R v Coleman

[2024] NSWDC 658

District Court

New South Wales

Medium Neutral Citation:

R v Coleman [2024] NSWDC 658

Hearing dates:

7-8 November 2024

Date of orders:

8 November 2024

Decision date:

08 November 2024

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See pars [51], [54].

Catchwords:

CRIME - SENTENCE – Using offensive weapon to prevent lawful apprehension – Aggravated break, enter and steal – Driving recklessly, furiously or at a speed dangerous to public – Having face disguised with intent to commit indictable offence – Special circumstances – Referral to Drug Court of NSW.

Legislation Cited:

Children (Criminal Proceedings) Act 1987, s 15(1),

Crimes Act 1900, ss 33B(1)(a), 112(2), 114(1)(c).

Road Transport Act 2013, s 117(2).

Cases Cited:

R v Brewster [1998] 1 Cr App Rep 220

R v Ponfield (1999) 48 NSWLR 327

Veen v R (No. 2) (1988) 164 CLR 465 at 477

Texts Cited:

Nil.

Category:

Sentence

Parties:

Crown – R (NSW)
Offender – Albert Coleman

Representation:

Counsel:
Crown – Mr Chua.
Offender – Ms Connell.

Solicitors:
Crown – Office of the Director of Public Prosecutions (NSW)
Offender – Awada Legal

File Number(s):

2023/00352044

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Albert Coleman stands for sentence as a consequence of pleading guilty to at least four charges. Mr Coleman was born in October 2003. He is currently 21 years old. The offending with which I am concerned occurred when he was aged 20. The first charge to which he has pleaded guilty can be shortly described as using an offensive weapon, or the like, to prevent his lawful apprehension. That is an offence contrary to s 33B(1)(a) of the Crimes Act 1900. The maximum penalty for that offence is 12 years’ imprisonment. That offence is also known as Sequence 2.

2. The next crime is an aggravated break, enter and steal committed on 31 October 2023. The first offence had occurred on 14 October 2023. The circumstances of aggravation of the breaking, entering and stealing was that the offender knew that there were persons present in the house at the time of the breaking and entering. That is an offence contrary to s 112(2) of the Crimes Act 1900. That offence is also known as Sequence 14. The maximum penalty for that offence is imprisonment for 20 years. There is a standard non-parole period of five years which I would have to apply if the offender pleaded not guilty but was found guilty after trial, and where the objective seriousness of the case was in mid-range.

3. The third offence happened later on the same day, 31 October 2023, after the breaking, entering and stealing. One of the items stolen was a Bentley motorcar. The third offence, which can be described as Sequence 10, is a charge of driving recklessly, furiously or at a speed that was dangerous to the public. This was the first offence of this kind that the offender committed. That is an offence contrary to the Road Transport Act 2013 s 117(2). The maximum penalty is nine months’ imprisonment and/or a fine of $2,200. The offence also carries a licence disqualification period of three years automatic, or one year at the minimum.

4. The fourth offence is known as Sequence 12. The offence can be described as having his face disguised with intent to commit an indictable offence. That is an offence contrary to s 114(1)(c) of the Crimes Act 1900. The maximum penalty for that offence is imprisonment for seven years.

Facts

Sequence 2

5. The facts are concise, and I shall quote them. The first offence, known as Sequence 2, occurred, as I said, on 14 October 2023. At about 1.40am on that day, the offender was sitting in the passenger seat of a silver Toyota Kluger bearing Queensland registration 584CX6 which was being driven along Kings Road, Vaucluse. For a reason not given in the facts, police activated their warning lights and siren, but the Toyota Kluger failed to stop, and a police pursuit commenced. The car was being driven on the incorrect side of the carriageway at a speed of approximately 100 kilometres per hour. Whilst the driver was so controlling the vehicle, the offender opened the window on the passenger’s side and threw out of it a number of items seeking to deter the police pursuit.

6. The first thing thrown by the offender was a red fire extinguisher. That was followed by several pieces of a brick. The pursuit was terminated, but the offender threw another piece of brick at another police vehicle, and that piece of brick connected with the C pillar of that vehicle, causing some damage to it. Surprisingly, the offender turned on his mobile phone and photographed himself throwing items from the moving vehicle at the pursuing police car. Still photographs taken from the offender’s mobile telephone show he is engaged in that activity. The police recovered the red fire extinguisher and the pieces of brick, and they returned DNA which matched that of the offender.

Sequence 14

7. The remaining offences occurred on 31 October 2023. At about 2.20am on 31 October 2023, the offender broke and entered the house in Centenary Avenue, Hunters Hill. The breaking was technical. He opened the closed but unlocked glass sliding back door of the premises. At the time, the occupiers of the premises, Mr Jeffrey Gao, and his wife, Ying Zhao, who is also known as Jessi, were asleep in the premises. At around 2.20am, Jessi heard heavy footsteps outside her bedroom window. She then heard a car engine start, and that caused her to get out of bed. She walked into the dining room and saw that the back door was being held open by a bucket, which had been placed there to impede its being closed.

8. Jessi noticed that the car keys were missing and woke up Jeffrey by yelling, “Where is your car keys?” Jeffrey searched for the keys and then noticed that his black Bentley Bentayga, registered number EXO, was no longer parked on the driveway of the premises. The offender took the Bentley Bentayga along with the following items from the residence: a laptop computer, a dental scanner, a Rolex watch, and a black Yves Saint Laurent handbag containing eye cream, sunscreen, bank cards, and a Chinese driver’s licence. Clearly this breaking, entering, and stealing occurred without the consent of the owners.

Sequence 12

9. At about 3.25am, the Bentley Bentayga was recorded on closed-circuit television footage attending a BP service station at West Ryde. The offender was seated in the driver’s seat wearing a cream coloured balaclava, and a person in the front passenger seat was wearing a black coloured balaclava. The fact that the offender was wearing a cream coloured balaclava at the BP West Ryde is the offence contrary to s 114(1)(c) of the Crimes Act 1900.

Sequence 10

10. A video located on the offender’s mobile phone shows the offender sitting in the driver’s seat of the Bentley wearing the stolen Rolex watch. That video, again recorded by the offender himself, was taken at 3.35am. The final offence of driving recklessly, furiously, or at a speed or manner dangerous to the public then occurred. A speed camera located at the intersection of Silverwater Road and the M4 Western Motorway on-ramp at Silverwater captures the Bentley travelling at a speed of 194 kilometres per hour in a 70 kilometre per hour zone. In other words, the offender was driving the Bentley at a speed in excess of 124 kilometres per hour over the speed limit.

11. On 1 November 2023, the Bentayga was seen by police. The police helicopter was advised and a short time later the police helicopter spotted the motor vehicle. The offender was apprehended nearby and cautioned and placed under arrest. The police seized his mobile phone. Another thing that was shown on the offender’s phone was a screenshot of a map depicting directions to Centenary Avenue, Hunters Hill, that is likely to have been placed on the offender’s telephone to direct him to the house where the Bentley Bentayga was usually kept. The offender’s phone was recorded as connecting to the Bluetooth in the Bentley at 2.23am on a Cellebrite download. Event-based monitoring conducted on the offender’s mobile telephone number resulted in its being located in Hunters Hill at the time of the aggravated breaking and entering. As was his right, the offender declined to participate in an electronically recorded interview.

12. A Senior Constable Giblin had asked the offender, “Where is the watch?” and the offender replied, “I sold it already.” The agreed facts tell me that none of the property stolen from Centenary Avenue was recovered, but I believe that refers to the portable items. The unportable item, the Bentley Bentayga, seems to have been recovered by the police when they arrested the offender on 1 November 2023.

Objective Seriousness

Sequence 2

13. The Crown has submitted that the seriousness of the first offence was “moderately serious.” I assume by that is meant that it was somewhere near the mid-range of objective seriousness. The Crown pointed out that there was potential risk of a serious motor vehicle accident occurring as a result of the conduct of the car being driven by another and by the conduct of the offender himself.

14. Of course, the driver of the vehicle was hardly able to control the vehicle at a speed of 100 kilometres per hour in a suburban street and throw items at the police car pursuing it. That could only occur if he drove on the incorrect side of the carriageway, leaving it to the passenger in the vehicle to throw objects at the police cars that were in pursuit. It is clear that the red fire extinguisher, being metal, could impede the progress of the police car, or could have collided with some other motor vehicle on the street, or could even have struck a pedestrian on the footpath adjoining the roadway if there were any pedestrians about at 1.40am.

15. The Crown’s submissions contained this: “Although no injury was occasioned to any person, that was more due to dumb luck than any planning on the offender’s part.” Dumb luck might have some meaning in the vernacular, but it is hardly appropriate in written submissions to a Court. I assume it means that it was purely fortuitous that no one was injured, but that would depend upon how many people were about at 1.40am and how busy or unbusy the roadway was at that time of the morning.

16. However, adding to the seriousness of the offence is the fact that the offender achieved the purpose intended, that is, avoiding the apprehension of the driver and the passenger of the vehicle, and the vehicle being free to continue to do whatever it was doing in the eastern suburbs in the early hours of the morning.

17. Very properly, the Crown’s submissions point out that care must be taken in how the manner of driving the vehicle is taken into account, because there is no evidence to establish that at any time the offender was driving the vehicle. However, throwing things out of the window of the passenger side of the car could only have effect if the car was being driven on the incorrect side of the carriageway. I accept that this is in the mid-range of seriousness for offences of this nature.

Sequence 14

18. Unfortunately, aggravated breaking, entering, and stealing is all too common a crime, but it is also a serious crime. The Crown has addressed me about the guideline judgment in R v Ponfield (1999) 48 NSWLR 327, but much water has passed under the bridge since that guideline judgment was published. I was promised by Mr Chua, who appeared yesterday for the Crown, that evidence would be adduced as to the value of the Bentley Bentayga, but that has not occurred. I know it to be a luxury motor vehicle, but I do not know how old it was, and no evidence has been put before the Court as to how valuable the vehicle was.

19. However, by its very short registration number, it is likely that it was perhaps expensive, perhaps historic, but clearly appears to have been the delight of the owner of the property, Mr Jeffrey Gao. Fortunately, there was no damage or vandalism to the residence in question. And although the portable property was not recovered, there is no actual valuation of the property that was stolen, and there is no evidence as to whether any of the items had any sentimental value to their owners.

20. However, it is important to bear in mind what fell from the English Court of Criminal Appeal in R v Brewster [1998] 1 Cr App Rep 220, which was cited with approbation in Ponfield. The Court said this:

“Domestic burglary is common and has always been regarded as a very serious offence. It may involve considerable loss to the victim. Even when it does not, the victim may lose possessions of particular value to him or her. To those who are insured, the receipt of financial compensation does not replace what is lost. But many victims are uninsured, because they may have fewer possessions, they are the more seriously injured by the loss of those they do have. The loss of material possessions is, however, only part (and often a minor part) of the reason why domestic burglary is a serious offence.

Most people, perfectly legitimately, attach importance to the privacy and security of their own homes. That an intruder should break in or enter, for his own dishonest purposes, leaves the victim with a sense of violation and insecurity. Even where the victim is unaware, at the time, that the burglar is in the house, it can be a frightening experience to learn that a burglary has taken place, and it is all the more frightening if the victim confronts or hears the burglar. Generally speaking, it is more frightening if the victim is in the house when the burglary takes place, and if the intrusion takes place at night; but that does not mean that the offence is not serious if the victim returns to an empty house during the daytime to find that it has been burgled.”

21. The Crown submitted that this offence fell just below the mid-range of objective seriousness, bearing in mind that the occupants were actually disturbed by the occurrence of the offence and by the fact that the Rolex watch and the Bentley Bentayga were valuable. The Crown also submitted that the offence demonstrated some degree of planning by virtue of the offender’s use of a balaclava, but the Crown concedes that there appears to be no level of “professional planning.” However, the Crown did not refer to the fact that the route to the house where the Bentley Bentayga was kept was on a map contained electronically on the accused’s phone, indicating that this may have been a targeted offence.

22. Furthermore, as to the use of the balaclava, it must be pointed out that that is the subject of a crime in itself and there should be care taken not to double-count.

Sequence 10

23. The final offence, driving at a speed dangerous to the public, was a serious example of the offence, but the offence itself does not carry any grave penalty. However, exceeding the speed limit by 124 kilometres per hour is, in any event, a substantial breach of the law in the provision in the Road Transport Act, and it clearly was in the mid-range just by reason of the extent of the speed at which the vehicle was driven.

24. However, I must point out that there is no evidence as to how much traffic there may have been on Silverwater Road and the M4 at the time of the offending, near 3.30am. Nor is there any evidence, for example, that there was rain or adverse climatic conditions which would have made the driving of a vehicle at such a speed even more dangerous.

Personal Circumstances

25. I turn then to consider the personal circumstances of Mr Coleman. They are really contained in reports of Ms Vanessa Edwige, a registered psychologist. Ms Edwige’s first report bears date 28 May 2024, following upon her interviewing him by AVL for one and a half hours on 21 May 2024. That was in connection with another offence or offences.

26. Her second report appears dated 3 November 2024 and followed upon a 40-minute interview on 24 October 2024 by AVL. Exhibit 1, those two reports, has annexed to it the curriculum vitae of Ms Edwige which clearly shows that in her work history she has had a large number of interactions with persons of Indigenous background. The history obtained by Ms Edwige in her first report is this:

“Mr Coleman is a 20 year old Gamilaroi, young man through the ancestral birthrights of his father. Mr Coleman’s mother is also Aboriginal. Mr Coleman believes she is from Dubbo, NSW which is Wiradjuri, country. Mr Coleman was born in Gosford… Mr Coleman is the only biological child to his parents. Mr Coleman has one older sister and three older brothers from his mother’s previous relationship and one older brother and two younger sisters to his father’s relationships.

Mr Coleman lived until the approximate age of 10 years in Kurri Kurri and Cessnock... Mr Coleman’s parents separated when he was a young child. ‘Don’t remember what it was like living with both mum and dad.’ Mr Coleman’s mother did not misuse substances. ‘She lost her older kids to DOCS because she used drugs and alcohol. Got herself clean before me and got her other kids back. Dad has always used drugs and alcohol. Always in and out of gaol. Didn’t have much to do with him. Always in and out of gaol.’

Mr Coleman lived with his maternal grandfather, mother, older brother and older sister in Cessnock...’Mum worked all the time. She had heaps of jobs. Mum did traffic control, worked in restaurants, and as a cleaner. She is not working now. She was working as security at chemists and pubs. She takes care of my kids sometimes so she stopped working. She always made sure we got fed and had a good household.’

Mr Coleman’s older brother was misusing substances. ‘He was always in and out of juvie. He was running amok.’

Mr Coleman’s mother was married when Mr Coleman was 10 or 11 years of age. ‘He is a white fella.’ He was always working. He was good to mum. They are still together. They live in Doonside.’ Mr Coleman’s stepfather was and is a landscaper. ‘He has his own business.’ Mr Coleman’s maternal grandfather moved out after his daughter was married and moved to Dubbo... He passed away last year.

Mr Coleman lived in Aboriginal housing in Doonside. ‘There were junkies everywhere. Boys running amok.’ Mr Coleman started getting into trouble with the police at 11 years of age. ‘Started hanging around this group of mates, some older, some younger. Got onto the ice at about 11. Started breaking into houses and thieving.’

Mr Coleman went to Reiby Juvenile Justice Centre when he was approximately 13 years of age.

Mr Coleman was abused at Reiby. [REDACTED] Mr Coleman was abused at Cobham, when he was 15 years old. [REDACTED] Mr Coleman was physically assaulted at Cobham when he was 17 years of age. ‘I started going off a bit. Coori Bloke came into my cell and bashed me for 2 or 3 minutes and left.’

Mr Coleman had his first serious relationship at 13 years of age. He continues to be in this relationship. Mr Coleman and his partner had a child (son) together when Mr Coleman was 14 years old and his partner was 17 years old. Mr Coleman and his partner had another two children (daughters) and the youngest child is now three years old.

Mr Coleman was living with his partner and children prior to being incarcerated for... offences in Dean Park, NSW. ‘She is over me coming in and out of gaol. She needs my help with the kids. I need to get off the drugs. I think because of what happened to me in juvie. Doing NA program in here. Back on the BUPE program. Not using in gaol. Heaps of drugs in here. Want to be a father to my kids.’”

27. In talking with me yesterday, Mr Coleman appeared by AVL from the MRRC. Mr Coleman told me that he is still in the relationship with the mother of his children, that that relationship was good. They were in contact daily by telephone, and that appears to be the most meaningful thing for Mr Coleman at this time in his life, his partner and their three children. I am sure that Mr Coleman does not want his children to have the same unfortunate background that he has had.

28. I turn now to the offender’s education. The offender attended Kindergarten to Year 6 at the Weston Public School, at Marayong Public School and at Hobartville Public School. He started high school at Doonside High for part of Year 7. He was then referred to Plumpton House School but only completed two weeks there and left. Plumpton House School provides an alternative educational environment which caters for the academic, social and behavioural needs of students in years 5 to 10 with severe behaviour problems.

27. Since he left Plumpton House, the offender has had no further mainstream education. The offender told Ms Edwige that he struggled with numeracy and has difficulty concentrating. The history which I quoted also referred inter alia to the offender’s taking up with the wrong crowd and using illicit drugs. The AOD history recorded by Ms Edwige is this:

“Mr Coleman reported that he started smoking marijuana and drinking alcohol at ten years of age. ‘Bad drinker. Drank a lot up until now.’ Mr Coleman reported that he drinks alcohol when he does not have any other drugs. He reported that he can drink up to two bottles of Jack Daniel’s a day. Mr Coleman reported that he stopped smoking marijuana when he was approximately 18 years of age. Mr Coleman reported that he started using crystal methamphetamine (ice) at 11 years of age until he was 16 years of age. He then started using heroin from 16 years of age until he was incarcerated....

Mr Coleman reported that he attended Ted Noffs Foundation PALM Randwick when he was 17 years old. He reported that he completed ten days before he was asked to leave. Mr Coleman reported that he just completed an assessment for Wayback Drug and Alcohol Rehabilitation Centre. ‘I really want to better myself. I am not using it to get out of gaol. I actually want to do rehab’.

Mr Coleman is attending NA meetings whilst he is in gaol. Mr Coleman reported that he was attending drug and alcohol counselling with CRC prior to these offences. Mr Coleman reported that he is currently on the Buvidal treatment program whilst in gaol.”

30. Mr Coleman confirmed to me yesterday, through both what he said and what his solicitor said, that he continues on the Buvidal treatment program at the moment. The offender was diagnosed with ADHD when he was a young child. He was prescribed Ritalin at the age of four years and took that drug until he was ten years old. He was then placed on Concerta, which he ceased taking at the age of 13 years.

31. Ms Edwige also tells me that the offender was diagnosed in childhood with early developmental delay. There is a history of schizophrenia in the family, but the offender himself does not show any symptoms of that very serious condition.

32. He has a history of anger outbursts since he was a child. That, to an extent, is confirmed by a number of restrictions placed on him for breaching prison routines. The offender’s full-scale IQ is in the low average range of intelligence, with verbal comprehension in the borderline range of intelligence. This is a case in which the Bugmy principles are very clear. Ms Edwige said this about childhood disadvantage:

“Mr Coleman describes a childhood and adolescence that was marred by early exposure to substance misuse, parental incarceration, child abuse and interrupted schooling. These adverse childhood experiences significantly impact on a child’s social and emotional wellbeing. In presenting the impact of this disadvantage, I have cited research from the Bugmy Bar Book, which I am of the opinion apply to Mr Coleman’s experience.

Mr Coleman was exposed as a child to his father’s substance misuse and then his older brother’s substance misuse throughout Mr Coleman’s late childhood and early adolescence. ‘The direct effects of early exposure to substance abuse on children may include: emotional and physical abuse and other forms of maltreatment; modelling of poor drinking and substance abusing behaviours; inadequate supervision; and separation from parents due to incarceration and hospitalisation. In turn, these factors increase the likelihood that children will themselves develop substance abuse patterns, making it more probable that they will come into contact with the criminal justice system [Bugmy Bar Book Project 2019 (Early Exposure to Alcohol and Other Drug Abuse)].’

‘One of the major factors contributing to the development of behaviours of substance misuse was found to be an individual’s environment: problematic adolescent drug use is more likely among those who are raised in extreme poverty, by sole parents, or where other family members use drugs. [Another citation from the Bugmy Bar Book]’.

Mr Coleman’s father has been incarcerated frequently throughout his life. Mr Coleman reported that he has had little contact with his father due to his incarcerations. Mr Coleman’s older brother also spent time in juvenile justice facilities throughout Mr Coleman’s childhood and early adolescence.

‘Parental incarceration has been found to interfere with the attachment relationship between a child and their parent or caregiver, cause financial hardship, disrupt care and living arrangements, and subject children to stigmatisation and shame. This may impact upon a child’s emotional, behavioural and psychological development and educational performance. [Another quotation from the Bugmy Bar Book]’.”

33. Ms Edwige then goes on to discuss the abuse to which the offender was subjected at both Reiby and Cobham. She pointed out that the offender did not report the abuse at the time, but I understand from what he told me yesterday, that steps have been taken for him to seek redress for the wrong done to him. Ms Edwige discussed the impacts of childhood experience of abuse in her report, which I need not quote. Ms Reiby summed up this section of her report in this fashion:

“Mr Coleman presents with a childhood history of disadvantage that, in my opinion, has resulted in significant developmental trauma. Mr Coleman’s psychological state and how he views himself in the world has been deeply affected by these adverse childhood experiences.”

34. Under the heading, “Diagnosis”, Ms Edwige said this:

“Mr Coleman is a 20-year-old young man who presents with developmental disadvantage and complex developmental trauma. A diagnosis was sought based on a comprehensive clinical interview. The process of interviewing for a diagnosis is my ability to listen for diagnostic clues, signs and symptoms of the DSM-5 disorders expressed or observed in the client during the clinical interview.

Through this process I follow up diagnostic clues with diagnostic questions to help specify a diagnosis. By using diagnostic questioning, I focus on the client’s signs, symptoms and behaviours, basing specific diagnostic questions on the DSM5 diagnostic criteria of a particular disorder.

Mr Coleman has a significant childhood and adolescent trauma history, which has impacted on his ability to self-regulate. His dysregulated behaviour (both internalising and externalising) from a young age indicates, in my view, that he experienced trauma as a child and adolescent and presented with complex developmental trauma as a result of disadvantage. Development trauma increases the risk of dysfunction in the areas of language development and functioning in the social, emotional and behavioural domains.”

35. She went on to diagnose a substance use disorder, namely use of opioids, post-traumatic stress disorder, largely resulting from the abuse that he experienced in juvenile detention, and a continuing ADHD. She recommended treatment. The treatment is therapy designed to create new default positions in the offender’s behaviour that hopefully, over time, old associations are less activated, and their intensity fades and is replaced by more appropriate behaviour.

36. She provides a treatment plan, which required referral to a psychiatrist with regards to his ADHD and pharmacological support and management. There needs to be an examination by a neuropsychologist to undertake a cognitive assessment, which may entitle the offender to NDIS support. He also needs a “culturally safe trauma-informed psychologist to address his trauma”. He needs to remain on the Buvidal treatment program, and have access to supportive drug and alcohol counselling after undertaking a residential rehabilitation course. Relevant to my role is this observation by Ms Edwidge:

“Further detention, in my opinion, will have significant impact on Mr Coleman’s mental health and social and emotional wellbeing. Mr Coleman requires a supportive, psychologically safe therapeutic environment to address his history of disadvantage. He requires the support of caseworkers to assist with the development of skills around self-care.

‘The experience of incarceration may have subtle, long-term effects on some prisoners…and the number so affected is likely to increase in harsher, more extreme or psychologically taxing prison environments. Imprisonment imposes a rigid routine on an offender that removes the potential for individual decision-making in many aspects of daily life...in removing the opportunities to exercise [these] skills, imprisonment can lead to institutionalisation, in which a prisoner becomes increasingly [un]able to leave independently, and may lose a sense of personal responsibility. Other manifestations of institutionalisation, including hypervigilance, aggression, emotional over-control, and loss of self-worth.’”

37. In short, the offender runs a real risk of institutionalisation. The shorter any prison sentence is, the better for his development, provided he undertakes the rehabilitation suggested by Ms Edwidge. The second interview conducted by Ms Edwige, on 3 November 2024, was not particularly helpful, as the offender was not in a “good headspace” at the time, and he wished to postpone the interview, but that could not be done because of the imminence of the sentencing hearing. On page 2 of the second report, Ms Edwidge said this:

“Mr Coleman reported that he was using heroin in the community prior to these offences to block all of the memories out from what happened to him in juvenile detention.”

38. The offender is recorded as saying this:

“Needed money again to feed my habit. Feel sorry for the people I robbed. I need help with what happened in my past. I’m not getting help. My PTSD was kicking in. Having flashbacks. Couldn’t block the emotions out. Had no one to talk to about it. I just want to be out there with my kids. I want to do better.”

39. In her second report, Ms Edwidge confirms the diagnoses that she had previously made. The Crown supplementary bundle, Exhibit B, contains numerous extracts from the offender’s history as a juvenile offender. That history is confirmed in the Crown’s written submissions and is set out in tabular form at paragraph 3.4, commencing on page 7 and finishing on page 9. That created some debate between Mr Chua, for the Crown, and Ms Connell, for the offender, and recourse was had to the Children (Criminal Proceedings) Act 1987 s 15(1), as to how the childhood criminal history could be used. Certainly, that could not make the offending for which the offender currently stands for sentence any worse or aggravate the offending itself, but can only be used to indicate that the offender has some attitude of “disobedience of the law”.

40. Mr Chua referred me to the dictum in Veen v R (No. 2) (1988) 164 CLR 465 at 477, which indicates that where there has been disobedience of the law, retribution, deterrence and protection of society ought indicate a more severe penalty being warranted. However, bearing in mind the disadvantage under which this young man has laboured for most of his life to date, it appears to me to be completely inappropriate to apply that dictum to the behaviour of a young man who could hardly be responsible for addictions caused by taking to alcohol and drugs at the age of ten or eleven, or being otherwise drawn into the wrong crowd because of poverty and disadvantage.

41. I should state that one matter that I must take into account is offences that occurred on 23 November 2021, when the offender was aged 18 years. He committed crimes of aggravated robbery in company, the aggravation being in the infliction of actual bodily harm. There was a further robbery in company, and the taking and driving of a conveyance without the consent of the owner. For that, this Court, sitting at Parramatta, sentenced the offender on 16 December 2022 to imprisonment for three years, with a non-parole period of 18 months. He was to be released on parole on 23 June 2023.

42. One can see that the first offence occurred on 14 October 2023, and the other offences occurred on 31 October 2023. He was arrested on 1 November 2023. At the time that he committed the current offences, he was on parole for the crimes committed on 23 November 2021. The offender was also arrested on 22 September 2023, but then bailed, for an affray which occurred on 22 September 2023. After he was arrested for the current offences, he was sentenced eventually by this Court, sitting at Parramatta, to imprisonment for five months, commencing on 30 October 2023 and expiring on 29 March 2024.

43. He committed the present offences whilst he was on bail for affray. Since he was taken into custody for these offences, the sentence for the affray commenced from the time of his arrest until 29 March 2024. It is common ground between the parties that the offender’s sentence, to be imposed by me, should commence on a date between 1 November 2023 and 30 March 2024 because, firstly, part of the period since his arrest has been for the sentence imposed by this Court at Parramatta for affray, and also because he committed these offences whilst on parole, and that parole period has not yet expired.

Consideration

Sequence 2

44. I have, in the circumstances, decided that the appropriate date to commence any sentence is 1 February 2024. I intend to impose an aggregate sentence for the Sequence 2 offence, use an offensive weapon to prevent lawful apprehension. Statistics available from the Judicial Commission tell me that there have been 44 cases. In one case, a Community Corrections Order was imposed, in two cases, an Intensive Corrections Order was imposed, and in 41 cases, a gaol term has been imposed. The median head sentence is 36 months, and the median non-parole period is 18 months.

45. The 80% range - that is, the lowest 10% of cases cut out and the highest 10% of cases cut out - gives me a range of head sentences between 18 months and 54 months, and a range of non-parole periods between 12 months and 36 months. I start the sentencing exercise for this offence with a term of 24 months. I reduce that by 25%, because it is agreed that the offender is entitled to a reduction of 25% because of his early plea of guilty. That reduces the term to 18 months, which I will take as an indicative sentence for that offence.

Sequence 14

46. Sequence 14 is the aggravated breaking, entering, and stealing. The statistics kept by the Judicial Commission tell me that there have been sentences passed for this offence in 1,259 cases. Community Corrections Orders have been imposed in 4.9% of cases. Intensive Corrections Orders have been imposed in 29.6% of cases, and prison terms have been imposed in 64.3% of cases. That amounts in total to 810 cases. The median head sentence is 36 months and the median non-parole period is 18 months. The 80% range is of head sentences between 24 months and 54 months, and the range of non-parole periods of between 12 months and 36 months. When I factor in a plea of guilty and the age of between 18 and 20 years, I find 87 cases, which give me a median head sentence of 30 months and a median non-parole period of 18 months.

47. As I pointed out earlier, there is a standard non-parole period of five years. I start this sentencing exercise with a term of 32 months. I reduce that by 25% because the offender’s plea of guilty. That reduces that term to 24 months, which I take as the indicative head sentence. Because there is a standard non-parole period, I’m required to state what non-parole period I would have imposed had I not been imposing an aggregate sentence. The non-parole period that I would have imposed for this offence alone is 18 months imprisonment.

Sequence 10

48. Sequence 10 is driving recklessly, furiously or at a speed or in a manner dangerous to the public. As I said, the maximum penalty is nine months imprisonment. I start this sentencing exercise with an initial term of eight months. Reducing that by 25%, I obtain an indicative head sentence of six months’ imprisonment.

Sequence 12

49. For the final offence, that of having one’s face disguised with intent to commit an indictable offence, the offence contrary to section 114(1)(c) of the Crimes Act. Only one sentence has been passed in this Court for that offence. That one case was an indicative sentence of 24 months with a non-parole period of nine months. The statistic is not at all helpful.

50. The crime is really at the bottom of the range for such offences. I start with a head sentence of 12 months. I reduce that by 25% for the plea of guilty. That gives me an indicative head sentence of nine months. The indicative head sentences in total amount to a sentence of four years and nine months.

Aggregate Sentence

51. In my view, the appropriate aggregate sentence is imprisonment for four years. The question then becomes the non-parole period. In this case, applying the statutory nexus between the head sentence and the non-parole period, the non-parole period would be three years. However, this is clearly a case of requiring special circumstances. I intend to impose a non-parole period of two years. As I said, that will start from 1 February 2024.

Referral to Drug Court of NSW

52. The Crown has submitted that if the offender is sentenced to a term of imprisonment with an unexpired non-parole period of 18 months, and an unexpired total sentence of less than six years, the Court should give consideration to making an order referring the offender to the Drug Court to determine whether the offender should be the subject of a compulsory drug treatment order. I did not hear Ms Connell on that issue yesterday afternoon, but I now invite her to tell me whether she thinks that is an appropriate path to follow.

53. CONNELL: Yes, your Honour. I think, in the circumstances, it is appropriate.

54. HIS HONOUR: I refer the offender to the Drug Court of New South Wales to determine whether he should be the subject of a compulsory drug treatment order.

55. Any other orders sought?

56. CONNELL: No, your Honour.

57. HIS HONOUR: Mr Johnston, I do wish you well. My job is constrained by the law, as you would know. The drug treatment order, if you can get one, would probably be the most beneficial thing, and it also will probably shorten your time in gaol. Do you understand?

58. OFFENDER: Yes, your Honour. I - I just don’t know if they’ll take me because of my, like, violent, like, history of my charges.

59. HIS HONOUR: Yes. Well, that’s what they’ll have to determine.

60. OFFENDER: Yeah.

61. HIS HONOUR: You can’t go to the Drug Court for crimes of violence, but none of the ones that I’ve sentenced before would be classified as crimes of violence.

62. OFFENDER: Yeah.

63. HIS HONOUR: The only issue about that might be the first one, the throwing things out the window of the car at the police.

64. OFFENDER: Yeah.

65. HIS HONOUR: Good luck to you, sir.

66. OFFENDER: Thank you.

67. HIS HONOUR: The Court will adjourn.

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Decision last updated: 14 March 2025