R v Duke

[2020] NSWDC 341

District Court

New South Wales

Medium Neutral Citation:

R v Duke [2020] NSWDC 341

Hearing dates:

03 June 2020

Date of orders:

03 June 2020

Decision date:

03 June 2020

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Aggregate sentence of imprisonment of 4 years 8 months with a non-parole period of 2 years 8 months

Catchwords:

CRIME — Drug offences — Ongoing supply

CRIME — Money laundering — Dealing with money suspected of being proceeds of crime

SENTENCING — Relevant factors on sentence — Circumstances of offence

SENTENCING — Relevant factors on sentence — Form 1 offences

SENTENCING — Relevant factors on sentence — General principles

SENTENCING — Relevant factors on sentence — Maximum penalty

SENTENCING — Relevant factors on sentence — Multiple offences

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences

SENTENCING — Relevant factors on sentence — Objective seriousness

SENTENCING — Relevant factors on sentence — Parole period

Legislation Cited:

Crimes Act1900

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act1986

Drug (Misuse and Trafficking) Act 1985

Road Transport (Driver Licence) Regulation 2017

Cases Cited:

Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act1999, No. 1 of 2002 [2002] NSWCCA 518

Bugmy v R [2013] HCA 37

Callaghan v R [2006] NSWCCA 58

R v Fernando (1992) 76 A Crim R 58

R v Qutami [2001] NSWCCA 353

Category:

Sentence

Parties:

Regina (Crown)
Tyrone Duke (Offender)

Representation:

Eric Navea (Crown)
Heather Webb (solicitor advocate) (Offender)

Director of Public Prosecutions (NSW) (Crown)
Aboriginal Legal Service (Offender)

File Number(s):

2019/00093042; 2017/00341243 & 2019/00150658

EX TEMPORE REVISED JUDGEMENT

INTRODUCTION

1. Tyrone Duke appears for sentence in respect of offences to which he pleaded guilty at the earliest opportunity. Some of these offences are indictable and are before this Court as such. There are two summary matters before the Court by way of s 166 Criminal Procedure Act 1986.

PLEAS OF GUILTY

2. In the summary matters, he pleaded guilty in the Local Court and acknowledged his guilt in respect of them on an earlier occasion when this matter was before me.

3. He pleaded guilty to the offences upon which sentences to be imposed as indictable matters in the Local Court under the EAGP scheme[1] . He adhered to his plea of guilty to those offences before me and therefore in accordance with the legislation he is entitled to a discount for the utility of the pleas of guilty; in respect of all of the matters he has a discount of 25% to be applied to the sentences that would have been otherwise imposed.

   1. Part 3 Div 1A Crimes (Sentencing Procedure) Act 1999

4. There is one Form 1 offence. In respect of that matter, he admits his guilt and he confirms his wish that the offence be taken into account. It is to be brought to account in the assessment of the sentence to be imposed on the principal offence of intimidating a police officer, sequence 9, one of the offences before me by way of s 166 Criminal Procedure Act 1986.

THE OFFENCES

5. The offences upon which sentences to be imposed are:

1. A charge of on ongoing supply for a prohibited drug, the particulars of what are that between 4 March 2019 and 26 March 2019 in Moree in the State of New South Wales, the offender did on three or more separate occasions during a period of 30 consecutive days, supply a prohibited drug, namely methylamphetamine and Fentanyl, for financial reward. The offence is contrary to s 25A (1) Drug (Misuse and Trafficking) Act 1985. The maximum penalty specified is imprisonment for 20 years. There is no standard non‑parole period for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999. This offence is sequence 6 in the series.

2. The next is sequence 7 dealing with the proceeds of crime, the particulars of which are that between 4 March 2019 and 26 March 2019 at Moree in the State of New South Wales, the offender dealt with certain property, namely $6,890 of Australian currency that there are reasonable grounds to suspect the proceeds of crime. The offence is contrary to s 193C(2) Crimes Act 1900. The maximum penalty specified for that offence is imprisonment for three years. There is no standard non‑parole period for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act.

3. The next offence upon which sentence is to be imposed is an offence of engaging in a police pursuit, the particulars of which are that on 24 March 2019 at Moree in the State of New South Wales, the offender did drive a vehicle, namely a silver Toyota Corolla with Victorian registration 10PXXX, knowing that police officers were in pursuit of the said vehicle and that he was required to stop the vehicle and did not stop the vehicle, and then drove the vehicle in a manner dangerous to others. The offence is contrary to s 51B(1) Crimes Act 1900. The maximum penalty specified is imprisonment for three years. There is no standard non‑parole period specified for that offence. It is sequence 1 in the series of charges arising from that conduct.

4. Sequence 11 within the same series is a charge of using an offensive weapon with intent to prevent lawful apprehension, particulars of which are that on 24 March 2019 at Moree in the State of New South Wales, the offender did use an offensive weapon with intent to prevent his lawful apprehension. The offence is contrary to s 33B(1)(a) Crimes Act 1900. The maximum penalty specified is imprisonment for 12 years. There is no standard non‑parole period specified for that offence.

5. The summary offences before me are, first of all, failing to display P‑plates, the particulars of which are that on 24 March 2019 at Moree in the State of New South Wales, the offender failed to display P‑plates as required. The offence is contrary to cl 119(1) Road Transport (Driver Licence) Regulation 2017. The penalty that is normally imposed for such misconduct is by way a monetary order in the form of a fine. I do not propose to specify any penalty for that offence. The provision in s 10A Crimes (Sentencing Procedure) Act 1999 will be applied, whereupon I intend to convict the offender but impose no penalty in accordance with that provision. Finally, there is the offence of resisting an officer in the execution of duty so described in the Crown sentence summary. It is set forth in the agreed statement of facts as a charge of intimidation which is included within the same provision of s 60(1) Crimes Act 1900. Thus the offence is one of intimidation rather than resist. This is sequence 9 in the series. The maximum penalty for that offence is imprisonment for five years but because this is a summary offence, the jurisdictional limit is one of two years. The benchmark however is of course the specified maximum penalty that Parliament has provided.

THE FORM ONE OFFENCE

6. The Form 1 offence taken into account for the charge of intimidation is one of resist. It is sequence 8, on 25 March 2019. The offence carries a jurisdictional limit of two years without a standard non‑parole period. Relevant to the consideration of that offence and how it is to impact upon the sentence for the principal offence which is to be taken into account, is the guideline judgement in Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 [2002] NSWCCA 518.

7. The offender will suffer a term of imprisonment indicated in respect of the principal offence in which this additional offence is to be taken into account with an appropriate increase to reflect the additional offence in accordance with the stated principle in the guideline judgement, reflecting the need for greater weight to be given to aspects of personal deterrence and retribution, and to reflect the community’s entitlement to have the full range of the misconduct of the offender brought to account. In the particular circumstances of this case however, personal deterrence does have a significant role to play for reasons to which I shall come.

PRE-SENTENCE CUSTODY

8. The offender has been in custody for a significant period of time already, awaiting the resolution of these matters. He was arrested effectively on 25 March 2019 after events of 24 March 2019. Afterward he was held in custody as a consequence of his failure to comply with the terms of an Intensive Corrections Order to which he was subject and which was accordingly converted into fulltime imprisonment. Thus from 25 March 2019 until 30 July 2019, his custodial status was referrable to the past offending, in addition to the bail status as a prisoner bail refused pending the determination of the current matters.

9. The latest date upon which the aggregate sentence I intend to impose today should commence is 31 July 2019. I have discretion as to when I should commence the sentence, in accordance with the guidance provided by Justice Simpson in the decision in Callaghan v R [2006] NSWCCA 58. I have come to the view in the exercise of that discretion, bringing into account the circumstances of the offender that the sentence I impose today should commence on 1 July 2019. There will accordingly be some concurrence with the past sentence, reflecting the totality of the offending upon which he engaged, including that which is presently before me and not overlooking that but for this further misconduct he might well have been able to reinstate his Intensive Corrections Order, which was lost to him by reason of his behaviour upon which I am about to embark.

10. The fact that he was subject to conditional liberty at the time of these crimes and that he has an extensive criminal history, are matters that are brought to account as aggravating factors but I make clear that they have a limited role in that regard. They neither aggravate the offending with which I am concerned, nor increase the sentences that would otherwise be proportionate to the further misconduct. It does inform however aspects of specific deterrence and denies the offender leniency that might he might have otherwise been entitled to have brought to account were he not burdened with his record of antecedent offences.

THE FACTS

11. Turning to the facts that are before me, they begin with a description of the offence of ongoing supply of prohibited drugs and dealing with the money reasonably suspected to be the proceeds of crime.

12. The New South Wales Police Force constituted a strike force to investigate the supply of prohibited drugs in the Moree area. This offender and his de facto partner, Ms Taylor, were persons of interest during the investigation. Ms Taylor was normally a resident in the Windsor area where she was responsible for the care of their two year old son. The offender occupied homes both in the Sydney Metropolitan area and in Moree. This will be amplified when I deal with his subjective case.

13. Neither the offender nor his partner was gainfully employed during these periods. The offender was receiving a Newstart allowance at $515 per fortnight. In the course of the operation of the Taskforce the telephone used by the offender was intercepted over a period of 19 days and within that period, he agreed to supply or offered to supply a prohibited drug, namely methylamphetamine, on 42 individual occasions to various persons in the Moree and surrounding areas. The financial reward for this was $18,620. The total quantity of the methylamphetamine, the subject of the communications, was 115.05 grams.

14. The offender and the person supplied with the prohibited drugs used coded language to nominate and negotiate quantities and price. There is a table included in the statement of agreed facts setting forth the dates, times and quantities that were involved on each occasion and the financial reward for the transactions.

15. On 5 March 2019 there were nine separate occasions between 12.30pm and 11.25pm. The quantities of drugs extended from 0.1 grams up to 3.5 grams. The reward extended from $30, $50 to $100, to $250, up to a maximum of $1,000 for the 3.5 grams.

16. On 6 March 2019 between 12.43am and 4.16pm the transactions were for quantities extending from 0.1 gram up to 1.75 grams, on seven occasions. The rewards extended from $50 to $100, to $150, $300, up to $600.

17. On 7 March 2019, there were six occasions between 12.02am and 8.37pm. These were for quantities extending from 0.1 grams up to 1.75 grams for amounts extending from $80 to $100, to $250, $450, and to $500.

18. On 8 March 2019 there were two occasions, at 11.40am and 2.14pm, one for 0.05 grams for which the reward was $30 and for 0.1 grams for which the reward was $100.

19. On 9 March 2019 there were three occasions between 2.07am and 1.05pm. These were for quantities of 0.1 grams up to 3.5 grams. The financial reward was $100, $130 and $300, respectively.

20. On 10 March 2019, there was one occasion at 6.29pm when the quantity was 56.8 grams for $2,000.

21. On 11 March 2019, there was one occasion at 11.26pm for 1.75 grams for the reward of $450.

22. On 12 March 2019, there were five occasions from 10.39pm to 10pm, and include transactions at 2.58pm, 3.33pm and 6.54pm. There appears to be some error there, though I am not quite sure. The quantities extended from 0.1 grams up to 1.75 grams. The reward was $50, $100, $200, $500 and $600 respectively.

23. On 13 March 2019, there were six occasions between 9.55am and 9.15pm. The quantities extended from 0.1 grams up to 1.7 grams. The reward extended from $50 up to $500.

24. On 22 March 2019, there were two occasions at 3.49pm and 6.58pm. These were for 3.5 grams and 28.4 grams, respectively. A smaller quantity involved a reward of $1,000, and the larger, a reward of $6,000.

25. Thus the total over that period was 115.05 grams with a total reward of $18,620.

26. On the occasion on 22 March 2019, at 3.49pm, the offender was not in Moree but directed his grandmother to take a pre‑packaged quantity of the methylamphetamine he had left in her care, to be delivered to an unspecified location where it was to be left under a green garbage bag for collection.

27. Between 5 March 2019 and 7 March 2019, the offender supplied a prohibited drug, Fentanyl, on five separate occasions for a reward of $450. This drug is consumed by way of a patch applied to the skin. Once again, there was coded language used to nominate and negotiate quantities and price.

28. There is a further table provided for the transactions on 5 March 2019 through to 7 March 2019, with particulars of the five transactions and the amounts of the reward in each case, to the total of $450.

29. The total reward for all of the transactions is $19,070.

30. The offender made numerous large cash deposits to a bank account in his name in the Moree branch of the Commonwealth Bank of Australia. There was a total of $6,890 deposited between 5 March 2019 and 23 March 2019 and each deposit was followed by a large cash withdrawal by Taylor from ATM machines in the South Windsor, Nepean, and Emerton Village areas, on the same day of each deposit.

31. The offender and his partner were monitored having conversations about co‑ordinating the deposit and the withdrawal of the funds from the account and where the money should be kept in the co‑offender’s residence.

32. The offences thus described in my assessment fall below midrange of objective seriousness; not towards or at the lowest end of the scale but somewhere above that. It is always a matter of judgement as to where one should place the objective gravity of an offence but it would seem to me that considering the manner in which these offences were committed by the offenders that is where the objective gravity should be placed.

33. It was said on behalf of the offender that though organised criminal activity, this is not to be brought to account as an aggravating factor. Though by its very nature it is organised criminal activity, it is apparent that it did not involve a great deal of sophistication. He used his mobile phone which was easily intercepted by law enforcement. He placed the money into a bank account held in his name and from which the money was immediately withdrawn by his partner. They were easily detected in the misconduct upon which they had thus engaged.

34. Unfortunately though, the offender has other difficulties that have attracted a greater level of punishment than might have otherwise have been applied. He engaged upon a pursuit with the police that gave rise to the charging of that offence. At 6.40pm on 24 March 2019 a random breath testing arrangement was put in place at a truck stop, 2 kilometres north of Bellata along the Newell Highway. The police were dressed in uniforms with high visibility vests, using marked police cars with their flashing lights activated. They were stopping traffic as it proceeded northbound along that highway. The sign posted speed limit was 110 kilometres per hour along that stretch of road. The roadway was wet because of recent rain.

35. At 7pm, there were two police officers who were attached to the taskforce present at the RBT sites to affect the offender’s arrest in relation to the drug offences that I earlier described. They stood on the road, and stopped and directed a silver coloured Toyota Corolla Hatchback with Victorian registration 10PXXX, to enter the testing site. The offender was driving the vehicle. His partner and their infant son, and the offender’s grandfather, were passengers. The offender stopped the vehicle before the entrance of the testing site after he recognised the officers from prior dealings. He reversed the vehicle and then accelerated the vehicle. The officers were forced to run from the roadway to avoid being hit by the vehicle, and therein is the offence of using an offensive weapon to prevent lawful apprehension.

36. The police initiated a pursuit. They followed the offender’s vehicle in their marked cars with their lights and sirens activated. He travelled no less than 160 kilometres per hour. At the time, traffic was travelling in both directions on the highway. The road was wet. The offender overtook a truck, crossing the double unbroken dividing line on the roadway. He overtook numerous vehicles which forced traffic in both directions off the road to avoid collision. Due to the wet road conditions and his manner of driving, the police terminated the pursuit. His vehicle continued travelling in a north direction and police lost sight of it. Additional police were deployed to search for and locate the offender and his vehicle.

37. This was the pursuit offence. I am of the view that it falls at or about no less than midrange of objective seriousness.

38. With regard to the using of the motor vehicle with intent to prevent his lawful apprehension, I am of the view that that is below midrange of objective seriousness, perhaps halfway between that and the low end of the scale.

39. In due course, the police located the motor vehicle at a rest stop on the side of the highway, 35 kilometres from the RBT site. The offender was not in the vehicle but his partner was in the driver’s seat. The offender’s grandfather and son were in the vehicle. The vehicle and the occupants were searched. Nothing of relevance was found and they were allowed to leave.

40. Police continued patrols around the intersection of the Newell Highway and Tyrone Road, looking for the offender; they saw the vehicle driven by the offender’s partner along Tyrone Road. They directed her to leave and additional resources were brought into the area to continue the search. At 12.50am on 25 March 2019, police located the offender, lying him face down with his hands under his body, hiding under dense bush vegetation along Tyrone Road. Police directed the offender to put his hands behind his head. He did not obey but remained lying face down. Police gave him the same direction again. He did not obey. The police are said to have applied reasonable force to gain control of his hands and arms. He tensed his body and attempted to roll out from underneath the officers, and thus the offence of resist which is to be taken into account in the Form 1. That is to be brought to account in respect of the next offence.

11. While restraining the offender, he embarked upon the intimidation of the officers, Constable Allan and Detective Senior Constable Steff. He is attributed with the following quote:

“Oh it’s just us three here. Take these cuffs off Matt so I have a proper go with this cunt. I’m going to go fucking smash you Allan and then I’m going to smash you Matt. I don’t have a problem with you Matt. I’m going to fucking get you Allan. Come on you cunt. You’re always on my fucking case. Take these cuffs off so I can have a proper go at this cunt. I’m coming for both of you cunts. I’ll shoot you in the back.”

42. I take that to be a serious example of this offence; I put it at or about midrange of objective seriousness, perhaps a little below that.

43. The subjective case however, adduced on behalf of the offender, including limitations which I shall further describe when I deal with the psychologist’s report, have had an impact upon the indicative sentence that I would intend to impose for that offence. Thus although the maximum penalty at five years with a finding that the conduct fell below might midrange might attract a sentence in excess of two years if this matter was being prosecuted on indictment, bringing into account and synthesising the subjective matters that I have considered in this case, it is not appropriate in my view to indicate a sentence beyond that which I have selected and which I shall announce in due course.

44. The offender was licensed at the time. He had a provisional licence but had failed to display any P‑plates when he was driving the motor vehicle.

45. He was taken Moree Police Station. He declined the opportunity to be interviewed when given legal advice. He does not attract any burden having made that decision. He was perfectly entitled to remain mute when in the hands of police officers. No inference adverse is drawn from that decision.

THE OFFENDER

46. He will turn 27 later this year. I have not heard from him but I do have assistance from a psychologist’s report in which he is attributed with a number of representations that could not be said to be self‑serving or to reflect any attempt by him to minimise the significance of his wrongdoing. The attributions are such that I can accept I believe in confidence what is said to be a fair reflection of his circumstances from which one can conclude why he finds himself in his present predicament.

47. I am conscious of what Acting Justice Smart said in the decision of R v Qutami [2001] NSWCCA 353 and the caution that is required when assessing such admissible representations, notwithstanding that they are presented by way of a psychologist’s report, but because of their terms and because of a history which I accept to be faithfully represented to the psychologist, I am satisfied that the information contained in that document is reliable and can be used properly inform the decision to be made with regard to these offences.

48. He has for a man of his age an appalling record extending back to when he was a child and appearing regularly in Children’s Courts. His past offences consist of aggravated break and enter and committing a serious indictable offence on two occasions, committing such an offence with violence on one occasion, on three occasions assaulting and causing actual bodily harm, intimidation on one occasion. On six occasions contravening apprehended violence orders, on six occasions committing common assaults, on three occasions committing robberies armed with an offensive weapon, on four occasions larceny, on one occasion resisting an officer, on two occasions goods in custody, on one occasion damaging property, on one occasion assaulting an officer, on one occasion driving when unlicensed, and on one occasion driving when suspended.

49. The Courts have employed various sentencing options, on many occasions involving non‑custodial orders in breach of which on some occasions he engaged on other misconduct and was called up to answer yet again. Ultimately though, the Courts have gone to the ultimate consequence of imprisonment and even then have given the offender the opportunity to rehabilitate by way of intensive corrections in the community and extended parole periods; but he persists.

50. The offender’s conduct in custody has been less than appropriate. His most recent custodial offence was in November 2019, for resisting or impeding a search. In July 2019, he created or possessed prohibited goods and possessed tobacco, and possessed a mobile phone or SIM card, or charger; it is not entirely clear which. It must have been something significant though because he was six months off contact visits, off buy ups and off television. In preceding periods of imprisonment he was dealt with for assaults, failure to attend a muster, possessing or creating prohibited goods, failing a urine test and intimidation. Thus even in the custodial setting his behaviour is of concern.

51. His partner was prosecuted for her role in dealing with the proceeds of crime. There is no parity issue arising in respect of her. She was dealt with in the Local Court earlier this year and ordered to submit to a Community Corrections Order of 15 months.

52. A psychologist assessed the offender. Ms Lucas wrote on 21 May 2020 of her findings upon a clinical assessment in the presence of the offender with psychometric testing.

53. He grew up in between two households, that of his mother in Bidwell and his maternal grandmother in Moree. His father was incarcerated when the offender was about seven years of age and has only recently been released. Effectively, there has been no relationship with his father and he was protected from his paternal family by his mother, I expect to diminish the influence they might have had upon him. Even so, he found his way into criminal misconduct on a number of occasions as indicated in his record.

54. He does not remember any violence between his parents. He has one sister and one brother. He is the oldest of his siblings. He does not recall his mother or father having drug or alcohol problems. His mother was pro‑social, employed in schools, with no criminal history or affiliations. He has no memory of any traumatic experiences outside of his father’s absence during his childhood. He was comfortable living in both locations and had positive perceptions of his relationship with is mother and of the relationship with his grandmother. He has no relationships with his paternal family. They are said to have extensive criminal histories; his mother had always tried to protect him and keep him away from his father’s relatives.

55. He represented that he had a good upbringing with everything that he needed. He could not recall suffering economic hardship, racial discrimination or other disadvantage. He said he has never really left home, spending his time between these two locations. The only exception was when he lived with his girlfriend’s family. He and his girlfriend have one child now two years of age. He claims to be in contact with the child by telephone each day. He anticipates that his relationship with his girlfriend will resume once he is released. He feels supported when he is in custody and when he is at home. He does not suffer any pronounced areas of deficit. He said that his difficulties in maintaining employment were in effect upon the impression he left from lack of motivation rather than lack of capacity.

56. He did not do well at school for reasons that would appear to be demonstrated in the psychometric testing that he undertook but he completed his Year 10 certificate completed when he was in Juvenile Detention. He does not however experience any difficulty with literacy or numeracy, or other functional academics. There have been numerous short term employment positions, all in low skilled or semi‑skilled employment. The longest period of employment he has had was of four months only.

57. He began using cannabis early in his teens when in the company of friends and at or about 15 he began using methylamphetamine which recently he began to use intravenously. He is aware of the risks that this drug carries but finds that the rush that it provides outbalances any risks that might be associated with it. He has been previously involved in drug and alcohol rehabilitation programs but these have not been successful because, as he acknowledged, he was not ready to give up the substances. The treatment programs which he has undertaken were forced upon him by the criminal justice system rather than at his volition. He has little or no desire to address his substance use. He does not see it as a problem for him. He has no desire to enter treatment for substance abuse either within custody or in the community.

58. He is awaiting tests for sleep apnoea but he has no knowledge of any other medical issues. He is not taking prescribed medication. He received anti‑psychotic and anti‑depressant medication when last incarcerated but his perception is that it was not necessary, and that he suffered no condition that required this medication. He attributed its prescription to misinterpretation by medical staff of comments that he made relating to his cultural and spiritual beliefs.

59. He denies having suffered any aphasic low mood. There was no history of any hallucinations or thought disorder or delusion.

60. His psychological assessment reached clinically was without significance. He however underwent testing for his cognitive function. There were four aspects of this. His composite full score IQ estimate scored at 76, placing him most likely within the borderline range. His overall IQ would be in the fifth percentile meaning that 95% of similarly aged individuals would be expected to score similarly or above on the cognitive skills assessed by the instrument used.

61. The verbal comprehension index gave a score of 74. This fell within the fourth percentile, suggesting that 96% of similar aged individuals would score better than he. Perceptual reasoning tasks were assessed. His performance fell within the borderline low average band of performance, placing him in the 13th percentile. Working memory index was assessed. He performed better than only 3% of his peers.

62. The results of cognitive screening in combination with the clinical assessment, suggested that he has difficulties exerting mental control. He was not grossly impulsive in his task approach but did have trouble adjusting his performance when errors were corrected for him and he had a relatively low concentration span. He has a below average cognitive ability.

63. His forensic history is discussed. He spoke of his property and stealing offences as being directed towards obtaining funds, typically for drugs and luxury status items. He said he has no problems with containing or expressing anger although that does not sit comfortably with the description of what occurred when he was arrested. He does engage upon interpersonal violence but in a controlled context to achieve an end or desired outcome rather than to explosively reveal anger. He did not attempt to minimise or make any excuses regarding his involvement in these offences. He found that he could make large amounts of money quickly in dealing in drugs and could recover more funds than he would otherwise earn through legitimate employment.

64. He reflected upon his lack of involvement with his son while he is in gaol but that perception was tempered by his discussions with regard to the opportunity his misconduct presented, to be able to buy things for his son. He demonstrated low awareness of harm that he might cause and he had low victim empathy.

65. He presented as being resigned to imprisonment. He was asked about his thoughts on what would be required to redirect his behaviour in the future. He responded that he had no idea. He commented that his partner and his mother had both told him that he needs to grow up and he does not disagree with that proposition.

66. The impression left, that he does not examine or appreciate the broader consequences of his actions. He is a risk taker. He receives an emotional reward from the rush his activities provide. He impressed as having a simplistic immature approach to reasoning and he has somewhat concrete intellectual function. He tends to socialise with individuals who are involved in anti‑social conduct.

67. He acknowledged the efforts and attempts to guide, offered by his mother and grandmother.

68. I am not entirely clear of the connection between this grandmother and the person with whom he left the product for delivery in Moree. One might be suspicious that she had some knowledge of what it was about, from the description that is given in the facts, but I do not take that view upon the limited information that I have. If it was this grandmother, it is equally consistent with what I have that she was simply responding to his request rather than any involvement in the criminality.

69. The lack of a male model in his formative years is noted, perhaps allowing him to gravitate toward peers who would engage in anti‑social activities throughout his schooling years and beyond.

70. The research accessed for the purposes of this report reflected upon individuals such as this offender, who is exposed to the greater risk of delinquency and with limited control might engage upon impulsive behaviour with inadequate consideration of consequences. This propensity would increase with the misuse of prohibited drugs.

71. In para 67, the psychologist wrote:

“The impression was gained that to achieve change towards a more pro‑social existence, Mr Duke will require assistance to realistically examine and challenge his current attitudes towards life goals and the method by which he achieves such goals. In this regard, a program which incorporates motivational interviewing may benefit Mr Duke in identifying his key priorities and helping him to build skills to achieve those priorities in a lawful manner. Mr Duke would benefit from building skills which direct towards abstinence from drugs, addressing his poor problem solving and to challenging his anti‑social attitudes, in addition to strengthening his vocational opportunities. Stability and accommodation, examining the associates he chooses to spend time with and increasing his positive engagement with family and community.”

72. Upon my assessment of the offender gained through this report, that would seem to me to be apposite comment and one that those responsible for supervision in due course, might bring to account, hopefully to assist him in his rehabilitation.

FINDINGS

73. I accept that he has demonstrated contrition and remorse. He has not as I have indicated, sought to minimise or avoid the seriousness of his misconduct. As the psychologist noted, there is almost a resignation in his presentation to his present circumstances. He has not sought to shelter behind the principles for which the decisions in Bugmy v R [2013] HCA 37 and R v Fernando (1992) 76 A Crim R 58 stand. If he is to be accepted in his representations given in the document, his formative years but for the absence of his father, provided nurturing and care and all that he required but without perhaps the benefit of a relevant male role model in his life. He involved himself with anti‑social peers from a young age and followed the path to where he is now, facing a sentence of imprisonment for serious criminal misconduct.

74. Prospects of rehabilitation must be guarded. Indeed, the effect of the psychological assessment, leaves me with the view that to identify his prospects as guarded is a generous description for him, but in light of the passage that I quoted from a psychologist report, and drawing upon the remainder of the document including the representations attributed to him, he is in need of an extensive period on parole in my view. It will be a parole period that he must earn because of the length of the sentence that I am going to impose; if he is capable of behaving himself in custody and earning his freedom when he is eligible for parole, he will need supervision to guide him from the behaviour that has caused his present predicament.

75. All of the aspects of sentencing are engaged here as articulated in s 3A Crimes (Sentencing Procedure) Act 1999. General deterrence has its role to play of course but in this case, specific deterrence has a particular importance which also informs the need for an extended period on parole. I have no difficulty coming to the view that there are special circumstances justifying, of course.

76. There are seven offences upon which sentences are to be determined and I shall now deal with that.

77. I should note before I go to that step that I have taken note of the careful submissions prepared on behalf of the offender and on behalf of the Crown. All relevant matters have been brought to my attention as I perceive them and it has assisted me in coming to the decisions that I have. The seriousness of this misconduct cannot be understated.

78. The points made by Ms Webb on behalf of the offender, included the relative seriousness of the misconduct that is before me and the extent to which there is overlap between the offences and the misconduct involved in each. The proceeds of crime offence and the drug supply offence of course, involve the same broad range of conduct. The behaviour thereafter though when the police sought to arrest him, will require appropriate accumulation but within the various offences upon which he engaged in that behaviour there will be a measure of concurrence brought to bear. I have reviewed the comments regarding the subjective circumstances made on behalf of the offender and the observation with regard to his apparent limited capacity to consider consequences of impulsive behaviour.

79. I have noted already, his cognitive deficits assessed on the psychometric testing. I have noted what was said about his prospects for rehabilitation. Both representatives are ad idem on the point that the protection provided in s 5 Crimes (Sentencing Procedure) Act 1999, as being dissipated by the extent of the misconduct upon which the offender engaged and that no sentence other than a custodial sentence is appropriate in the circumstances of this case.

80. The parties are ad idem upon the absence of relevance to the principles in Bugmy ibid and Fernando ibid in this particular case. Upon reflection, one might consider that because of his cognitive limitations, the lack of an appropriate male role model probably contributed to his vulnerability when exposed to anti‑social and perhaps slightly older peers, but the traditional Bugmy ibid and Fernando ibid considerations arising from deprivation do not seem to have any role to play in this case in light of the candid comments of attributions contained in the psychological report.

THE SENTENCES

81. In respect of each of these offences, I convict the offender.

82. There is also before me, I should observe before we go further, the breach of a conditional release order. This is in respect of an offence of larceny in a licensed club where the offender in company, with three other men, accessed a machine. The documents describe a cash redemption terminal from which a cashbox was stolen. The value of that item is said to be $250. I note on the court attendance notice, endorsement apparently by the magistrate of the sum of $950 - “what was in the box?” That is ambiguous in its terms but in any event he was still charged with stealing the cashbox to the value of $250. It perhaps contained $950 in cash but that is not entirely clear on the material I have.

83. In any event, he committed that offence in company with three other males when he was arrested by police in due course. He claimed ownership of the crime, asserting that the others had nothing to do with it. He was convicted and ordered to enter a conditional release order for a period of 12 months, pursuant to s 9(1)(a) Crimes (Sentencing Procedure) Act 1999, from 30 January 2019 and it was in breach of that order that he committed these further offences.

81. He consents to this Court disposing of the breached proceedings and thus he is called up in respect of that. The conditional release order is revoked and in lieu thereof, I specify a term of imprisonment of 2 months as an indicative sentence.

82. I shall now proceed through the various offences with reference to their “H” numbers.

83. For the offence of larceny, the subject of the breach proceedings, H65651444/1 on 9 November 2017, I specify an indicative sentence of 2 months’ imprisonment.

84. For the offence of failing to display P‑plates, H73224988/7 on 24 March 2019, the offender is convicted but pursuant to s 10A Crimes (Sentencing Procedure) Act 1999 I impose no penalty.

85. For the offence of intimidating the officer in the execution of duty, H73224988/9 on 25 March 2019, I indicate a sentence of imprisonment of 9 months; this was reduced by a discount of 25% for his plea of guilty.

86. For the offence of supply a prohibited drug on an ongoing basis, H312852994/6 between 15 February and 24 March 2019, I specify a sentence of imprisonment of 3 years which was reduced by 25% for the plea of guilty.

87. For the offence of dealing with the proceeds of crime, H312852994/7 between 15 February and 24 March 2019, I indicate a sentence of 11 months and 7 days which was reduced by a discount of 25% for the plea of guilty.

88. For the offence of police pursuit, H7322498/1 on 24 March 2019, I specify a sentence of 1 year and 6 months which was reduced by a discount of 25% for the plea of guilty.

89. For the offence of using an offensive weapon to prevent lawful apprehension, H73224988/11 on 24 March 2019, I specify a sentence of 1 year, 10 months and 15 days which was reduced by a discount of 25% for the plea of guilty.

90. I have taken into account, the additional offence when assessing a sentence for the charge of intimidation of a police officer, H73224988/9; I shall certify the copy of that document included in the Crown bundle, now exhibit B.

91. I specify an aggregate sentence which shall commence on 1 July 2019. It is a sentence of 4 years and 8 months to expire on 29 February 2024. I specify a non‑parole period upon a finding a finding of special circumstances of 2 years and 8 months. That shall expire on 28 February 2022. Thus the sentence is 4 years and 8 months, comprising the non‑parole period of 2 years and 8 months from 1 July 2019 to 28 February 2022, with the overall sentence to expire on 29 February 2024.

92. I have produced a copy of those orders drawing upon the program available through JIRS and copies are made available to the parties.
    Are there any other orders required?

93. WEBB: No, your Honour.

94. HIS HONOUR: I will leave the exhibits on file for the benefit of the parties and I will leave you to make contact with the offender, Ms Webb, to explain to him but I will tell him now what the overall outcome is.

95. Mr Duke, all of these offences, I have gone through and listed the penalties in each case that I have seen as appropriate but the aggregate sentence overall, is a total of 4 years and 8 months, starting on 1 July 2019. I have specified a non‑parole period of 2 years and 8 months to expire on 28 February 2022. It is really a matter for you now to demonstrate while you are in custody, your eligibility for parole and when that non‑parole period has expired, all things being equal, I would expect you to be released and you will be under supervision for a period of two years after that but it is about time you turned around. So take the opportunity that this has provided for you and hopefully, we will not see you back in the system.

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Endnote

Decision last updated: 02 July 2020