R v Dean

[2024] NSWDC 527

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Dean [2024] NSWDC 527

Hearing dates:

8 November 2024

Date of orders:

8 November 2024

Decision date:

08 November 2024

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

(1) Taking into account the plea of guilty in relation to each offence and all the matters I have mentioned and after giving weight to the matters on the Form One, I impose an aggregate sentence of 2 years’ imprisonment to commence 8 November 2024, to be served in the community pursuant to an Intensive Corrections Order upon the conditions found at paragraph [95].

Catchwords:

CRIME — Property offences — Break and enter with intent to commit serious indictable offence – Break, enter and commit serious indictable offence – Take and drive a conveyance

CRIME — Violent offences — Assault police officer in the execution of duty

SENTENCING – Objectively serious offending in context of significant criminal history – History of childhood trauma and drug, alcohol, and gambling addiction – Mental health diagnosis – Significant remorse, contrition, and commitment to treatment plan to become drug and alcohol free whilst on an extended period of bail pursuant to s 11 – Entitled to one last chance

Legislation Cited:

Crimes Act 1900 (NSW) s 60(2); s 112(1)(a); s 113(1); s 114(1)(b); s 154(1)(a)

Crimes (Sentencing and Procedure) Act 1999 (NSW) s 11; s 25D

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

R v Valentini (1989) 46 A Crim R 23

Veen v The Queen (No 2) (1988) 164 CLR 465

Category:

Sentence

Parties:

Director of Public Prosecutions (NSW) (Crown)
Kanye Dean (Offender)

Representation:

Counsel:
A Florance (Solicitor) (Crown)
E James (Counsel) (Offender)

Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Macquarie Law Group (Offender)

File Number(s):

2022/156995

Publication restriction:

Nil

JUDGMENT; Ex tempore; Revised

Introduction

Overview

1. Kane Dean was who was born on 2 November 1991 (“the Offender”), is now 33 years of age.

2. In his short life, the Offender has managed to achieve what can only be described as an appalling record of criminal convictions, including convictions for resist officer in the execution of duty (2010), goods in personal custody suspected of being stolen (2010), break, enter, and steal (2013), larceny (2013), common assault and stalking (2012), shoplifting (2013), dishonestly obtaining financial advantage by deception (2014), aid and abet serious indictable offence (2015), aggravated assault (2016), larceny (2016), take and drive conveyance without consent (2016), destruction of property (2016), drug possession (2017), resist officer in execution of duty (2017), and destroy or damage property (2017).

3. He has been before the Court on many occasions. He has been dealt with by the Drug Court repeatedly and has received many sentences which have been suspended either wholly or partly and been placed on bonds. He has received periods of full-time custody. None of which seems to have deterred him from reoffending.

4. I will not go into more detail, sufficed to say the Offender has a terrible record of criminal activity and has been treated over and over again by the Courts in a way that, with the benefit of hindsight, must be seen as extremely lenient and perhaps a little naive.

The offences

5. The Offender is now before me for another series of significant crimes to which he has pleaded guilty, the details of which are as follows.

Offence	Section and Act	Maximum Penalties	Standard Non-Parole Period
Assault Police Officer in the Execution of Duty (assault occasioning actual bodily harm) H91044284 Seq 3	S 60(2) Crimes Act 1900	7 years imprisonment	3 years imprisonment
Break Enter and Steal H91044284 Seq 4	S 112(1)(a) Crimes Act 1900	14 years imprisonment	Nil
Break Enter and Steal H91044284 Seq 6	S 112(1)(a) Crimes Act 1900	14 years imprisonment	Nil
Break Enter and Steal H91044284 Seq 9	S 112(1)(a) Crimes Act 1900	14 years imprisonment	Nil
Take and Drive Conveyance without Consent H91044284 Seq 10	S 154(1)(a) Crimes Act 1900	5 years imprisonment	Nil
Assault Police Officer in the Execution of Duty (assault occasioning actual bodily harm) H91044284 Seq 15	S 60(2) Crimes Act 1900	7 years imprisonment	3 years imprisonment
Break Enter and Steal H91178388 Seq 3	S 112(1)(a) Crimes Act 1900	14 years imprisonment	Nil
Break Enter and Steal H91178388 Seq 6	S 112(1)(a) Crimes Act 1900	14 years imprisonment	Nil
Charges to be dealt with on a Form 1 Form 1 Attached to Break Enter and Steal H91044284 Seq 9 H91044284 Seq 5 Break Enter and Steal s 112(1)(a) Crimes Act 1900 H91044284 Seq 11 Possess Housebreaking Implement s 114(1)(b) Crimes Act 1900 H91044284 Seq 12 Attempted Break Enter with Intent to Steal s 113(1)/344A Crimes Act 1900 Form 1 Attached to Break Enter and Steal H91044284 Seq 4 H91044284 Seq 13 Break Enter with Intent to Steal s 113(1) Crimes Act 1900 H91044284 Seq 14 Break Enter with Intent to Steal s 113(1) Crimes Act 1900 Form 1 Attached to Break Enter and Steal H91178388 Seq 3 H91178388 Seq 4 Take and Drive Conveyance without Consent s 154A(1)(a) Crimes Act 1900 H91178388 Seq 5 Break Enter with Intent to Steal s 113(1) Crimes Act 1900

6. The Offender was arrested on 31 May 2022, and refused bail at the Local Court. The Offender served nine months and two days until he was granted bail on 2 March 2023. He has remained on bail since that date without breach. There is no issue but that he should receive full credit for the nine months and two days he has spent in custody, solely referable to these offences.

History of the sentencing proceedings

7. The matter came before me on 8 November 2023, where an application was made under s 11 of the Crimes (Sentencing and Procedure) Act 1999 (NSW) (“CSPA”) to adjourn the sentencing for a period of one year so that the Offender could demonstrate, by reference to his conduct in that period, what he contended at the time was his commitment to, for the first time, dealing with the significant consequences of the trauma he suffered as a child, and in particular his mental health issues and his drug addiction issues.

8. I was satisfied, in the circumstances, that an adjournment for that purpose was appropriate. I extract from my reasons given on 8 November 2023:

[7] With some hesitation, and as I said to Mr Dean directly during the course of the argument, almost against my better judgment because he has had more than ample opportunity to change his ways, I am prepared to accede to the application, but on the conditions I am about to announce and on a clear understanding that these conditions are an essential part of my reasoning process as to why what I am about to order is appropriate and that any breach of them will need to be brought to the Court's attention. Whilst the Court will understand that there are some breaches of these sort of conditions that happen through inadvertence and no fault of their own, if there is a breach that does not fall into that sort of category, Mr Dean can expect the full weight of the law to come crushing down on him, which will be terrible for him, his family and probably society generally, but the Court in those circumstances will have been left with no alternative.

[8] Finally, even at the end of this process, and assuming Mr Dean complies with flying colours to the conditions, there is no promise and should be no expectation of a non-custodial sentence. Such an outcome may well not be possible in light of the objective and subjective matters to which I have referred. Nonetheless, it is not out of the question but whatever the ultimate outcome may be, the Offender's conduct during this 12-month period will be extremely relevant to my determination.

9. The matter is now back before me and I am satisfied that, during the period of the adjournment, the Offender has remained drug-free, has continued with his efforts to deal with his mental health issues and his drug addiction, has a stable family life, and whilst he is not in full-time employment at the moment has an offer of employment in the event that he is not sentenced to full-time custody. He is to be commended for his dedication to dealing with his underlying issues.

The central issue

10. There is no doubt that the s 5 threshold has been crossed and nothing short of a sentence of full-time imprisonment is appropriate.

11. The central issue before me, is taking into account what is obviously, at best for the Offender, a series of significant offences for sentence, together with matters on a Form 1, all of which can, at best, for the Offender be described as falling somewhere within the mid-range of objective seriousness, together with the Offender's appalling criminal history and the many chances, no doubt described by various judicial officers over the years as “last chances", I should determine that the Offender should be given another “last chance".

12. For reasons which I will now explain, I have decided to take that course. The Offender and his family need to understand that this really is his last chance and any breach of any of the conditions which I propose to impose on the Offender, so as to allow him to serve the term of imprisonment of 2 years, which I propose to order, be served in the community pursuant to an Intensive Corrections Order will result in catastrophic consequences for both him and his family.

13. My reasons are as follows.

The facts

14. I set out the facts as agreed by the parties, slightly edited by me.

Take and Drive Conveyance without Consent Sequence 4 FORM 1

15. The offender took a White CFMOTO motorcycle LCQ98, belonging to Zijie Li without their consent at a time on or about 9 March 2022.

16. At 2:50am Saturday the 12th of March 2022, the Offender was captured on Closed Circuit Television attached to the Oriental Express convenience store to ride the white CF MOTO motorcycle along the footpath of Parramatta Road, Camperdown. The Offender wore a grey hooded jumper with the hood up underneath a yellow high visibility jacket, black gloves with the word "FOX" printed in white along the hand and blue long pants.

Break Enter and Steal Sequence 3 SENTENCE

17. Oriental Express is a commercial convenience store located at 96 Parramatta Road, Camperdown. The convenience store is accessible by a glass double door which accesses the footpath along Parramatta Road, Camperdown. The convenience store contains a CCTV camera system. The Offender approached the front door and obtained a large blue handled screwdriver and jemmied the door ajar. The Offender entered the store and moved to the front counter and approached the cash till. The Offender emptied the till, placing an unknown quantity of coins into the side compartment of the duffel bag. The Offender rummaged through various drawers and boxes at the front desk obtaining an unknown quantity of cigarette packets, white packet Covid-19 Antigen tests and an Apple I-phone 6. He placed the items into the main compartment of the cream duffel bag, but also into a green enviro type shopping bag. The Offender obtained a key from within a draw and opened the second cash till, obtaining an unknown amount of cash from the register. The Offender attempted to open the third cash register till but was unable to open it. The Offender placed the proceeds within the duffle bag and moved to the back of the store. At 2:59 am the Offender ran out of the store with the satchel and green enviro bag which both appeared to contain a large amount of items.

18. The victim stated that the offender stole between $2,000 and $3,000 in cash; $2000-$3,000 in cigarettes and 20-30 boxes of COVID tests. The property belonged to Hua Dong Zheng.

Break and Enter Dwelling with Intent to Steal Sequence 5 FORM 1

19. Unique Whole Foods is a commercial convenience store located at 51-53 Flood Street, Leichhardt. The convenience store is accessible by a glass double door which accesses the footpath along Flood Street, Leichhardt. The convenience store contains a CCTV camera system which records visually internally and within the store and externally along the footpath entrance. The Offender was wearing the same clothing as worn at Oriental Express. He also carried a light coloured satchel which appeared to be empty.

20. At 3:20am the Offender rode and parked the white motorcycle bearing NSW registration LCQ98 outside the front glass double door of the store. He obtained a large blue handled screwdriver from within the duffel bag and attempted to jemmy the door open. After a short time, the Offender stepped back and kicked the doors open, causing damage to the glass insert within the doors. He ran through the open doors to the front cash registers and inspected three tills but found them to be empty. He moved further down to a cash register but found that empty as well. He continued looking through the building before running back towards the entry.

21. At 3:27am the Offender ran through the broken doors of the store and pulled them together to close them. The Offender got onto the parked motorcycle and rode up along the footpath before merging onto Flood Street towards the intersection of Flood Street and Marion Street, Leichhardt.

Break Enter and Steal Sequence 6 SENTENCE

22. Fantong Chinese Restaurant is a commercial restaurant located at 31 Norton Street, Leichhardt. This is a commercial space on the ground floor and a residential office space on the first floor which is accessed by an internal stair well. The restaurant is accessible by a glass double door which accesses the footpath along Norton Street, Leichhardt. The restaurant contains a CCTV camera system.

23. At 3:30am Saturday the 12th of March 2022, the Offender was captured on Closed Circuit Television outside the Fantong Chinese Restaurant to ride a white motorcycle along the footpath, bringing the bike to rest directly outside the restaurant. The Offender wore the same clothing as described in Sequence 3. The Offender got off the motorbike and walked towards the front door, obtaining a large blue handled screwdriver from within the duffel bag. The Offender used the screwdriver to jemmy the door open, entering the restaurant. The Offender approached the cash registers, produced a key. He opened the cash register and nearby cupboard drawers. He moved through the restaurant towards the kitchen before returning to the main restaurant. He moved to the staircase and walked upstairs to an office door which is situated up the first flight of stairs. He opened the unlocked door and remained in the room for a short duration. He rummaged through cupboards and located a safe within a cupboard. The Offender wheeled the electronic safe out of the office room into the stair well. He used the blue screwdriver and prised open the safe, causing damage to the door and locking mechanism gaining access to its contents. He rummaged through the contents, placing a number of documents and $200 in cash within the main compartment of the cream coloured duffel bag. He then closed the safe door, walked down the stairs and out of the restaurant.

24. The cash belonged to Christopher Shearman.

25. At 3:37am, he got onto the motorcycle and rode from the footpath onto Norton Street in the direction of Parramatta Road.

26. About 1:20 am Monday the 31st of May 2022, the Offender was arrested for unrelated matters. The Offender was conveyed to Ryde Police Station. He was later charged with these present offences.

Break Enter With Intent to Steal Golden Seafood Sequence 14 FORM 1

27. At about 1:10am on 30 May 2022, the Offender entered Golden Seafood Eastwood, a shop belonging to Stefanie Leung, located at 7/6 Progress Avenue, Eastwood. The offender forced entry to Golden Seafood with a silver flatheaded screwdriver that he took from the front pocket of the hooded jumper.

28. The Offender forced entry into the building by bending the top lock and cracking the front door before making entry into the location. A few minutes later, the Offender left without stealing any property.

29. Following the offender's arrest (detailed below), a search was conducted, and it was established that the previously locked front door was ajar, the top lock was bent and the front glass area was cracked. Nothing appeared to have been stolen.

Break Enter with Intent to Steal Anping Money Exchange Sequence 13 FORM 1

30. At about 1:15am, the Offender pushed and kicked the glass sliding door to Anping Money Exchange. The bottom of the glass door became loose and he pushed himself from the gap. He was wearing a helmet with a balaclava over his face.

31. Anping Money Exchange is a shop belonging to Shichao Song, located at 8/9 Progress Avenue, Eastwood.

32. The Offender wedged the front door open and forced it open using a screwdriver to force open damaging the door, rendering it inoperable.

33. He entered an internal locked secure door by jemmying it open. Then he opened multiple drawers in the office area. He was seen using a flat headed screwdriver. He wore gloves. He used the screwdriver to attempt to open a safe but was unsuccessful. He then left Anping Money Exchange.

34. Later, during the search, it was established that the previously locked front security door was open. The opening and closing mechanism was damaged. There was paperwork on the floor and scratch marks on the safety box under the front counter. Nothing was stolen but there was approximately $1,000 damage to the front security door.

Break Enter & Steal Taste of Shunde Sequence 4 SENTENCE

35. About 1:20am, the owner of Taste of Shunde Restaurant situated at Shop 15, A5, A7/1 Lakeside Road, Eastwood was sleeping at his home address when he received an alarm notification on his phone indicating an alarm activation within his shop. He has accessed the Closed-Circuit Television (CCTV) of the restaurant and identified a male inside the premises.

36. The offender had prised open the automatic sliding door key control unit from the door frame of Taste of Shunde. He manipulated the rear of the plate with the flathead screwdriver making the glass sliding door open. He walked into the store. He walked behind the front counter area and opened the till by reaching underneath it. He emptied the notes from the till into his backpack. He opened the coin compartment and took pieces of paper that had money attached to it. He walked around inside Taste of Shunde for about 2 minutes looking about.

37. Meanwhile, the owner observed the male come out of his premises through the hallway of the shopping centre complex to a red motor scooter parked out the front and obtain several tools from the motorcycle. The Male person then was observed coming in and out of the restaurant via the side door. The owner contacted '000' to alert Police.

38. With regards to the Taste of Shunde, it was later established that the front door was broken which was how he was able to gain entry. There was a total of approximately $3541.00 that was stolen from the shop.

Police attendance

39. A short time later Police arrived at the location. Police saw a red motor scooter parked with the engine running and facing outwards from the arcade entrance.

Take and Drive Conveyance Without Consent Sequence 10 SENTENCE

40. The Offender had ridden the red motor scooter bearing New South Wales number plates DLF66 to the location on 29 May 2022. The 2019 Kymco Like 200 scooter was parked by the owner, Jack Cornish, in a secured underground carpark at Bulwara Road Pyrmont on Friday 27 May 2022. That motor scooter was missing when Mr Cornish checked on 29 May 2022 and he had not given anybody consent to take it.

41. The Offender was then observed within the shop Evergreen Fresh World, crouched down and attempting to access a safe in the shop. Police announced their office and challenged the Offender.

Assault Police Officer in Execution of Duty occasioning ABH (Christie) Sequence 15 SENTENCE

42. The Offender ran out the front door and ran into the arcade section of complex, which was a dead end. Police followed, calling out for the Offender to stop however he ran directly into a closed door. The Offender turned around and ran directly at Inspector Mark CHRISTIE who attempted to take hold of the Offender, the Offender collided with Inspector Mark CHRISTIE causing his hand to bend backwards. This was done with such force that he sustained a comminuted impacted displaced fracture of the base of the 5th metacarpal including an intra-articular fracture line. It was managed non-operatively.

Assault Police Officer in Execution of Duty occasioning ABH (Hemmens) Sequence 3 SENTENCE

43. After colliding with Inspector CHRISTIE the Offender ran down the hallway of the shopping centre, past Constable Connor O'BEIRNE who attempted to grab hold of the Offender. The Offender managed to avoid Constable O'BEIRNE and ran straight at Constable Renee HEMMENS who was standing in the hallway. Constable HEMMENS grabbed hold of the Offender backpack and pulled him to the ground. During that activity, Const HEMMENS left wrist was twisted and her left hand was scratched. Const O'BEIRNE and Const HEMMENS took the offender to ground and handcuffed him. The Offender has resisted violently. Const HEMMENS sustained a red scratch and swelling to her left hand. This injury including swelling and bruising. Constable O'BEIRNE assisted Constable HEMMENS and Inspector CHRISTIE, in apprehending the Offender and placing him under arrest.

Arrest

44. A search of the shopping centre complex where the Offender was arrested revealed the Offender had broken into further separate shops. On the arrest of the Offender, he was searched and located inside his backpack was numerous items of property from these shops including $6895.95 in cash.

Break Enter & Steal Seabay Kitchen Sequence 5 FORM 1

45. A search of the Seabay Kitchen shop established that the previously locked front sliding glass door was opened and the lock was damaged. Approximately $1250 in cash was stolen from the shop. This property belonged to Jing Zhang.

Break Enter & Steal Evergreen Fresh World Sequence 6 SENTENCE

46. With regards to Evergreen Fresh World, the Offender had used a flatheaded screwdriver to jemmy open the door. He walked into Evergreen Fresh and checked the cash registers. He walked down to the back-office area of Evergreen Fresh. He kicked open the secured and locked office door. He used the flatheaded screwdriver and manipulated/forced open the locked door to the safe room. He saw the CCTV camera and turned off the power to the units which stopped the CCTV from recording further.

47. Where the offender had been observed by police, the previously locked side door was open. The door to the rear office was damaged with the latch broken. The 3 doors leading to different rooms near there had all been damaged. The handle to the safe and the safe code panel was also damaged. However, the safe had not been opened. Money was missing from the 4 floats kept above the safe, totalling $1420 cash. The damage was estimated to be $3,000. The property belonged to Zheng Jin.

Break Enter & Steal 1 Malatang Sequence 9 SENTENCE

48. As for No 1 Malatang Eastwood store, 1 Lakeside Road Eastwood, the previously closed front side door was open and damaged. The Offender had jemmied open the door and walked inside. A total of $5068.25 was stolen from the premises. The property belonged to Guangsi Ma. He left the store closing the door behind him.

Break Enter With Intent to Steal Traditional Cantonese Tase Sequence 12 FORM 1 (ATTEMPT)

49. A search of the Traditional Cantonese Taste restaurant at 9a/1 Lakeside Road Eastwood established there were jemmy marks around the lock at the front sliding door and had been damaged. The Offender did not gain entry.

Possess Housebreaking Implements Sequence 11 FORM 1

50. Upon his arrest, the Offender was wearing, inter alia:

1. black MZR brand helmet,

2. black balaclava,

3. navy blue/black long sleeved top with hood,

4. black DriRider gloves with red trim,

5. beige Eleven brand long cargo style pants,

6. black track pants underneath the Eleven pants

7. black Nike running shoes.

51. He was searched and located inside his backpack, were numerous tools that can be used as house breaking implements including a crowbar. In particular, Police located:

1. Black Backpack

2. 1 pair black socks

3. 1 Asics baseball cap

4. 1 Duracell Torch

5. 2 screws

6. 1 Stanley hammer

7. 1 crowbar

8. 1 yellow handled screwdriver

9. 1 black and yellow handled screwdriver,

10. 1 pair black garden gloves

11. 1 clear resealable money bag

12. Miscellaneous receipts and paper in backpack

13. 2 green safe keys

14. 1 Phillips head screwdriver

15. $81 dollars inside clear resealable bag

16. $213.45 cash

17. $710

18. $4700

19. $121

20. $70

21. $970 in multiple denominations attached to receipts

22. $30.50

Further CCTV and movements of the Offender between premises

52. A review of the combined CCTV footage shows that at about 1:09 am on 31 May 2022, the offender forced entry through glass swinging doors out the front of 6 Progress Avenue Eastwood. He drove the red motor scooter DLF66 through the hallway to the main mall area. Sensor lights were activated. He parked it in the corridor, facing the exit. The offender walked down the hallway and und into the corridor where the toilets are located. The offender attempted to force open a sliding door just north of the Golden Seafood restaurant and then walked toward the main foyer area of the mall.

53. He walked to the corridor where the bike was parked and then left 6 Progress Avenue while riding the scooter out of the front door that was previously forced open.

54. He then rode the scooter into 1 Lakeside Street Eastwood 'Justco Shopping Centre' from the direction of 6 Lakeside Street Eastwood. He drove to the end of the corridor and parked the bike out the front of No 1 Melatang with the scooter facing the entrance.

55. He then left and walked to the side staff kitchen door for Number 1 Malatang.

56. After leaving Number 1 Malatang, he rearranged his backpack and pockets and put a torch inside his backpack. He got onto the bike and rode about 10 metres down and then unsuccessfully attempted to open the door to Seabay Kitchen by pulling on it. He then drove a further 10 metres and parked the bike.

57. At about 1:26 am, he forced the doors open to Seabay Kitchen and entered the store. He then left shortly after, got on the scooter and drove down the alley parking it out the front of Evergreen Fresh.

58. At about 1:29 am, he moved the wooden shelving out of the way next to the side door.

59. At about 1:36 am, Police arrived.

60. At about 1:58 am, the offender exited Evergreen Fresh store. He ran from Police towards the locked fire escape doorway. He bounced off it and started running towards the police in the direction of the open exit hallway where the stolen bike is located. The offender was then arrested.

61. The Offender was conveyed to Ryde Police Station where he was introduced to the custody manager and read his rights as per part 9 LEPRA. The Offender was offered the opportunity to be interviewed where he declined.

62. Police seized the clothes that he wore which included a beige pair of long pants, underneath black track suit pants, and a red long sleeved top.

The Objective Seriousness of the Offending

63. On any view of it, the offending in relation to each and every one of the matters for sentence, together with the matters to be taken into account on the form one, are serious. I consider the best that can be said for the Offender’s conduct is that it falls very much somewhere around the mid-range of objective seriousness for offences of these types.

Aggravating and mitigating factors

Section 21A(2)(d) – Record of previous convictions

64. As I have said, the Offender’s record of criminal convictions is, to say the least, substantial. It commenced in 2008 in the Children's Court and culminates in the matters before me.

65. That record is relevant, not to increase the objective seriousness of the offending, but rather it rules out that the matters before me can be described as some sort of out of character aberration, rather they constitute evidence of a continuing attitude of disobedience of the law. That being the case, retribution, deterrence, and protection of society may well indicate that a more severe penalty is warranted: Veen v The Queen (No 2) (1988) 164 CLR 465.

Section 21A(2)(n) – Planned criminal activity

66. It is clear from the Agreed Facts that the series of offending was not some spontaneous nor isolated event. There was planning involved, perhaps not particularly sophisticated and it would be wrong to describe it as “professional planning", but nonetheless the conduct was planned. This is an aggravating factor.

Section 21A(2)(o) – Financial gain

67. It is obvious, and accepted, that the offending was committed for financial gain. Although perhaps not driven out of some form of greed to produce some great wealth for himself, but rather as a result of his need to feed his drug habits. This is an aggravating factor.

Section 21A(3)(k) – Plea of guilty

68. The plea of guilty for each offence is itself a mitigating factor to be taken into account over and above the 25% discount mandated pursuant to s 25D of CSPA.

The Offender’s subjective case

69. The Offender had an extremely deprived childhood. He was one of a number of half siblings. The details are confronting. Sufficed to say for present purposes, his father was murdered by one of his half sibling’s father when the Offender was about four years old. He witnessed his father being murdered in the family home in front of him. The next day, the Offender relocated to a refuge centre, as there had been a threat made about his and other members of the family’s lives, that is that his father's killer would return to the home to kill them.

70. The family then spent six months in a refuge.

71. Not unsurprisingly, the Offender has symptoms and has been diagnosed with post-traumatic stress disorder. He still has nightmares and flashbacks about the incident.

72. In addition, the Offender's family struggled financially during his childhood and adolescence. The Offender’s mother smoked cannabis throughout most of his childhood and adolescence.

73. The Offender, who was in and out of custody as a juvenile, reports that he was sexually abused whilst in juvenile justice by other inmates and guards.

74. As I have said, the Offender has been diagnosed with PTSD. In addition, he has also been diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder, and obsessive-compulsive disorder. He has been in and out of treatment over the course of his life. The psychiatric reports before me appear to reflect all of the above, as well as adding the diagnosis of antisocial personality disorder and substance abuse disorder.

75. As well as spending time in and out of juvenile justice centres during his adolescence, the Offender spent considerable time being homeless and living effectively on the streets.

76. The Offender commenced consuming alcohol when he was about 14 years old, commenced gambling from about the age of 18, and he commenced smoking cannabis at the age of about 11, increasing to daily. Around the age of 15 he started using heroin, when at 19 he replaced heroin with methamphetamine. He has also taken cocaine and MDMA from time to time over the years.

77. As is probably predictable, if not inevitable, from that brief recitation of the Offender’s history, the Offender was using methamphetamine at the time of his offending, although it is clear that this drug addiction is not to be seen as a mitigating factor: R v Valentini (1989) 46 A Crim R 23 at [25]. However, on the other hand, this substance abuse and its history and connection with the Offender’s mental health issues does to my mind provide an explanation for the offending and becomes very significant when I come to consider the prospects of the Offender being rehabilitated and/or reoffending. Moreover, his addictions can not be described as the consequence of some sort of act of free will.

78. He has completed a number of drug and alcohol treatment programs, which seem to have had some success in the short term but have always led to him relapsing and consequently taking up further criminal activities.

79. The Offender is now married to a supportive wife, he has managed to hold down employment and appears to be considered a reliable hard worker who has now developed a good work history, he has one child and another on the way, and appears to be a devoted father.

80. He has successfully been on a treatment plan to deal with his substance abuse and gambling problems, as well as his mental health issues for the whole of the period since September last year and proposes to continue on that course.

81. There is an updated Sentencing Assessment Report which confirms that, during that period, the Offender has complied with all of the conditions of his bail as ordered by me, which were strict, which means that he has scrupulously stuck to the treatment plan and that regular urine tests demonstrate that he has remained drug-free during that period.

82. The Report also confirms that the Offender has maintained, during that period, stable accommodation and continues to foster positive relationships with his partner and extended family and that, whilst he recently lost his employment in the construction industry, he has a job offer available to him, but not unreasonably is awaiting the outcome of his sentencing before making any decisions about that job offer.

83. The Sentencing Assessment Report specifically records the following:

“Mr Dean has demonstrated ongoing commitment to rehabilitation, actively engaging in mental health services, and counselling for alcohol and other drug use. Mr Dean denied any current recent substance use. He has remained abstinent for the last 12 months”.

Resolution

84. This is a difficult case. The fact is the Offender is being sentenced for a series of serious criminal matters and I am being asked to take into account upon sentence a number of other serious criminal matters. All of this in the context of the Offender’s suboptimal (to say the least) criminal history to date.

85. Against that is what I consider to be a very powerful subjective case with a deprived childhood, which most certainly qualifies him for leniency for the reasons explained in cases like Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. It also provides an explanation for his life of crime until recently.

86. Section 3A of CSPA mandates the factors to be taken into account upon sentence and they do not need to be reiterated. Section 5 prescribes that a term of full-time imprisonment is only to be imposed if there are no other options available.

87. In the event that a sentence of full-time imprisonment for a combined series of offences of less than three years, it is open to me to impose a term of full-time imprisonment to be served in the community pursuant to an Intensive Corrections Order. The guiding principle in making that decision is the protection of the community.

88. When I consider the Offender’s background, his not unsurprising history of mental health issues and drug, alcohol, and gambling addictions all of which, almost certainly are at least in part the consequence of that deprived childhood, combined with the fact that I am satisfied that the Offender has, probably, because he has found happiness with his wife and children, “turned the corner", but also because I think he has shown real contrition and remorse and a commendable determination to better himself, it is appropriate that he be given one last chance to demonstrate that he can become and remain a productive member of the community, be a good father to his children and a good husband to his wife by ceasing taking drugs and committing crime, and by undertaking gainful employment and looking after his family.

89. Nonetheless, in light of the objective seriousness of the offending and the criminal history of the Offender, which disentitles him to leniency that he would otherwise get if he had a clean record, a period of full-time imprisonment must be imposed.

90. I consider, having taken into account the 9 months he has already spent in custody, the last year he has spent on bail on quite stringent conditions, and after deducting 25% for the pleas of guilty and taking into account the matters on the Form One, that period of imprisonment should be 2 years as an aggregate to commence today.

91. The question then becomes should that term be served in full-time custody or should it be served in the community, pursuant to conditions being an effective continuation of the conditions the subject of his bail for the last 12 months.

92. I am comfortably satisfied that, as between those choices, it is not just best for the Offender that he serves that term in the community, it is also best for the community itself because the simple fact is I am satisfied that, if the Offender can remain drug, alcohol, and gambling free, he will not reoffend. If he does “fall off the wagon", then unfortunately I am of the view that he will reoffend. The best chance for him to stay free of his addictions is by serving the term of imprisonment in the community pursuant to an Intensive Corrections Order and that is what I propose to do.

93. The indicative sentences are as follows:

1. H91044284 Seq 3 – 1 years imprisonment with a non-parole period of 9 months.

2. H91044284 Seq 4 – 2 years imprisonment.

3. H91044284 Seq 6 – 2 years imprisonment.

4. H91044284 Seq 9 - 2 years imprisonment.

5. H91044284 Seq 10 – 6 months imprisonment.

6. H91044284 Seq 15 – 1 years imprisonment.

7. H91178388 Seq 3 – 2 years imprisonment.

8. H91178388 Seq 6 – 2 years imprisonment.

94. Whilst there is a temporal gap between what is effectively two sets of offending, I consider that, in all the circumstances, there is a very significant degree of overlap between the offending and it is not unreasonable to consider all of the offending together as one, albeit significant, episode of criminal conduct. It is for that reason that I have determined to wholly accumulate the sentences.

Orders

95. I make the following orders:

1. Taking into account the plea of guilty in relation to each offence and all the matters I have mentioned and after giving weight to the matters on the Form One, I impose an aggregate sentence of 2 years’ imprisonment to commence 8 November 2024, to be served in the community pursuant to an Intensive Corrections Order upon the following conditions:

1. The Offender be of good behaviour.

2. That within 7 days the Offender report to a Community Corrections Officer and submit to the supervision of that Officer.

3. The Offender is to reside at 52/1 Mackaness Close, Five Dock in New South Wales.

4. The Offender is not to change address unless he receives the written consent for him to do so from Mr Awit, psychologist.

5. The Offender is not to drink any alcohol or take any drugs unless prescribed to do so by a medical practitioner.

6. The Offender is to continue to engage with his general practitioner for assessment and engagement with a mental health and drug rehabilitation treatment plan.

7. The Offender is to continue treatment under the supervision of Mr Chafic Awit and continue with an treatment plan ordered by Mr Awit.

8. The Offender is to comply with all directions of Mr Awit as to the treatment plan.

9. In particular, the Offender is to follow all reasonable directions of Mr Awit or his delegate, including any direction that the Offender provide urine analysis samples or commence residential rehabilitation programs or commence treatment or assessment with a suitably qualified person.

10. The Offender is to engage in regular urine analysis tests as directed by Mr Awit and to report the results to Mr Awit and the solicitor for the Director of Public Prosecutions and the officer in charge.

11. The Offender is to attend regular (at least weekly) meetings of Narcotics Anonymous and to provide evidence of his attendance to Mr Awit.

12. If the Offender breaches any of these conditions I direct the Offender, through his lawyers, to bring that breach to the Court's attention and to relist the matter for further consideration.

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Amendments

24 January 2025 - Amended grammatical error at [93]

03 February 2025 - Indicatives amended

Decision last updated: 03 February 2025