have many markers for this condition, both on the history given and also evidence that she herself perceived at the time of her assessment. Those markers are described at paragraph 27 of her report, and I accept her opinion in relation to that condition. She also reported symptoms of the psychiatric illness of generalised anxiety disorder. Those symptoms are set out at paragraph 28 of her report. I accept that the offender also engaged in some addictive eating behaviours in the two years leading up to the offences and as I have said also was using Xanax and Valium to self-medicate his stress. That stress was not just connected to his business but also because of his wife’s medical condition and also his medical condition.
     

23. Ms Lattas also undertook psychological testing. Ms Lattas provides an opinion that the results of those tests indicate that he meets the diagnostic criteria for generalised anxiety disorder and the DSM-5 diagnostic criteria for adult ADHD, the latter which was likely to have originated in his childhood, but not formally diagnosed or treated. I accept her opinions in relation to the results of those tests. I accept that the offender continues to suffer those mental health conditions at present, and they were likely to have been present at the time he committed the offences before me. The relevant symptoms for both of these conditions are set out in paragraphs 59 and 60 of Ms Lattas’ report and I do not propose to repeat them here.
     

24. She offers an opinion that these two conditions may have had some connection with his offending, both because of the impulsivity connected with ADHD and the increased levels of stress at the time, activating his generalised anxiety disorder and affecting his ability to make rational choices and judgments, which would have been negatively impacted. I accept her opinion, but it seems to me that the evidence is slight at best in relation to any connection between his mental health conditions and the offending.
     

25. There is very little evidence that the mental health conditions from which he no doubts suffers and has suffered for some time in fact played any real part in his commission of the offences. He did so because he was suffering financial issues to his business caused by the Covid related downturn but there is nothing to suggest that his actions in driving to Sydney and back again with two large blocks of cocaine could be called impulsive. He does however suffer from these conditions, and I take that into account to an extent because he is a somewhat lesser vehicle for general deterrence than might otherwise be the case but also because I accept these two conditions have made more onerous the time that he has already spent in custody bail refused awaiting sentence.
     

26. General deterrence of course is a factor that must be taken into account on this in any sentence. There must be a strong message sent that involvement in drug supply and especially in quantities such as this, amounts to serious offending. Drugs have a very serious negative impact on the community at large and sentences for those who would engage in supplying in large quantities like this must send a strong message that terms of full-time imprisonment and reasonably lengthy ones will be imposed.
     

27. The offenders time in custody has been something of a double-edged sword. He has taken advantage as best he could of what has been available to make good his own rehabilitation, but at the same time being in custody with his mental health conditions and given the situation of his wife in the community, has meant his experience has been somewhat more onerous. He has written a letter of apology to the Court, and I accept that he has used his time well in custody. He has undertaken many courses and certificates which are tendered on his behalf in this sentence. He has also spent time reading self-help books and has taken up an exercise and healthy living regime and he is, it seems to me at least, just looking at him today a significantly healthier human being than he was at the time of his arrest if his arrest photo is anything to go by.
     

28. He has finally come to recognise the harm caused by drugs. He ought to have realised that much earlier given his sister’s drug addiction, but I accept that he has now seen it firsthand and close up because of the number of people in prison with him, who are there one way or another because of their addiction to drugs. He has expressed genuine remorse and contrition through his letter to the Court and comments to others. His wife remains available to him and whilst he has been in custody, she has managed to build a house that they intended to build together, but her health and ongoing flare ups of her health condition increases his concern about her whilst she is there alone and therefore his levels of anxiety. Her availability to him when he is released to the community improves his prospects of rehabilitation. It would appear that he will also have work available when he is released and he hopes to restart his concreting business, but that will of course depend on various circumstances at the time he is released.
     

29. There are several references tendered from friends and colleagues who speak of him in positive terms and in particular the fact that he has been a good and available friend to others in the community. I accept their opinions about him, and I accept that this offending in such a serious way by him represents a significant fall from grace. He is however I accept committed to improving and continuing his rehabilitation.
     

30. His time in custody has been onerous. For the whole time he has been in custody, the New South Wales prison system has been in the grip of Covid-19. There have been frequent lockdowns to prevent the spread of that virus and I accept that that has been the case in the mid north coast correctional centre where he has largely been housed.
     

31. There is evidence provided by way of calendar to indicate the days on which he was locked down. On occasions when lockdown has occurred, I accept that prisoners like this offender may spend up to 20 hours in their cell. I also accept that during this period there were at times only limited AVL visits permitted and that for some of the time since June 2021 there were no personal visits at all. Because he has been housed in the mid north coast, presumably there have been some limitations on his wife visiting him from Canberra particularly on occasions when the symptoms of her serious health condition have impacted on her. He worries about that and worries about the fact that his mother also no longer has access to him to assist her. This itself has adverse impacts on his generalised anxiety disorder. This does not suggest that the impacts on his family from his being in prison would make anything other than full time custody appropriate, however his experience of custody has been made even more onerous because of the worries that he has and in particular by him as a person who suffers from generalised anxiety disorder.
     

32. The need for specific deterrence in his case is not a particularly elevated issue given the extent to which he has sought to improve himself whilst in custody. I accept Ms Lattas’ opinion however that he would benefit from referral to psychological counselling and treatment when he is released in an attempt to deal with the two recognised conditions from which he suffers.
     

33. I then turn to the appropriate penalty. Clearly the threshold for imprisonment is reached. I have had regard to the JIRS statistics for this offence and access to a number of cases to which I have been referred which are said to be comparable. Some of those so-called comparable cases are not of great use to the Court because of the significant differences between the facts in that case or the offender in that case and the circumstances here. Many of those comparable cases involved much larger quantities, a greater involvement or a less positive subjective case. There is a wide range of penalties consistent with the very broad factual circumstances covered by this offence. However, the circumstances of this offending as I have already indicated place it in my view at the bottom of the range for offences capable of being charged under this section and the offender’s subjective case is good. In case I have not made it clear, I accept that his prospects of rehabilitation are very good.
     

34. The starting point for this offence in my view should be somewhere between 6 and 7 years, less 25% and I have thus concluded that an overall sentence of 5 years is appropriate. There are special circumstances as follows:
     

1. This is his first time in custody.
    

2. His time in custody has been more onerous because of the impact of Covid, the increased lockdowns and the lack of availability of personal visits for a significant period of time.
    

3. His wife’s medical condition whilst he has been in custody has increased his own generalised anxiety and made his experience of prison more onerous which is likely to continue because he will continue suffering from those mental health conditions.
    

4. The need for a longer than normal period of supervision in the community, especially with some psychological intervention of the type recommended by Ms Lattas.
    

39. I have concluded that a non-parole period of 2 years and 6 months is appropriate. I have, as indicated, taken into account the Form 1 offence when reaching that sentence. The sentence will be backdated to the date that he went into custody, namely 30 October 2020.
     

40. For those reasons I make the following formal orders:

The Substantive Offence

1. The offender is convicted.

2. He is sentenced to a non-parole period of 2 years and 6 months commencing 30 October 2020 and expiring 29 April 2023, with parole thereafter of 2 years and 6 months commencing 30 April 2023 and expiring 29 October 2025, giving rise to an overall term of imprisonment of 5 years commencing 30 October 2020 expiring 29 October 2025.

3. I have taken into account Form 1 offence when sentencing.

Section 166: Related Offence

1. The offender is convicted pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 with no further penalty.
    

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Decision last updated: 15 November 2022