R v Buangern

[2019] NSWDC 637

District Court

New South Wales

Medium Neutral Citation:	R v Buangern [2019] NSWDC 637
Hearing dates:	1, 15 ,19 March 2019
Decision date:	19 March 2019
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Total sentence of imprisonment 3 years 4 months; non-parole period 1 year 10 months
Catchwords:	CRIME - Sentence – reckless wounding – impulsive not planned – self-defence - foreign national resident in Australia – prior good character CRIME - Sentence – ongoing supply prohibited drug – drug user – “runner” – offences committed whilst on conditional liberty – partial accumulation of sentences
Legislation Cited:	Crimes Act 1900, s 35(4), s 35(3) Crimes (Sentencing Procedure) Act 1999, s 44, Pt 4, Div 1A, s 21A (2)(3), s 54A(2), s 54B(2) Drug (Misuse and Trafficking) Act 1995, s 25A(1), s 25,
Cases Cited:	Attorney General's Application (No 1 2002) (2002) 56 NSWLR 147 DPP (Cth) v De La Rosa [2010] NSWCCA 194 Johnson v R [2004] HCA 15 Pearce v R [1998] 194 CLR 610 R v Mill [1988] 166 CLR 59
Category:	Sentence
Parties:	Regina (Crown) Sepathong Buangern (Offender)
Representation:	Solicitors: Mr Sit (Crown (Cth)) Ms Manea (Offender)
File Number(s):	2016/00343562; 2018/00026176
Publication restriction:	No

JUDGMENT

1. HIS HONOUR:  Mr Buangern, it is my practice to tell people in advance what sentence is to be imposed unless, there is some reason not to do so.  In your case I propose to sentence you to a total sentence of three years four months imprisonment with a non‑parole period of one year ten months.  That total sentence will start on 12 October 2017 and your non‑parole period will expire on 11 August this year.  You will be eligible for release to parole 11 August this year, in approximately five months' time.  I have to give my reasons for that sentence.

2. The prisoner, Sethapong Buangern, appears today for sentence in relation to two offences to be sentenced as principal offences, one principal offence taking into account a matter on a Form 1. The first principal offence in time is an offence of reckless wounding committed by the offender at Hornsby on 16 November 2016. The "victim" of that offence is Nathan Hall. This is an offence contrary to s 35(4) Crimes Act 1900.  It carries a maximum penalty of seven years' imprisonment but it also has a standard non‑parole period of three years' imprisonment.

3. Connected to that offence is an offence on a Form 1.  That offence is an offence of assault occasioning actual bodily harm committed upon a friend of Mr Hall by the name of Tammy Bartlett.  That offence carries under the relevant provisions of the Crimes Act, as I understand it, five years' imprisonment.

4. Whilst it is a matter on a Form 1, this is not a situation where greater weight needs to be given to personal deterrence or retribution.  I have had regard to the guideline judgment, for example, from 2002 being Attorney General's Application (No 1 2002) (2002) 56 NSWLR 147 particularly at paragraphs [18]‑[44]. That judgment discussed the appropriate approach to dealing with matters on a Form 1 and noted, amongst other things, that where matters may be on a Form 1 when sentencing for the principal offence, there will be occasions where deterrence and retribution are entitled to greater weight than they may otherwise be given than when sentencing for the primary offence standing alone.

5. As I said, this is not such a case, bearing in mind that the circumstances of the assault occasioning actual bodily harm are intimately tied up with the circumstances of the principal offence and the two offences not only have a relationship in time but have a clear relationship in circumstance. But it is proper that I take into account the matter on the Form 1 in sentencing the offender for the principal offence.

6. The second offence that I am to sentence the prisoner for is for an offence shortly described as ‘ongoing supply of prohibited drugs’ in the period of time between 11 January 2018 and 24 January 2018.  This is an offence contrary to s 25A(1) Drug (Misuse and Trafficking) Act 1995.  It carries a maximum penalty of 20 years' imprisonment and/or a pecuniary penalty of 3,500 penalty units.  There is no standard non‑parole period for this offence.  This offence, I point out, was committed whilst the prisoner was on bail in relation to the offences, both principal offence and matter on the Form 1, committed on 16 November 2012.  I do not propose to go into the precise details of the time spent in custody by the prisoner but it would appear that the prisoner was in custody for a number of periods of time before being released on bail for the third time in early January 2018.

7. He was arrested in relation to the ongoing supply of the prohibited drug methylamphetamine on 24 January 2018 and has been in continuous custody since that time.  The parties and I discussed the appropriate commencement date and, we agreed that the proper commencement date, if I was to take all periods of time spent in custody into account, should be 12 October 2017.

8. The first sentence I impose, before I come to the formal orders, will be for the second offence in time, that is, the ongoing supply of prohibited drugs.  I note, in passing, that whilst that offence has a greater maximum penalty than the reckless wounding offence, to my mind, notwithstanding the disparity in the maximum penalties, the lesser sentence should be imposed for the ongoing supply offence, notwithstanding the breach of conditional liberty as an aggravating factor in sentencing. Because of the character of the offending concerned with that ongoing supply of prohibited drugs, within the range of conduct contemplated by s 25A, compared to the character of the offending of reckless wounding within the range of conduct contemplated by that section.

9. The prisoner, at the time of the offending in 2016, had no prior criminal convictions.  His offending in November 2016, for which he was not convicted in January 2018, is, however, relevant, given his subsequent pleas, to an assessment of some of the subjective matters that need to be taken into account in respect of the offending concerned with the ongoing supply of drugs. 

10. He was born in March 1962.  Thus, on my calculation, rough though it is, he was relevantly 54 years of age at the time of the offending involved in the reckless wounding and he was, relevantly at the time of the ongoing supply offence, as I calculated, 55 years of age about to turn 56.

11. If I may turn to the facts of the wounding offence and the related assault occasioning actual bodily harm matter, there is an agreed statement of facts and I need not recite all the detail.  Tammy Bartlett was known to the prisoner.  It appears in the subjective material relating to the prisoner from various sources, which I accept, that the prisoner had, in fact, been introduced to methylamphetamine by a friend of Ms Bartlett.  It would appear to me, sub silentio in the sentencing of the offender that the use of drugs was a common denominator in the accused's relationship with Ms Bartlett and possibly Mr Hall, although the agreed facts are silent on that matter.

12. It is a very unusual case, as is reflected in the very fair concessions and submissions made by the learned Crown, having regard to the character of the wounding.  Ms Bartlett lived at Wee Waa with Mr Hall.  As I would understand it, the prisoner has no connection with Wee Waa.  From what I would understand from the subjective material, he, being a native of Thailand who immigrated to Australia in 1999, has primarily been involved or lived in urban areas such as Sydney.  Ms Bartlett contacted him in November, having known him for approximately six years.  She would see the prisoner from time to time when she would visit Sydney.  She knew him by the name of ‘Sam’.  She borrowed money from him to travel from Wee Waa to Sydney.  The reason that she needed money from him, as opposed to Mr Hall or from other sources, is not clear but, as I said, there is a context to this matter which sits silently underneath the agreed facts.

13. The prisoner ultimately forwarded to her $140.  Of that there appears to be no dispute.  She came to the Railway Hotel in Hornsby and the two people, Mr Hall and Ms Bartlett, lived or stayed in the hotel room occupied by the prisoner at the hotel.  On 16 November, having been here for approximately three or four days, Mr Hall and Ms Bartlett arranged to return to Wee Waa.  As they were making plans to leave the premises, the prisoner approached Ms Bartlett to repay what is described in the agreed facts as, "$350 that the offender said she owed him before she returned to Wee Waa".  Ms Bartlett replied to him when he asked for the money, "I just want to go, just go back to work".

14. It was in the context of preventing her leaving the premises where she had been staying with the prisoner that the prisoner grabbed hold of her with both hands and there was a struggle, ultimately leading to him wrapping his arms around Ms Bartlett.  This caused some pain to Ms Bartlett and she suffered some red marks and bruising, to both arms and the left wrist but I would regard her injuries as relatively minor.  Mr Hall was apparently outside the room where this struggle took place and he came into the room, having been interrupted speaking on his mobile phone in the hallway.

15. He told her to run from the premises and, as she ran down the hallway away from the prisoner, Mr Hall pushed the offender further back into the room and it was at this point the offender grabbed a knife located amongst other belongings on the table near his bed.  Mr Hall did not see him pick up the knife.  The prisoner tried to push past Mr Hall to get out of the room, which I believe is an important aspect of the agreed facts, but Mr Hall held him with both hands in an attempt to hold him back obviously to stop him chasing after Ms Bartlett.

16. It was at this point that the prisoner stabbed Mr Hall once to the right side of his stomach. He felt a small jab and, ultimately, the prisoner, in the course of a struggle that unfolded, said the words, "I stabbed you.  I stabbed you".  Mr Hall reported seeing a silver blade about six inches long in the prisoner's right hand but did not see the handle.  The prisoner ran out of the room down to the bar area where a staff member also spoke to Mr Hall. Mr Hall told the staff member he had been stabbed.  Various steps were taken to provide medical treatment to the victim.  He was treated, ultimately, for a 3 centimetre laceration of the right lower quadrant of his stomach.

17. A CT scan revealed a right sided abdominal wound penetrating through the abdominal muscle without definite breach of the peritoneal cavity.  He was given a tetanus booster and some antibiotics.  He was not hospitalised.  The prisoner was interviewed by police that day on his arrest.  A Thai interpreter provided some assistance.  The prisoner made admissions about pushing Ms Bartlett and the altercation with Mr Hall but he also claimed that he was owed money by Ms Bartlett and that he was trying to prevent her leaving without paying the money back to him. He said that Ms Bartlett had told him words to the effect, "The man (Mr Hall) will knock you out" and the offender, that is, the prisoner believed that Mr Hall was going to strike him.

18. He gave an account of Mr Hall being bigger than him and there appears to be no dispute that that is so. The prisoner is a person of quite small and slight build. He said to the police, amongst other things, "I didn't intend to stab him at all". He said, "Things were happening quite so fast and there was a knife on the table". I believe what he was saying, in the English interpretation of his comments, is that his conduct was impulsive and not planned. It is the case, I have concluded, that one of the mitigating factors that arises under s 21A(3) Crimes (Sentencing Procedure) Act 1999, hereinafter to be referred to as "the Act", is the fact that the offence was not a planned criminal offence.

19. It was clearly an impulsive act in the heat of the moment. There is no suggestion of the prisoner carrying a knife into a fight in the expectation of using it. As was conceded in the Crown's submissions and submitted by learned counsel for the prisoner in her written submissions, there can be seen in the overall circumstances of the matter, particularly in the context of the prisoner trying to prevent people leaving his premises without paying back money that he believed was owed to him, some element of provocation. Thus, another mitigating factor arising under s 21A(3) of the Act is to be taken into account in assessing the objective seriousness of the offending.

20. In that regard, I note, of course, that there is a standard non‑parole period prescribed in this matter to which I earlier referred which requires me to consider the terms of s 54A(2) of the Act.  Section 54(2) of the Act requires that, for the purposes of sentencing an offender, the standard non‑parole period represents the non‑parole period for an offence in the Table of the Division that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

21. I pause for a moment to note that I have had regard to all the submissions made by the parties, both as to the objective features of each offence for sentence and the relevant subjective circumstances relating to the prisoner. I have noted two mitigating factors under s 21A(3) that are relevant to the assessment of the objective seriousness of the offender.

22. I make the following observations with the aid of the helpful submissions made by the two parties.  Other considerations that are relevant to the assessment of the objective seriousness of the offending are, the location of the wound which, to my mind, in the circumstances, is more consistent with an injury caused during the course of a struggle rather than an injury inflicted with a deliberate target on the body in mind. Secondly, I have had regard to the nature of the weapon, as I have pointed out, not carried into the fray and apparently a knife that was in the room for no sinister purpose.  I note the submission of the learned Crown Prosecutor that the degree of violence was "confined" to one stabbing motion.  I note that, whilst the wound was in an area of the stomach, it was not ultimately a "serious" wound or a "potentially fatal" wound, particularly having regard to the treatment provided to the victim.

23. I note that the parties were known to each other.  Not that that is necessarily a mitigating factor but this is not an unprovoked attack upon a stranger.  I note that the injuries to the victim of the reckless wounding and the lady arose out of the dispute occurring in the accused's own place of residence, in circumstances where he had provided accommodation and support to both people. It is clear, whatever the sum was, that the dispute arose in circumstances where he wanted repayment of money that he had lent to them in whatever quantity.

24. In all these circumstances I have determined that the offence is, as both parties have submitted, at the low range of objective serious. Not at the lowest level, of course, but well below the middle range of objective seriousness for an offence of this type.  Its seriousness, in my view, is not "aggravated" by the presence of the matter on the Form 1 and I would regard that offence in its terms as a matter of low objective seriousness, having regard to the temporary injuries suffered by Ms Bartlett and the context in which they occurred.

25. I would suspect that the assault occasioning actual bodily harm matter if stood alone would, no doubt, have been dealt with in the Local Court, which is not an irrelevant matter. Although, as the guideline judgment makes clear, I am not required to fix a discrete penalty for a matter on a Form 1 but consider it in the context of both the guideline judgment and the relevant legislation.  I will come back to subjective matters shortly.

26. With regard to the later ongoing supply matter, again in this matter I have a statement of agreed facts.  The prisoner was identified in the course of a police operation, presumably to identify people either involved in supplying drugs or having a connection with people that are supplying drugs.  I note, as it is relevant to the assessment of the objective facts of this matter, that these crimes would not have been committed but for the involvement of a registered source in calling upon the prisoner and requesting him to supply drugs in the manner that ultimately arose.

27. This is not an irrelevant matter to assessing the objective gravity of offending, as many decisions have made clear.  Between 11 January 2018 and 24 January 2018, the prisoner supplied the drug methylamphetamine or "ice" on five occasions.  I am informed by the calculation of one or other of the parties that the total amount supplied in that period of time was 16.49 grams.  Each supply involved approximately 3.5 grams of methylamphetamine.  For each supply, the prisoner was paid either $900 or $850.  The price got lower, it seems, as the time wore on.

28. There was some variation in the weight of the relevant drug but, on every occasion the relevant "eight ball", as it is described, was supplied it weighed less than 4 grams and some weighed less than 3.5 grams.  It is quite clear on the facts, without having to recite them in their detail as set out in the Agreed Statement of Facts that the prisoner was a form of delivery person.  He was rung and he met with the person who wanted to purchase the drug.  He demonstrated, by his actions as reflected in the agreed facts, that he did not have the drug upon him at the relevant time.  He either had to go somewhere to obtain the drug or else bring someone with him who would provide the drug to him to pass on to the registered source.

29. On a couple of occasions, the prisoner requested a "tip" for his services in obtaining the drugs at the request of the registered source.  For example, on 12 January, when the prisoner on two occasions supplied drugs to the registered source, he requested a $100 "tip" for the transaction which he was paid.  All these transactions, I hasten to say, were electronically recorded.  On 23 January 2018 when he supplied 3.11 grams of methylamphetamine, he asked for an additional "$50 tip".  Certainly the facts indicate that that was paid for arranging the supplies as the facts state.

30. The prisoner was arrested after the fifth supply.  He made it clear, even though he did not know that he was being recorded at the time, that the money he was receiving he was giving to the person who provided him with the drugs. When the prisoner was arrested he had the last $850 provided to him in his pants pocket.  In considering the objective seriousness of this offence, although the middle range of objective seriousness is not a relevant phrase to an offence not carrying a standard non‑parole period, it sometimes provides a useful measuring point or yardstick for assessing the objective gravity of relevant offending.  I regard the offence at a low level of objective seriousness of offences of this type but, again, not at the lowest level.

31. As I pointed out in passing, compared to reckless wounding, offences under this particular provision seemed to me to be capable of inviting consideration of a range of conduct far wider. The reason that the range of conduct may be far wider is because the quantities of the drug supplied over the relevant period of time can vary considerably.  There are obviously, in many drug supply circumstances, differences in role and responsibility of the individual offender.  Some people are primary suppliers who are making all the profit from the transaction; some people are to be regarded as messengers or agents as was this particular prisoner.

32. The number of the supplies over the relevant period contemplated by the section is a relevant matter to take into account.  There are, as I say, many variable factors that can arise in relation to this offending.  I was required once down in Wagga to sentence a young Aboriginal man, 18 years of age, who was approached by an undercover officer, asked if he had any prohibited drugs, to which he replied “no”.  The undercover officer said, "Can you give me some?" He prisoner wandered out of the hotel and came back with a point, that is, 0.1 of a gram and gave it to the officer.  The officer came in the next day, asked if he had any prohibited drugs.  He said no.  He asked him again if he could get him some.  The 18 year old wandered out of the pub, came back with another point and so it went on, on three occasions over three days. He was charged with an offence that carried 20 years imprisonment, ongoing supply.  It was really at the very lowest level of criminality, one would have thought, bearing in mind it was not his drug, he was getting no money out of the transactions and they were the lowest quantity one could find.

1. This particular provision, as I pointed out to counsel if they didn't know already, was introduced into the law after the Wood Royal Commission into the Police Service, as it was then known, and reflected upon criminal conduct that had avoided proper criminal sanction. Such as that conducted by people like Billy Bayeh running massive drug supply operations out of a coffee lounge in Double Bay but on each occasion supplying quantities of drugs that were below the indictable quantity.

2. In this particular matter, the factors I have taken into account helped by the submissions of the party, were that the supplies were solicited by a "police agent".  The drugs each had to be sourced elsewhere by the prisoner.  The prisoner, although he may have been described in submissions as a middleman, to my mind, was more a "runner" or "agent".  A middleman, in its general expression, seems to have the connotation of a person receiving some sort of commission to enable a crime to be committed.  Here the prisoner, it would seem, from what I understand of it, was receiving some drugs for his role, apart from any cash he received on top from the tips provided to him.

3. I note, relevantly, as it may touch upon the objective seriousness of the offending, that the prisoner was a drug user and, as I said, was obtaining not only small financial reward but small amounts of drugs for his personal use.  I note also that each supply over the period of time was more than a trafficable quantity, although only just, for the drug methylamphetamine. But, as I said earlier, below the relevant indictable quantity for that drug.

4. I note in relation to the offending that it was an offence committed while the prisoner was subject to conditional liberty. This is an aggravating factor under s 21A(2)(b). He was on bail in relation to the reckless wounding charge but that breach of conditional liberty has to be seen in the context of the prisoner being invited, in effect, to commit the offence with which I am now concerned. In this particular matter, I have noted the prisoner had no prior criminal convictions before the reckless wounding matter. In terms of the relevance of that to this sentencing exercise, I note as mitigating factors arising under s 21A(3) in respect of the offence of reckless wounding, that the prisoner was a person then of good character.

5. He was a person who, at that time might have been thought unlikely to re-offend.  I still believe he is unlikely to re-offend, certainly in the manner that he has been charged in these matters.  I would have regarded him, in relation to that offending, as a person with good prospects of rehabilitation.  His plea of guilty ultimately to that matter is a mitigating factor.  I have concluded, for reasons I will come to in a moment, that, the prisoner has provided through his evidence before me, that he does accept responsibility for his actions and has acknowledged the injury and harm caused to the respective victims.

6. However, in relation to the second offence in time, that is, the supply of drugs pursuant to s 25 of the Drug (Misuse and Trafficking) Act, the prisoner’s claim upon good character is lessened by the fact that, at the time of that offence, he had committed the offence of reckless wounding, although he was not convicted of it, and had not pleaded guilty to it. But I am prepared to accept ultimately, although there is a diminution upon his good character, that at the relevant time to the commission of the drug supply matter, he did not have a significant record of previous convictions. As I have said in relation to both offences, I am prepared to conclude he is unlikely to reoffend and has good prospects of rehabilitation and has shown relevant remorse as required under s 21A(3)(i).

7. The offence of ongoing supply might be seen to be part of "organised criminal activity" in the sense that I could not ultimately conclude that that arises as an aggravating factor.  Having regard to the overall circumstances, I cannot conclude, as a mitigating factor, that it was not a "planned" offence but, on the other hand, I could not conclude that an aggravating factor in relation to the ongoing supply of drugs is an "aggravating factor" in the way in which that expression has been considered by the Court of Criminal Appeal, particularly in judgments of Howie J, in respect of supplying of prohibited drugs is concerned.

8. The prisoner gave evidence in this matter but, interestingly, the prisoner's Community Corrections Officer, who was responsible for the preparation of two reports, also gave evidence.  She was called in the Crown case and was examined in relation to aspects of the two reports that she prepared.  I should point out, in relation to this matter, that the prisoner had pleaded guilty to the reckless wounding matter before the amendments to the Act in September 2018.  Thus, in respect of that matter, I received what could be called a "Pre‑Sentence Report".  In respect of the second matter in time, the ongoing supply of prohibited drugs, I received another report from, the same officer which is described in the legislation and is considered by the courts now as a "Sentencing Assessment Report".

9. Both reports said much the same things albeit that they may have been reporting upon different offending, although the Sentencing Assessment Report reflects upon both offences.  The matter in issue that required the giving of evidence by the author of the report was the reporting by the Community Corrections Officer about expressions of contrition or lack of contrition and lack of insight in relation to the character of the offending.  There are a number of difficulties faced by the Community Corrections Officer in the preparation of the report.  I have got no doubt that her reports were prepared in good faith, without any ill will towards the prisoner. But as I understand it, the prisoner was aided by an interpreter who was providing assistance through a telephone interpreting service.  I have just sat through three weeks of a trial of a Chinese man who was the subject of a telephone interpreter's assistance when he was arrested and, to be frank, the assistance he received was absolutely hopeless. The failure of the interpreter to be physically present meant a number of things were misinterpreted or incorrectly interpreted as not only subsequent interpreters have discovered, but, also Mandarin speaking jurors have pointed out during the course of the trial.  Be that as it may, I am satisfied that in the expressions of the prisoner in relation to his involvement in these matters, all he was trying to do was explain to the officer the circumstances in which he found himself. To my mind, he was trying to explain to the officer that, in respect of the reckless wounding matter, the circumstances were extenuating.  He was owed money by one of the parties that he had assaulted.  There was a struggle in him trying to prevent that party leaving his premises or his room at the hotel where the parties were staying to prevent her not paying back the debt that she owed and that what he did was in response to the situation that unfolded quite quickly. 

10. It seemed to me, with respect, that in relation to the supply drugs matter, in the context of it being reported that he did not think that his conduct was "illegal", what the prisoner was trying to say was, effectively, that the drugs were not his and he had received no real payment for the supply of the drugs.  I do not think the offender had the complexity of thought or the understanding of the character of the offending in a legal sense, to be making comments upon the legality or illegality of his actions, even those actions that he admitted.  He was merely reflecting upon what were the true circumstances of the offending, that is, being called upon to act, as I said, as a runner for the demands of others, providing drugs that he did not have himself.

11. The officer had tried to interpret or analyse what the prisoner said in good faith. But, in my view, having regard to the evidence he gave in respect of what he believed he said to the officer and having regard to the officer's evidence himself, I accept that his expressions of contrition and his taking of responsibility for his conduct is genuine, and he had a full opportunity in his evidence before me to express himself in clear terms.  Of course, as I pointed out, one of the things that he said in his evidence had been conveyed to the Community Corrections Officer.

12. I do not accept it was said by him in the terms in which he expressed it in this Court. But I appreciate, in trying to give evidence of what he spoke to the Community Corrections Officer about, that he was just doing his best to remember, without the aid of notes and the like.  He said in his evidence before me that he said to the Community Corrections Officer that he felt really bad about what he had done so far as the reckless wounding offence was concerned and he had said, "I won't do it again".  He may have said that in Thai or in English. Because most of what he said to her, I noted on her account and on his account, was said in English, which is his second language and, in my understanding of the matter, he could not do justice to himself speaking in English.

13. I do not believe that if he expressed himself clearly as saying "I won't do it again" that the officer would not have written those words down, given that she took notes of the conference. But with the exception of that matter which, as I point out, is the belief that the prisoner held that may be expressed in good faith but may not be accurate, what he told me about the manner in which the interview was conducted is not that far removed from the evidence of the officer and, ultimately, there is really not much to resolve in terms of conflict between the two of them given the ultimate conclusions I have reached.

14. The Community Corrections reports both indicate, if I might summarise the matter by reference to the second report in time, that the prisoner is at low to medium risk of re-offending under the actuarial instrument used by Community Corrections.  He is suitable for supervision.  He has not previously been supervised by Community Corrections, as one would expect.  He does not have any history of antisocial behaviour.  She noted his acceptance of his use of prohibited drugs as, at least in retrospect, "problematic" and noted his isolation in Australia, given the fact that his only relative in Australia is a niece and apparently, since being in custody, he has had no contact with his family living in Thailand.

15. A more extensive account of his personal circumstances is in the psychologist's report prepared on 4 July 2018 which I appreciate is some seven or eight months ago.  This is a report by Patrick Sheen, a forensic psychologist.  I do not propose to go through in full detail his family history beyond pointing out that the prisoner was born in Chiang Mai in northern Thailand.  He came to Australia, as I said, in 1999.  He has been married in Australia, although he has been separated from his wife for some years.  He has only been back to Thailand once since his arrival in Australia and that appears to be in 2000, shortly after he arrived here.  He went to school in Thailand but would appear to be an average student.

16. He gave a history of being in regular employment, particularly in Australia, and also in Thailand.  He has worked primarily in Australia as a kitchen hand or as a cook.  However, the onset of methylamphetamine abuse, which seems to have impacted upon his marriage, has had some effect upon his capacity to work.  The reason he became involved with methylamphetamine included association with other Thai men playing cards and relaxing after work, these men introducing him to methylamphetamine use. Although there is some history of Ms Bartlett's former boyfriend also providing him with prohibited drugs.

17. The relationship with his wife, I should point out, whilst it lasted for a number of years before marriage, failed two or three years after the wedding.  The prisoner gave an account in relation to his substance abuse been primarily driven in the few years before his arrest in relation to the reckless wounding offence and then when he was released on bail, before committing the ongoing supply offence with being entirely focused on obtaining the drug. He said that, at the time of the commission of each of the offences, he had been using amphetamines, although intoxication by prohibited drugs or alcohol could not be a mitigating factor.

18. He had no history of mental illness.  He denied any symptoms of psychosis.  It seems to me, by reference to the report in its terms, albeit that the psychologist is not fully qualified to make a diagnosis on these matters, there is no material upon which the Court can conclude that the prisoner relevantly had a mental illness or a mental disability that would be relevant to a consideration of what is sometimes called the De La Rosa principles arising from the judgment of McClelland CJ of CL [2010] NSWCCA 194, particularly at [177]‑[178]. The psychologist's view was that the prisoner could meet the diagnostic threshold for substance use disorder and also the criteria for what he described as "stimulant use disorder". He described those disorders as "moderate" but in remission in a controlled environment.

19. He said there was no compelling evidence to suggest the presence of a disorder of personality, although there were limitations in the interview using an interpreter and that a thorough understanding of the subtleties of personality functioning was not possible. But he did not believe the prisoner met the criteria for what he described as "antisocial personality disorder".  He regarded the absence of this as a "positive prognostic indicator" and it seems to me, with respect, that a man who had lived for as long as this man had without committing criminal offences working industriously, trying to make his way in Australia with limited skills, reflects upon that as a fact.

20. So far as the summary of the matter is concerned from the viewpoint of the psychologist, he notes the significance of the use of amphetamine and the deterioration of the prisoner's conduct and lifestyle and that the criminality with which I am concerned, in part, be seen as "drug motivated".  It is thought that he would benefit from the participation in alcohol and other drugs programs, although his options were limited having regard to his language skills which are limited in English.  He said in his report that the difficulties the prisoner would have in custody getting meaningful therapeutic contact with limited English skills would reduce the "rehabilitative value of a custodial sentence".

21. He noted the prisoner, was somewhat "socially isolated in custody".  There may be other Thai speakers in custody, I understand that.  Many, but not a lot of, Thai people are committed to custody, although many in different circumstances than this prisoner.  Most Thai offenders that I have dealt with have usually come to this country for the purposes of committing crime, usually importing drugs into the country.  This prisoner is not in that category.  He is not a person who came to Australia for the purposes of committing crimes.  In fact, he has lived a perfectly reasonable and responsible existence for at least 16 or 17 years before he committed the first of the offences with which I am now concerned.

22. I believe that, in the consideration of relevant matters to the sentencing of this offender, the prisoner's isolation whilst in custody through what I would regard as no fault of his own, as opposed to the situation of people who come here to commit crimes, is a relevant matter to take into account.  It is not a highly significant matter but I appreciate that the prisoner is well isolated from his family.  He has but one relative here in Australia and he has said in interviews that he is ashamed to contact his family and he cannot afford to ring them because he does not have money for international calls in any event, thus he will serve his sentence in a considerable degree of isolation, probably without visitors or very few visitors and with the prospect of little support on his release from custody.

23. This highlights the importance of supervision by Community Corrections on his release from custody, which is one of the matters I have taken into account in determining that there are ‘special circumstances’ pursuant to s 44 of the Crimes (Sentencing Procedure) Act.  In sentencing the offender, I am required to have regard to the totality of the criminality with which I am concerned.  In my view, that can be met by fixing a sentence with a non‑parole period in relation to the lesser of the two sentences I will impose and then fixing a sentence by way of non‑parole period accumulative upon that non‑parole period.

24. The High Court of Australia in Pearce v R [1998] 194 CLR 610, particularly at [45] in obiter remarks because it needs to be remembered Pearce was an appeal against conviction, the majority observed:

"A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well, of course, as questions of totality."

57. In considering the issue of totality, I have had regard to the decision of R v Mill [1988] 166 CLR 59, particularly at 62‑63 and also the decision of the High Court in Johnson v R [2004] HCA 15 which particularly examined the relationship of Pearce principles to the principle of totality as it is understood.  In respect of the offence contrary to s 25A Drug (Misuse and Trafficking) Act, the prisoner pleaded guilty at the Local Court and I am prepared to give him a discount of 25% upon the otherwise appropriate sentence to reflect the utilitarian benefit of the plea of guilty.

58. With regard to the matter on indictment, the reckless wounding offence, whilst he was committed for trial, the Crown has informed me that no trial date had been fixed and, as I understand the matter, the prisoner was committed for trial on a more serious offence than that to which he ultimately pleaded guilty.  I would expect, of course, there must have been some plea arrangement undertaken between the parties to enable one of the offences, the assault occasioning actual bodily harm matter to be placed on a Form 1. In the circumstances, although the prisoner was committed for trial, given the fact no trial date had been fixed I am prepared to accord the prisoner a discount of 17.5% upon the otherwise appropriate sentence for the principal offence, that is, the reckless wounding matter to recognise the utilitarian benefit of the plea of guilty.

59. I should point out, amongst the material tendered by the defence in addition to the psychologist's report, there are quite a number of records obtained from Justice and Forensic Mental Health which set out the fact that the prisoner, notwithstanding his language difficulties, has endeavoured to communicate on a number of occasions with the authorities and seek assistance in relation to a number of problems that he has had, particularly anxiety disorders, arising out of his circumstances of custody.

60. It would be, for a person of his age, in custody for the first time, a difficult climate or environment to adjust to, in all the circumstances and I accept, as his counsel pointed, out that he has shown a willingness to address problems whilst in custody. But it is also pointed out by the psychologist that, given his limited English skills and, no doubt, given the absence of Thai interpreters on the ground, that he will have some difficulties in finding practical assistance, at least while he is in custody.

61. Both counsel provided very useful written submissions.  I credit both of them with those submissions and thank them very much for their assistance.  A number of the matters that they have identified I have taken into account in respect of the objective features and the subjective matters to be taken into account.  The Crown's submissions were extremely fair.  The only matter, in reality, that I could distinguish in my findings from his submissions was his assessment of the objective gravity of the offence of ongoing supply.  He described the objective seriousness of that offence as being between the "low and mid-range" for this offence.  With the greatest of respect for his analysis, for the reasons I have advanced, I could not see the offence as being near what could be called the middle range of objective seriousness of that offence.

57. I have accepted the submissions of the prisoner's learned counsel, that the evidence of the prisoner in the context of the evidence I have received from the Community Corrections Officer and the reports prepared, reflects the taking of responsibility and I have credited the prisoner with the relevant remorse required to be identified in order to determine that as a mitigating factor.  I accept that the prisoner's imprisonment will be a salutary experience it might be thought.  I hasten to say that, having been in custody for a period of some three or four months before being released on bail, that salutary experience might have deterred the prisoner from committing the offence of ongoing supply.

58. But the difficulty for the prisoner, in my view, was that, once released, without any professional assistance, the prisoner found himself basically on the streets with a methylamphetamine addiction, and with little material support to assist him to avoid either the use of the drug or the undertaking of a legal means to gain access to the drug.  I can accept that for a period of some years he might have been able to afford the drug from his labours as a chef or a cook or a kitchen hand but it would seem that he was, effectively, homeless at the time of the commission of the last offence in time.

59. In sentencing the prisoner, I have noted the purposes of sentencing under s 3A.  Certainly there is a need for adequate punishment to be imposed.  There is a need to impart some element of personal deterrence although, as I said, his past experiences up until this time may serve as a salutary experience.  There must always be, in relation to reckless wounding offences and drug supply offences, some element of general deterrence but, again, these are matters of degree having regard to the circumstances in which the offences are committed.

60. I must promote his rehabilitation, make him accountable for his actions, denounce the conduct of the offender and recognise such harm as was done to the victims of the assaults.  I do not believe, however, I need to make an order or orders that would protect the community from the offender.  With regard to the subjective circumstances, as identified by his learned counsel, I accept, as I have noted from my findings of fact, most of the matters that she has identified.  Both the Crown and the defence indicated that the "s 5 threshold" had been crossed, that is, no other penalty other than a term of imprisonment can be imposed for each of the offences.

61. The matter might have stood differently if each of the offences had come before me by themselves, without consideration of, for example, aggravating factors for the second offence in terms of committing offences whilst on conditional liberty and also consideration of the concept of totality of criminality.

62. With regard to s 44 of the Act and, particularly the issue of ‘special circumstances’, I pointed to one of the special circumstances. The fact that I am imposing a sentence that is partially accumulative upon another sentence is another special circumstance. In my view, the prisoner needs an extended period of time to adjust to community living and certainly needs an extended period of time to receive professional assistance, given his language difficulties, and what I see his future isolation in the community by reason of an absence of family support in Australia and, it would appear, an absence of people that have an interest in his welfare, which is a very sad situation.

63. Ultimately, I concluded that I must impose terms of imprisonment in relation to each offence.  I should point out, by reference to the submissions about s 5 that, in the context of the man who has spent over a year and five months in pre‑sentence custody, there is no other sensible order that could be made other than a term of imprisonment taking into account the time that has already been spent in custody.

64. The last matter I wish to refer to, just very briefly, is the fact that learned counsel for the prisoner provided me with some statistics. They did not provide much assistance. There are limitations to statistics in the best of circumstances. They might give some idea of a range of sentences imposed in the higher courts but the particular statistics I was provided were largely concentrating on non‑parole periods in respect of offences under s 25A(1) and s 35(4) of the Crimes Act, but as I pointed out in the course of argument, non‑parole periods out of context are completely meaningless for the purposes of assisting one to arrive at an appropriate sentence.

65. The Crown very helpfully, I should point out, suggested a structure of sentencing not dissimilar to that that I have settled upon, save for the fact that I have determined that there should be a non‑parole period in respect of a matter for which I am not required to fix a non‑parole period, if only to provide a measure of the extent of accumulation of the sentence for the offence under s 35(3) Crimes Act 1900 which, of course, as we all know from the operation of Pt 4, Div 1A, of the Sentencing Procedure Act requires the fixing of a non‑parole period. Thus hopefully taking into account all the relevant matters that have been identified in the submissions that require comment at this point, and I certainly have not taken into account the submissions, I will sentence the prisoner.

66. In relation to the offence of supply prohibited drugs on an ongoing basis, in relation to that offence you are convicted.  You are sentenced to a term of imprisonment by way of non‑parole period of ten months' imprisonment to commence on 12 October 2017, expiring on 11 August 2018 with a balance of sentence of one year one month, expiring on 11 September 2019.

67. In relation to the offence of reckless wounding, taking into account the matter on the Form 1, you are sentenced to a term of one year imprisonment by way of non‑parole period to commence on 12 August 2018 and to expire on 11 August 2019.  In relation to that sentence, I fix a balance of sentence of one year six months expiring on 11 February 2021.  You will be eligible for release to parole on 11 August 2019.  The total sentence is three years four months with a non‑parole period of one year ten months.

68. In relation to s 166 certificate, sequences 1 to 5 of the relevant H number, those matters are withdrawn and dismissed. Could you ask the prisoner if he understands the sentence I have imposed.

OFFENDER:  Yes.

HIS HONOUR:  You are eligible to release to parole in August of this year, on 11 August 2019.  Do you understand what being released to parole means?  Has that been explained to you by your lawyers?

OFFENDER:  Yes.

HIS HONOUR:  What is his answer?

INTERPRETER:  Yes.  With the parole report, he said.

HIS HONOUR:  If you are released to parole you will be supervised by a parole officer.  Otherwise, that person may be referred to as a Community Corrections Officer and your parole will be supervised by an organisation called the Parole Authority and there will be conditions of your parole.  There will be conditions in relation to employment, not using drugs, reporting to an officer of the Community Corrections Service and perhaps other conditions.  If you do not comply with the conditions your parole may be revoked.  I see in the material that you are not an Australian citizen, is that correct?

INTERPRETER:  I am a permanent resident, your Honour.

HIS HONOUR:  Yes.  As a permanent resident, it is possible that the Department of Immigration may wish to speak to you before you are released but you will need to speak to your lawyers and get some advice in relation to that possibility.  I am not an expert in immigration law and I am not here to give you any advice about that.

All I am saying is, if you are released to parole, there will be conditions relating to your behaviour and if you do not comply with those conditions, the Parole Authority can revoke your parole and return you to custody and require you to serve the balance of the sentence.  Do you understand that?

INTERPRETER: Yes.

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Decision last updated: 07 November 2019