R v Dogan

[2022] NSWDC 391

District Court

New South Wales

Medium Neutral Citation:

R v Dogan [2022] NSWDC 391

Hearing dates:

14 July 2022

Date of orders:

2 September 2022

Decision date:

02 September 2022

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Aggregate sentence to be served by way of Intensive Correction Order. For orders see [84].

Catchwords:

SENTENCE – stalk/intimidate intend fear physical etc harm (personal) – common assault – detention application – destroy or damage property – use offensive weapon with intent to commit indictable offence.

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Cases Cited:

Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Mandranis v R (2021) 289 A Crim R; [2021] NSWCCA 97 260

R v Edelbi (2021) 105 NSWLR 133; [2021] NSWCCA 122

R v Henry [1999] NSWCCA 111

R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264

R v Van Ryn [2016] NSWCCA 1

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Ulas Dogan (Offender)

Representation:

M. Romelingh (Crown)
E. Srour (Offender)

File Number(s):

2021/00179695

Publication restriction:

Nil.

REMARKS ON SENTENCE

1. The offender who was born on 23 March 1990 is to be sentenced in respect of the following three offences, to which he entered pleas of guilty in the Local Court:

Sequence 7 – use offensive weapon with intent to commit indictable offence pursuant to s 33B(1)(a) of the Crimes Act 1900. The maximum penalty prescribed for this offence is 12 years imprisonment.

Sequence 3 – stalk/intimidate/intend fear physical etc harm pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. The maximum penalty prescribed for this offence is 5 years imprisonment and/or 50 penalty units.

Sequence 2 – common assault pursuant to s 61 of the Crimes Act 1900. The maximum penalty prescribed is two years imprisonment.

There is no standard non-parole period prescribed for any of the three offences.

2. The offender has admitted his guilt and asked to be taken into account three offences on a Form 1 attached to sequence two. The offences are as follows:

Sequence 4 – common assault pursuant to s 61 of the Crimes Act 1900.

Sequence 5 – common assault pursuant to s 61 of the Crimes Act 1900.

Sequence 6 – common assault pursuant to s 61 of the Crimes Act 1900.

3. The offender has also admitted his guilt and asked to be taken into account on sentence the following matter on a Form 1 attached to sequence 7:

Sequence 1 – destroy or damage property pursuant to s 195(1)(a) of the Crimes Act 1900. The maximum penalty prescribed for this offence is 5 years imprisonment.

The sentence hearing

4. The sentence hearing took place on 14 July 2022. The Crown Sentence Summary became Exhibit A and it included agreed facts on sentence which may be summarised as follows.

5. The victim was driving his vehicle at about 8.30am on 21 June 2021 along Victoria Road in an easterly direction towards the city. He was in the middle of three lanes which comprised a bus lane, with lanes two and three available to ordinary traffic. The victim observed a Toyota vehicle alongside his vehicle in lane one and shortly thereafter, observed the same vehicle tailgating his vehicle in lane two. The victim brought his vehicle to a stop at traffic lights at Gladesville and the vehicle driven by the offender stopped behind his vehicle. The offender exited his vehicle and approached the victim’s vehicle. The victim put his driver’s window down as the offender approached. The offender then spat through the open window, with spittle landing on the victim’s right-hand side cheek. The offender said, “Why can’t you let me in?”. The victim replied, “I didn’t see you.” The offender then said, “That’s total bullshit, motherfucker.” This is the conduct comprising sequence 4, common assault, being an offence on the Form 1 to sequence 2.

6. The offender then put his right arm through the window of the victim’s car and slapped the victim to the face two to three times. The offender’s right hand came into contact with the right side of the victim’s upper cheek and head and the victim felt immediate pain.

This is the conduct comprising sequence 2, common assault.

7. The offender then used both hands to grab the victim’s t-shirt and began attempting to pull the victim from the car. The victim used both of his hands to try and push the offender off him.

This is the conduct comprising sequence 5, common assault, an offence on the Form 1 to sequence 2.

8. The offender and victim struggled for approximately one minute and the offender repeatedly spat on the victim during this struggle. This is the conduct comprised in sequence 6, common assault, an offence on the Form 1 to sequence 2.

9. The offender let go of the victim and said, “You know who I am? You are going to get killed.” The offender then spat at the victim again, with spittle landing on the right side of the victim’s face. The offender then walked away and returned to his vehicle.

10. The traffic moved forward slightly, with both the victim and offender driving their own cars. The traffic stopped shortly thereafter with the victim’s vehicle stopped in front of the offender’s vehicle in lane three. The victim exited his car to take a picture of the offender, who was sitting in the front seat of his vehicle, using his phone. The victim then got back inside his car.

11. The offender then exited his vehicle, walked to the back and opened the boot to retrieve a hammer. It was a small hammer with a bright yellow handle.

12. The victim observed the offender to approach his vehicle again with the hammer in his right hand by his side. As the offender approached, the victim put his window up. This is the conduct comprised in sequence 7, use offensive weapon with intent to commit indictable offence.

13. The offender took hold of the hammer in both hands, bringing it up to his face, before swinging the hammer down to smash into the driver’s side window. The window shattered completely, causing glass to fall on the victim and his passenger. The offender then began to swing the hammer in the direction of the victim’s head while swearing and screaming. The victim and the passenger feared for the victim’s safety and the victim’s passenger placed her hands over his head to protect him. The offender continued to swing the hammer for about one minute before returning to his vehicle.

14. A female passenger from the offender’s vehicle then approached the victim’s vehicle and the passenger side door, which she opened. She said to the victim’s passenger, “Tell your man to calm down, you are both going to get killed. You don’t know him.” The offender and his female passenger then drove off. This is the conduct of destroy or damage property, being sequence 1 on the Form 1 to sequence 7.

15. The victim and a witness immediately attended Gladesville Police Station to report the incident and the victim provided his t-shirt to police for forensic analysis. He also provided photos he had taken of the offender. Police attended the offender’s home on 22 June 2021 and after his spouse contacted him, the offender agreed to attend Ryde Police Station after work. After he arrived there, the offender was placed under arrest and cautioned, and he declined to participate in an ERISP and identification line-up. On 19 July 2021, the victim completed a photo identification parade in which he positively identified the offender. On 5 August 2021, DNA analysis positively identified the offender as a contributor to a mixed DNA profile from a swab of saliva found on the rear exterior surface of the victim’s t-shirt.

16. Exhibit A also included the criminal antecedents of the offender. In 2014, he had been sentenced for three traffic offences, drive whilst license suspended, drive during disqualification period and drive whilst license cancelled. A fine was imposed in respect of the first of those three offences and s 9 bonds in respect of the subsequent offences.

17. On 27 August 2018, the offender was sentenced for an offence of manufacture prohibited drug greater than large commercial quantity to a period of imprisonment of 7 years and six months with a non-parole period of 4 years and six months commencing on 19 January 2016 and concluding on 18 July 2020. He was released on parole on 18 July 2020, however, his parole was revoked on 21 June 2021 because of the index offending. He was subsequently granted bail on 2 September 2021 and thus spent 73 days in custody following revocation of his parole, which was reinstated on 2 September 2021.

18. Exhibit A also included the offender’s custodial history, which included an infraction on 12 July 2021 of being in possession of a prohibited drug.

19. Exhibit A also included a Breach of Parole report dated 24 June 2021 in which the author reported the offender’s response to supervision since his release to custody on 18 July 2020 had been positive. He had reported to supervision fortnightly as required and engaged in program guide interventions focusing on management of drug cravings and identifying high risk environments. The case notes revealed a positive attitude towards supervision and demonstrated progressive insight in relation to his criminogenic factors. The offender had completed a mental health care plan and had tested negative for illicit drugs. The author described him having a progressive reintegration back into the community, specifically with ongoing employment and strong family support. The author also noted that his criminal history does not reflect a pattern of violent behaviours. The report noted that Community Corrections recommended no action be taken in respect of his parole as a result of the index offending.

20. Exhibit B was a Sentencing Assessment Report (“SAR”) under the hand of Ms I. Chan dated 1 July 2022. The author noted that the offender was residing with his mother, who was supportive of him, and that he also had the support of his partner. Under the heading “Attitudes”, the author stated the offender attributed blame onto the victim, however, the Crown did not rely upon that statement as it was based on an incorrect statement of facts. The report went on to state that the offender regretted his action and accepted responsibility for it.

21. The report noted the offender had an extensive history of illicit substance abuse and had been struggling with a heroin addiction. He expressed an intention to continue abstaining from illicit substances and had begun buprenorphine treatment in May 2022.

22. The author noted that the offender had been diagnosed with severe anxiety and depression in the past, for which he had been medicated. He expressed a willingness to undertake intervention, including psychological intervention, to address his mental health.

23. The offender was assessed as a medium risk of reoffending and the author set out the following supervision plan:

• Fortnightly contact with Community Corrections, with interventions focused on managing cravings, stress and anger.

• Referral to EQUIPS foundations to help him manage difficult life events.

• Referral to an anger management program targeted to violent men in the community.

• Referral to a psychologist for mental health stability.

• Monitoring of the offender for absence of illicit drugs including random drug testing.

The offender’s evidence

24. The offender relied on a bundle of documents which became Exhibit 1 and included the offender’s written submissions.

25. Exhibit 1.2 was a letter of apology of the offender to the court, in which he stated that he was aware of his actions and how they impacted and offended everyone involved, including his own family. He was now on a drug rehabilitation program which he attended on a daily basis. The offender stated:

“I am truly sorry for everything I have done. I have no excuses for any of this, I am truly remorseful for everything. I just want a fresh start, a chance to be able to show everyone around me from my mother, father, sister and wife who have supported me endlessly that I truly am a changed man.”

The offender expressed a determination to lead a better life having gone through detox.

26. Exhibit 1.3 was a letter from the offender’s sister, who stated that the offender had learned from his mistakes and was trying his best to move forward and start a fresh life. She confirmed that he had been suffering from depression and still battles with anxiety, but that he started a mental health plan. She further stated that the offender was truly remorseful for his actions and that he had never been a violent person, which was very out of character for him.

27. Exhibit 1.4 was a letter from Ms C. Jorgensen, the offender’s wife. The offender had recently admitted an 11-year drug addiction and has started a rehabilitation program and a mental health treatment plan. He was also working hard to build his concrete business. Notwithstanding that they were currently living at separate addresses as the offender’s bail condition was that he reside with his mother, their goal was to start a family and live a normal, happy and healthy life.

28. Exhibit 1.5 was a letter from the offender’s mother which set out a number of physical and mental health issues which she was suffering. Mrs Dogan stated that she had never known her son to be a violent person and that was very out of character for him. In addition to addressing his mental health issues, he was building a business and also taking care of her and his family. She expressed that his remorse was genuine and that he had changed.

29. Exhibit 1.6 was confirmation of the offender’s participation in the buprenorphine program from 23 April 2022.

30. Exhibit 1.7 was a letter from Dr S. Dilek dated 28 June 2022 relating to the offender’s mother’s medical issues. Exhibit 1.8 was a letter from Dr A. Emin stating that the offender was the main and only carer for his mother.

31. A second bundle of documents became Exhibit 2. It included signed statements of the offender and his sister, a quote from his concrete business and a number of treatment records confirming his suboxone treatment, together with his ongoing treatment for depression and anxiety.

The offender’s submissions

32. The solicitor for the offender relied on a thorough and detailed written outline of submissions, in which it was submitted that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”) had not been crossed and that a community-based order should be appropriate punishment, namely, a Community Corrections Order (“CCO”) with a community service work component. In the event that the custodial threshold had been crossed, it was submitted the court would find that any term of imprisonment could be appropriately served by way of an Intensive Correction Order (“ICO”).

33. It was submitted the offender was entitled to a 25% discount for his early guilty plea. The offender had spent 73 days in custody, and the usual practice was to backdate any sentence imposed, however, an ICO could not be backdated. It was submitted the offender had been subject to onerous bail conditions since 2 September 2021. He was granted conditional bail and confined to house arrest until 18 October 2021. On that day, his bail conditions were varied, however, a curfew was imposed along with a daily reporting condition to Merrylands Police Station. Since his release on 2 September 2021, he had been breach and offence free.

34. The offender acknowledged the seriousness of his offending conduct but submitted that whilst not at the lower end of the scale, the objective seriousness was appreciably below mid-range for these type of offences, especially when one considers the context of the offending. It was submitted there was a lack of planning and the offences were not premeditated and could be categorised as spontaneous. There was no suggestion the parties were known to each other and it was submitted on behalf of the offender that there was no intention to cause injury and there were in fact no injuries occasioned by the offence. It was further submitted that the assault charges did not extend beyond common assaults and whilst the situation was frightening, it did not extend for a significant period of time.

35. It was submitted the offender has mental health issues and was not an appropriate vehicle for general deterrence, relying on DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [43].

36. The offender submitted that he had been using prohibited drugs since he was 19 years of age and was using drugs at the time of the offending. This was not put as a mitigating circumstance or on the basis that it would diminish his moral culpability for the offending. However, it was submitted that it was relevant to his sentence given the impact it had on his ability to make sound, reasoned decisions, relying on R v Henry [1999] NSWCCA 111 at [274].

37. The offender recognised that any hardship to his family was an unavoidable consequence of his criminal conduct and not a mitigating consideration. Whilst there were no exceptional circumstances relevant here, his family were impacted during his incarceration. His mother suffers from major depression, anxiety, PTSD and early dementia, and is totally dependent on the offender for her daily living requirements.

38. It was submitted that given the absence of any previous offences for violence, the court could extend an element of leniency towards the offender. His record did not demonstrate a continuing attitude of disobedience of the law and therefore specific deterrence should be given less weight in sentencing.

39. The offender submitted that his prospects of rehabilitation are good, particularly if he continues treatment in accordance with his mental health plan.

40. It was also submitted that he had demonstrated significant remorse and contrition by entering an early plea of guilty, by making full admissions and taking responsibility for his behaviour, displaying a level of insight into the impact of the offences on the victims, being abstinent from illicit substances, progressing his drug rehabilitation and mental health treatment and by not breaching onerous bail conditions or committing further offences. The offender had expressed his remorse to his sister, mother and wife, and had positive future plans as well as building his own business.

41. The court was invited to find that the offender was at a crossroad in his life and that leniency by the court may well lead to a positive outcome.

42. The offender also referred to the consideration to be given to the matters to be dealt with on Forms 1 in respect of sequence 2 and sequence 7.

43. In his oral submissions, the solicitor for the offender rehearsed the salient features of his written submissions. He emphasised that positive steps have been taken by the offender in his rehabilitation and that he now has a mental health treatment plan and has reintegrated well into the community. It was submitted that the violent offending was out of character for him and that he accepted full responsibility for his actions.

44. The offender submitted that the detailed supervision plan outlined in the SAR would allow for a community-based sentence.

45. In addressing the Crown’s written outline of submissions, the solicitor for the offender submitted that use of a weapon was an element of sequence 7 and therefore not an aggravating factor.

46. The offender rehearsed his submission that he was entitled to some leniency as this was his first criminal conviction for violence. He also submitted that because his prospects of rehabilitation are good, his risks of reoffending are lower and therefore less weight should be given to protection of the community as a purpose of sentencing. In mitigating the sentence, it was submitted that it was spontaneous offending with no planning whatsoever. Further, his plea of guilty and demonstration of remorse were mitigating factors warranting a community-based order. If the court was of the opinion that the s 5 threshold had been crossed, then s 66 of the CSPA allowed for an ICO to be imposed for a period of up to three years.

The Crown submissions

47. The Crown also relied on a detailed written outline of submissions. In relation to the assessment of objective seriousness, the Crown submitted the conduct constituting the assault in sequence 2 fell within the mid-range of objective seriousness for an offence pursuant to s 61 of the Crimes Act. The offender made actual physical contact with the victim.

48. Sequences 4, 5 and 6 were further common assaults which the offender had asked the court to take into account on sentence. The conduct in each of those sequences are of lower objective seriousness than sequence 2 but were towards the mid-range.

49. The Crown submitted the intimidation offence in sequence 3 fell within the mid-range. The accused made a verbal threat to the victim’s life and then retrieved a hammer from his vehicle and swung it at the head of the victim several times, causing the victim to be reasonably fearful of imminent harm.

50. The Crown submitted that the offence in sequence 7, use offensive weapon with intent to commit indictable offence, fell within the mid-range for offences of its type. The offender had retrieved the hammer from the back of his vehicle and used it to continue and escalate the string of offences committed against the victim. The use of the weapon was not momentary.

51. Sequence 1 involved the offender damaging the victim’s vehicle by smashing the driver’s side window with a hammer. The Crown submitted that contact was within the low range of such offences.

52. The Crown submitted it was an aggravating factor that the offences were committed whilst the offender was on parole, pursuant to s 21A(2)(j) of the CSPA. In respect of sequence 3, intimidation, the Crown submitted aggravating features were the actual or threatened use of violence and/or a weapon pursuant to ss 21A(2)(b) and (2)(c) of the CSPA.

53. The Crown submitted a mitigating factor was the plea of guilty entered by the offender pursuant to s 21A(3)(k) of the CSPA. It was not submitted the offender’s criminal history was an aggravating factor, but it did disentitle the offender to leniency.

54. The Crown submitted that whilst neither of the victims were physically harmed during the course of the offending conduct, this did not mitigate the offender’s criminal conduct. It could not be inferred that there was no adverse effect on the victims.

55. The Crown referred to the purposes of sentencing set out in s 3A of the CSPA and submitted that some level of accumulation is necessary in sentencing for the three offences. The Crown conceded that the offender was entitled to have 73 days of pre-sentence custody taken into account. The Form 1 offences also should lead to some increased weight to be placed on specific deterrence and retribution in sentencing.

56. The Crown submitted the s 5 threshold had been crossed and the only appropriate sentence was one of full-time imprisonment.

57. In her oral submissions, the Crown submitted the subjective material relied on by the offender supports that he had made genuine rehabilitation attempts. The Crown also conceded, properly in my view, that his demonstration of remorse was a mitigating factor.

58. The Crown rehearsed her submissions in relation to the s 5 threshold, relying on the offender being on conditional liberty at the time of the offending, being on parole, and the facts which demonstrated a random attack constituting road range, for which general deterrence and denunciation were required.

59. The Crown also conceded, again properly in my view, that an ICO could be an appropriate alternative to full-time custody, given the significant progress that offender had made in his rehabilitation and the benefit he would gain from an extended period of supervision in the community.

Determination

60. Section 3A of the CSPA sets out the purposes of sentencing as follows:

“   The purposes for which a Court may impose a sentence on an offender are as follows:

(a)   To ensure that the offender is adequately punished for the offence,

(b)   To prevent crime by deterring the offender and other persons from committing similar offences,

(c)   To protect the community from the offender,

(d)   To promote the rehabilitation of the offender,

(e)   To make the offender accountable for his or her actions,

(f)   To denounce the conduct of the offender,

(g)   To recognise the harm done to the victim of the crime and the community.”

61. The objective seriousness of the offending in sequence 7 involved the offender retrieving a hammer from his vehicle and using it to escalate his criminal offending. I accept the Crown’s submission that the offender’s use of the hammer as a weapon was not momentary, notwithstanding that his offending was not premeditated. The offender had alighted from his own vehicle, gone to the back of his own vehicle to retrieve the hammer and then proceeded to use it by smashing the victim’s driver’s side window. Whilst being careful not to conflate the offending with sequence 1, the offence of destroy or damage property pursuant to s 195(1)(a) of the Crimes Act 1900, which is on a Form 1 attached to sequence 7, I find that in all of the circumstances of the offending, the offence fell within the mid-range for an offence pursuant to s 33B(1)(a) of the Crimes Act 1900, albeit at the lower end of the mid-range. It constituted serious offending. I have not, however, taken into account the use of a weapon as an aggravating factor as it is an element of the offence.

62. The objective seriousness of the offending in sequence 3, stalk/intimidate/intend fear of physical harm, is also to be assessed in light of all of the circumstances of the offence. They included the offender threatening to kill the victim, and placing the victim in fear of imminent harm. In all of the circumstances, it constituted serious offending, within the mid-range for an offence pursuant to 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.

63. The objective seriousness of the offending in sequence 2, common assault, involved the offender using his right hand to slap the cheek of the victim two to three times through the window of his vehicle. Objectively, it fell in the low range for an offence pursuant to s 61 of the Crimes Act 1900.

64. The offences of common assault pursuant to s 61 of the Crimes Act, being sequences 4, 5 and 6, which are to be taken into account on the Form 1 attached to sequence 2 were, as outlined above, objectively less serious than the offence in sequence 2 and fell towards the lower range of offences pursuant to s 61 of the Crimes Act. They are still to be taken into account in accumulation on sentence in respect of sequence 2.

65. It was an aggravating factor in respect of each of the offences that the offender was subject to parole at the time of the offending conduct, pursuant to s 21A(2)(j) of the CSPA. I find that it was also an aggravating factor pursuant to s 21A(2)(b) that the offending involved the actual or threatened use of violence in two separate incidents of what could only be characterised as “road rage” by the offender.

66. It is a mitigating factor that the offender has pleaded guilty at an early time and is entitled to a 25% utilitarian discount on sentence.

67. There are a number of subjective factors to be taken into account in the sentencing process. I accept that the offender was addicted to drugs over a period of some years. In 2018, he had been sentenced on a charge of manufacture prohibited drug greater than large commercial quantity to a term of imprisonment of seven years and six months, with a non-parole period of four years and six months, commencing on 19 January 2016. His custodial history demonstrated that he had a number of infractions whilst in custody of possessing prohibited drugs, including following the index offending. Whilst his criminal history contains no prior offences involving violence, given the serious nature of the offending for which he was previously sentenced and the fact that he was on parole at the time of the offending means that whilst his criminal history does not aggravate the offending of itself, it does not entitle him to leniency.

68. In addition to the utilitarian discount of 25% for his early plea of guilty, I am satisfied the offender has expressed remorse and contrition for his offending conduct.

69. I am also satisfied that the offender has made significant progress with his rehabilitation and is now adhering to a suboxone program. He also has pro-social influences by way of a supporting family, and he is productively pursuing his concreting business.

70. The offender has also sought assistance with his mental health issues which, whilst not causative of the offending, will assist in his return to a productive life if he adheres to the treatment plan recommended for him.

71. General deterrence and denunciation are important in sentencing for offences which amount to road rage and intimidation. A clear message must be sent to the community that such conduct is entirely unacceptable. Members of the public are entitled to go about their daily lives, including driving on the roads without being placed in fear of their lives and subject to random acts of violence for perceived minor infractions of the road rules.

72. I have taken into account the maximum penalties prescribed, pursuant to s 33B(1)(a) of the Crimes Act of 12 years imprisonment, s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 of five years imprisonment and/or 50 penalty units and s 61 of the Crimes Act of two years imprisonment, together with the maximum penalty for sequence 1, an offence pursuant to s 195(1)(a) of the Crimes Act 1900, being the offence on the Form 1 to sequence 7, having a maximum penalty of five years imprisonment. The maximum penalties for the index offences and those offences on the Forms 1 are guideposts in the sentencing process.

73. Having regard to the objective seriousness of the offending, I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate pursuant to s 5 of the CSPA. A non-custodial sentence as sought by the offender here, would not reflect the objective seriousness of the offending, nor would it serve the purposes of deterrence, denunciation and adequate punishment.

74. I intend to proceed to sentence the offender pursuant to s 53A of the CSPA, by way of an aggregate sentence. For the purpose of transparency in sentencing, I set out the following indicative sentences which take into account the objective seriousness of the offending, the aggravating and mitigating factors and the subjective matters set out above:

Sequence 7 – imprisonment for two years and six months, with a non-parole period of one year and three months.

Sequence 3 – a fixed term of six months imprisonment.

Sequence 2 – a fixed term of six months imprisonment.

75. The indicative sentences for sequence 7 and sequence 2 take into account the matters on the Forms 1 attached to each of those offences.

76. It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved:

“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

77. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

78. As the offending here occurred as one course of criminal conduct over a relatively short period of time, notwithstanding the number of offences involved, there must be a large degree of concurrency in the sentences to be imposed. For that reason, I intend to impose a head sentence of two years and nine months. I also indicate that I would make a finding of special circumstances and vary the usual ratio between head sentence and non-parole period. Before doing so, however, I need to give consideration to whether the offender’s sentence may be served by way of an Intensive Correction Order pursuant to s 7 of the CSPA.

79. In determining whether an ICO should be imposed, s 66(1) of the CSPA makes community safety the paramount consideration. However, the authorities have established that s 66(3) also requires the court to consider the purposes of sentencing as outlined above. Community safety is not achieved simply by incarcerating offenders, but is inextricably bound to considerations of rehabilitation and whether that is more likely to occur with supervision and access to treatment programs in the community – see R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264 at [84] per Harrison J.

80. Here, the offender’s rehabilitation is well advanced. He is attending a medical clinic on a daily basis for his suboxone treatment and is under the care of a local medical officer in respect of supervision of a mental health plan.

81. I also note that the offender has served 73 days in custody following the offending and whilst that related to revocation of his parole for a short period of time, the length of a sentence to be served by way of an ICO may be reduced to take account of the time served – see Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97 at [55] to [62]; R v Edelbi (2021) 105 NSWLR 133; [2021] NSWCCA 122 at [80].

82. Also relevant is the fact that the offender has responded well to supervision on parole and his bail was supported by the Parole Service, notwithstanding the index offending conduct. I also take into account that he has been for some time subject to onerous bail conditions and has not breached his bail or committed any further offences.

83. For those reasons, I find the sentence to be served by the offender should be served by way of an Intensive Correction Order pursuant to s 7 of the CSPA. I note that his parole will expire on 18 July 2023 and therefore impose an ICO commencing today, for a period of two years and six months. This takes into account the time served of 73 days and also allows for an extended period of supervision beyond the offender’s parole.

Orders

84. I hereby order as follows:

1. You are convicted of the following offences:

1. Sequence 7 – use offensive weapon with intent to commit indictable offence pursuant to s 33B(1)(a) of the Crimes Act 1900.

2. Sequence 3 – stalk/intimidate/intend fear physical etc harm pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.

3. Sequence 2 – common assault pursuant to s 61 of the Crimes Act 1900.

2. I sentence you to an aggregate sentence pursuant to s 53A of the CSPA of two years and six months imprisonment.

3. I order that the sentence be served by way of an Intensive Correction Order. The sentence will commence today.

4. You must report to Community Corrections Office at Bankstown as soon as practicable, but no later than seven days from today.

5. The standard conditions of the order will apply:

1. You must not commit any offence; and

2. You must submit to supervision by a Community Corrections Officer.

6. The following additional condition will apply:

1. A rehabilitation or treatment condition requiring you to participate in any rehabilitation program, or to receive treatment recommended by your treating doctor.

7. If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning imposing more stringent conditions, or it may include revocation of this order.

8. If the order is revoked, you may be required to serve all or some of the period of your sentence in full-time custody.

9. You are now directed to attend the court registry where a copy of the order will be explained and given to you.

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Decision last updated: 02 September 2022