R v Dean

[2023] NSWDC 522

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Dean [2023] NSWDC 522

Hearing dates:

8 November 2023

Decision date:

08 November 2023

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

See para [10]

Catchwords:

CRIME – Sentence – Serious offences – Substantial history of offending – Mental health – Drug addiction – adjourned for the purpose of assessing Offender’s prospects of rehabilitation – strict conditions 

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999, s 11

Crimes Act 1900, s 60(2), s 112(1)(A)

Cases Cited:

Bugmy v R [2013] HCA 27

Category:

Sentence

Parties:

Rex (Crown)
Kayne Dean (Offender)

Representation:

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

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

File Number(s):

2022/156995
2022/165718

Publication restriction:

None

JUDGMENT: EX TEMPORE

1. HIS HONOUR: In this matter, which was listed before me today for sentence, for what, on any view, is a large number of serious offences, ranging from Assault Police Officer in Execution of Duty (s 60(2) Crimes Act 1900) to Break Enter and Steal (s 112(1)(A) Crimes Act 1900), the objective seriousness of which is effectively agreed between the Crown and the Offender as somewhere towards the mid-range. I consider that assessment to be generous in favour of the Offender.

2. On top of that, the Offender has what can only be described as a dreadful criminal history. It was not possible for me, when preparing the matter to add up how much time he has spent in prison in his 32 years of life, but it seems to me that a very large proportion of his adult life has already been spent in gaol.

3. On the evidence before me I am satisfied that the Offender had an extremely difficult childhood which I think it could be described as deprived in the sense explained in cases like Bugmy v R [2013] HCA 27. I have not heard full argument on that, but if it does not fall into that category he certainly has, in any event, a very strong subjective case which has inbuilt into it a history of childhood sexual abuse, which no doubt led to, at least in part, long term drug use and diagnosed mental health issues which at least in part may well be an explanation, if not an excuse for his life of crime to the present point.

4. Notwithstanding all of that, Mr James on behalf of the Offender has submitted that the Offender does seem, in recent times, following the offences which brings him before me and following the death of his mother, whilst he was in custody for these offences, to have for the first time made significant efforts to deal with the consequences of his childhood trauma, in particular his mental health issues and his drug issues. He has received some treatment from a psychologist who has proposed a treatment plan. He has a partner and young child, and he has secured a full-time job.

5. When I consider the exercise which I, as the sentencing judge, am about to embark upon, centrally it will focus down, inevitably, to the question of an assessment of the prospects of the Offender becoming drug free and dealing with his mental health issues. Like so many of these cases, if those prospects are good, his prospects of reoffending may well be seen to be correspondingly low. On the other hand, if he does not become drug free it seems to me that I would almost certainly conclude beyond reasonable doubt that he will reoffend.

6. It is against that background that Mr James has suggested that I remand the Offender pursuant to s 11 of the Crimes (Sentencing Procedure) Act1999 (previously known colloquially as a Griffiths remand) on conditions so that at the end of the period when considering an appropriate sentence there will be much more clarity around the Offender’s capacity and prospects of becoming drug free, which finding will feed inevitably into the appropriate sentence.

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. Accordingly, in those circumstances I make an order pursuant to s 11 adjourning this matter until 10am on 8 November 2024 before me.

10. Bail is continued on the following conditions:

1. The Offender is to report daily to the officer‑in‑charge at Burwood Police Station.

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

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

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

5. The Offender is to report within seven days of today to a general practitioner for assessment and engagement with a mental health and drug rehabilitation treatment plan.

6. The Offender is to report within seven days to the office of Mr Chafic Awit so as to make an appointment for the purpose of commencing the treatment plan set out at p 12 of Mr Awit’s report of 2 February 2023, which is part of exhibit D.

7. Thereafter the Offender is to comply with all directions of Mr Awit as to the treatment plan.

8. 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 psychiatrist, such as Dr Justine Schelle.

9. The Offender is to take all reasonable steps available to him so as to maintain his current employment and should his employment cease for any reason, he is to immediately inform the officer‑in‑charge and the Director of Public Prosecutions’ solicitor with carriage of this matter via his solicitors, as well as providing an explanation as to what steps he is taking to secure new employment.

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. I direct that Mr Awit prepare an interim report as to the progress of the Offender to be provided to the Offender’s own solicitor, the officer‑in‑charge, and the solicitor at the DPP on or before 31 March 2024.

13. 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.

Further orders

1. I grant liberty to either party to relist the matter on short notice before me.

2. I will also stand the matter over for directions at 9.30am on 27 September 2024 so as to ensure it will be ready to proceed on 8 November 2024.

Amendments

28 November 2023 - spelling error on coversheet

Decision last updated: 28 November 2023