R v Fam

[2023] NSWDC 119

District Court

New South Wales

Medium Neutral Citation:

R v Fam [2023] NSWDC 119

Hearing dates:

30/11/22-15/12/22, 25/1/23

Date of orders:

25/1/23

Decision date:

25 January 2023

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 2 years 7 months with a NPP of 1 year 7 months (7/5/22-6/12/23).

I find special circumstances.

The indicative sentences are:

Count 2 Common Assault – 8 months.

Count 6 AOABH – 2 years 3 months.

Seq 1 on the s166 certificate (Contravene ADVO) – 3 months.

Seq 3 on the s166 certificate (Contravene ADVO) – 4 months.

Catchwords:

Crime – Sentence – Assault – Assault occasioning actual bodily harm – Breach of apprehended domestic violence orders

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Fangaloka v R [2019] NSWCCA 173

R v Crombie [1999] NSWCCA 297

R v Hamid [2006] NSWCCA 302

Category:

Sentence

Parties:

NSW DPP – Crown
Andrew Fam - Offender

Representation:

Mr J Mehta for Crown
Mr J Trevallion for Def

File Number(s):

21/103838

Publication restriction:

Statutory non-publication order in relation to the identity of the victim

sentence

1. The offender, Mr Andrew Fam, stood trial in December 2022 on an eight count indictment of alleged offences against the victim involving allegations of violence and sexual assault. On 14 December 2022 the jury found him guilty of counts 2 and 6 but not guilty of the remaining counts. Count 2 is a charge of assault which carries a maximum penalty of two years imprisonment and count 6 is an offence of assault occasioning actual bodily harm which carries a maximum penalty of five years imprisonment.

2. In addition, there are two offences on a s 166 certificate which are uncontested breaches of Apprehended Domestic Violence Orders which relate to the offender's contact with and violence upon the victim on, firstly, 10 to 11 April 2021 and, secondly, 13 to 14 April 2021 being the dates of the commission of the offences in count 2 and count 6 respectively. Each of those offences, in which I am limited by the same jurisdiction or restrictions as would apply in the Local Court, carry a maximum of two years imprisonment. In making that comment I am, of course, referring to the matters on the s 166 certificate.

3. The maximum penalties for each of the offences are important guide posts in the sentencing exercise to which I have had regard.

4. It is for me to find the facts on which the offender is to be sentenced. My findings must be consistent with the jury's verdicts and any matters in aggravation must be proved beyond reasonable doubt while matters in mitigation only on the balance of probabilities.

FACTS

5. I find the following facts. The offender and the victim met in about late 2017 through a mutual group of friends. However, their relationship became an intimate one after a trip to Bali in December 2019. After this, the relationship was somewhat on and off and involved some incidents of violence being committed or alleged by both parties. Mutual apprehended domestic violence orders were eventually granted in relation to both the offender and the victim. Those orders remained in place into 2021. Despite these orders, the offender and the victim continued to have contact and, at some stage, the victim and the offender were living in different apartments in the same unit complex on South Dowling Street in Sydney.

6. However, on 22 February 2021 the victim relocated herself to Brisbane while the offender remained living in Sydney. Despite this, the two persons continued to be in contact with one another and in early 2021 the offender flew to the Gold Coast and met up with the victim and they spent about four days together. On Thursday 8 April 2021 the victim flew to Sydney. She rented an apartment in the Veriu Suites at Green Square. Once in Sydney, she messaged the offender and asked him to come over. At this stage, the victim still had some of her property in storage at the same apartment block where the offender lived on South Dowling Street which she intended to retrieve at some stage and she wished to avoid an awkward interaction if they met inadvertently.

7. Also, and as the victim said a number of times in her evidence, there was still some "spark" of a relationship between the offender and herself at this time. The offender attended at the victim's apartment late on the night of 8 April 2021 and they spent the night together. The next day, 9 April, the offender dropped the victim at a courthouse where she was required to attend in relation to some prior incident and that night, the victim stayed at the Star Casino.

8. The next day, which was 10 April, was the victim's birthday. The offender called the victim in the morning and wished her happy birthday and asked if she wanted to go out that night for her birthday, with which she agreed, and an arrangement was made for the offender to pick her up from the Veriu Suites. That night, the victim and the offender went to dinner in the eastern suburbs. After this, on the suggestion of the offender, they stopped at an "adult shop" where a vibrator and fishnet stockings were purchased. They then went to the offender's unit where they arrived about 10.30 or 11.30 pm and engaged in sexual intercourse.

9. It was proposed that later that night the offender would take the victim out somewhere in celebration of her birthday. However, the offender indicated that he first wanted to have a short nap. The victim waited for about two hours while the offender slept, after which she tapped him and asked if they were going out. This had the effect, as the victim said, that the offender "erupted" and punched a bedside lamp which shattered. According to the victim, she herself pushed some items from a bedside set of drawers and thereafter a violent altercation took place in which the victim was punched by the offender at least once, including to the lip and eyebrow area. The victim said in evidence that, as a result, she suffered a cut inside her lip and a bruise to her left eyelid.

10. It was these injuries which formed the basis of the count 1 charge of assault occasioning actual bodily harm. However, while the offender was found guilty of the alternative count 2 assault offence, he was found not guilty of the count 1 assault occasioning actual bodily harm charge. It follows that while the jury was satisfied that the offender assaulted the victim, it was not satisfied beyond reasonable doubt of the actual bodily harm, namely, a cut inside the lip and a bruise to the eyebrow.

11. Another allegation which formed part of this incident was the victim's allegation that the offender at one point grabbed her by the throat and, in effect, lifted and pushed her against a wall amounting to an intentional choking of the victim. In order to find the offender guilty of this charge, the jury was instructed that it had to be satisfied beyond a reasonable doubt not only that the victim was grabbed by the throat, but also that this was capable of affecting her breathing and/or the flow of blood to or from her head. As the jury returned a not guilty verdict on count 3, it follows that it was not satisfied about the essence of this choking allegation and so, I put it aside as I do the remainder of the allegations upon which the offender was found not guilty.

12. In relation to this first incident which took place on the night of 10 to 11 April 2021, the offender is to be sentenced on the basis of the offence in count 2 which was expressed in the alternative to count 1. The jury was instructed in relation to this offence that before it could return a verdict of guilty it had to be satisfied beyond a reasonable doubt that the offender had punched the victim somewhere on the face, although it did not need to be satisfied that there was any actual bodily harm. I proceed to sentence therefore on the basis that I am satisfied beyond reasonable doubt that during this altercation the offender struck the victim at least once to the face with a closed fist although not with sufficient force to cause injury that can be regarded as "actual bodily harm".

13. Despite this incident, the victim spent the remainder of the night at the offender's apartment. However, she communicated electronically with two friends in a manner that was consistent with there having been an altercation between her and the offender in which she was assaulted. This included a message sent just after 11am the next morning to her friend Joseph Bond in which she said, "I'm okay. A little traumatised and upset but I'm okay". Also, at about 2.49am she sent a message to a mutual friend named Amina in which she said, "Babe, he beat me up again. My face is bruised. I don't know what to do".

14. The jury must have had a reasonable doubt that there was any actual bodily harm such as bruising, so I put this suggestion aside. However, the messages to which I have just referred provide significant corroboration for the victim's evidence that she was assaulted and as I have said, I am satisfied beyond reasonable doubt that the offender did assault the victim by striking her to the face at least once with a closed fist.

15. The morning after these events was Sunday 11 April 2021. By this time, the offender had, as the victim put it, "calmed down" and he drove the victim back to the apartment where she was staying. At this stage, the victim was still feeling somewhat traumatised, which is consistent with the messages she sent her friends and which are set out in trial exhibit 11. The victim, after changing out of clothes she had borrowed from the offender, had a shower. Upon getting out of the shower, she noticed a number of missed calls from the offender and then spoke with him. When the offender said he wanted to come up to the victim's room, she agreed, and after he arrived, the pair engaged in consensual sexual intercourse. After this, the offender and the victim went to breakfast, after which he drove her to the home of a friend, Brandie Starr, where she intended to stay until taking a flight back to Queensland.

16. Further contact between the victim and the offender occurred later that day. This is confirmed by the contents of trial exhibit 12 which records that shortly before 7pm the offender sent a message to the victim saying, "Are you okay B?" followed by an emoji image of two hands in a prayer position. To this, the victim replied, "Not really…I feel confused and sad and really shaken up. I just feel so broken". The offender replied to this about half an hour later saying, "Don't be plz. I'm just having dinner with Rob. I'll call you soon". These messages provide support for the victim's evidence that there was an incident that took place between her and the offender on the night of 10 11 April and contradict the offender's case at trial which, in effect, was that there was no physical incident between them until the evening of 13 14 April.

17. It is not surprising, having regard to all of the evidence, that the jury were satisfied beyond reasonable doubt of the count 2 assault. Also, in my view there was nothing inherently inconsistent with this and the jury's not guilty verdicts on counts 1 and 3. Those not guilty verdicts are consistent, in my view, with the jury approaching its task carefully and in accordance with the directions I gave them. Namely, that on count 1 they had to be satisfied beyond reasonable doubt that there was a cut to the inside of the lip and a bruise to the left eyelid of the victim. In this regard, no photographs were ever taken which showed any injury to the lip, and in relation to the bruise to the eyebrow, the photographic evidence about this was confounded somewhat by reason of the very extensive injuries to the victim's face which are obvious in trial exhibit 9 and trial exhibit 25, which were not taken until after the second assault to which I will make reference in a moment. And, in relation to count 3, the jury had to be satisfied not only that the offender took hold of the victim by the throat but that this involved a degree of force capable of affecting her breathing or the flow of blood to or from her head. As the victim gave no evidence about these effects, it was always going to be difficult for the Crown to prove that charge, the allegation about which, of course, I put aside.

18. The victim spent the night of 12 April at the home of her friend, Brandie Starr. During the next day she went shopping for some clothes and met with some friends, after which she returned to Brandie's house. However, during the afternoon Brandie told the victim that she had someone coming over and asked if the victim would mind going out. That same afternoon the victim had some missed calls from the offender and, eventually, called him back and asked if she could come over. The victim made this request in part because she had some laundry to do and wanted to use the offender's washing machine. After taking an Uber to the offender's apartment where she arrived shortly after 4pm, the victim and the offender had consensual sexual intercourse and after this, there was a degree of bickering between them. At some stage, the victim used the offender's washing machine to wash her clothes.

19. During the evening, some take away food was delivered to the apartment and later in the night, the victim left to buy some items from a supermarket. After she returned, the victim made some dessert and the two of them watched a movie or TV during which the offender received some sort of messages or notifications on his phone. Count 4 and the alternative count 5 involved allegations that the offender had detained the victim without her consent during this same evening, however the offender was found not guilty of these two charges but guilty of the further alternative to count 4, that he assaulted the victim and caused her actual bodily harm.

20. This count 6 offence, for which the offender is to be sentenced, arose out of an altercation that took place some time after about 11.30pm on the night of 13 April 2021. The evidence in the trial involved competing versions of what led up to this incident and as to what happened during it. It is not possible for me to unravel these competing versions to arrive at any clear picture of all the events. However, I am satisfied beyond reasonable doubt of at least the following: some time after 11.30pm the intercom buzzer to the offender's apartment was activated by a friend of the offender named Stephanie Dinh, who was downstairs with some other friends and who was trying to contact the offender. At around the same time Ms Dinh called the offender's mobile phone which was answered by the victim.

21. There are competing versions from Ms Dinh and the victim as to exactly what was said in this phone call and it is not possible and not necessary for me to come to any clear conclusion as to the exact terms of the conversation. What is clear, however, is that the phone call from Ms Dinh triggered an argument between the victim and the offender which became very loud and aggressive. The evidence of the victim was that the offender became enraged at her having answered his phone and that in response, he repeatedly slapped her very hard with an open hand to the left side of her face and neck.

22. The offender's version, however, which was not put before the jury by evidence on oath but in the form of a video recorded conversation with police at his unit, was to the effect that it was the victim who reacted violently and, as he put it, "went berserk". The offender told police that the victim smashed various items in his unit and struck and scratched him in the course of a scuffle in which he was acting only in an attempt to defend himself and his property and to calm the victim. Exhibit 4 in the trial shows the significant and widespread nature of the damage that was done inside the apartment in the course of this incident. It is not possible for me to determine with precision the exact nature of the events that unfolded after the phone call from Ms Dinh. However, I am satisfied beyond a reasonable doubt that there was, as I said, a loud and aggressive argument and that this involved a physical scuffle or scuffles between the two people, during which a good deal of damage was done and a good deal of mess was created in the apartment.

23. Exhibit 7 from the trial shows some injuries which the offender says he suffered in the course of this incident which are consistent with scratches, mainly to his arms and chest area. I accept that these injuries were inflicted by the victim in the course of the scuffles to which I have made reference. As the offender in the trial relied upon self defence, the jury were instructed that it was necessary for the Crown to disprove self defence. Either by proving beyond reasonable doubt that the offender did not believe it was necessary to act as he did in order to defend himself or his property, or alternatively, that his actions were not a reasonable response in the circumstances as he perceived them. The jury's guilty verdict on count 6 confirms that it was satisfied that the Crown had disproved self defence beyond reasonable doubt.

24. It was argued on sentence by counsel for the offender that I would conclude that the jury's verdict of guilty on count 6 was reached on the basis that the offender did act in self defence but that his actions were excessive or not a reasonable response and that I should approach the sentence on this basis. I have considered this submission but I do not accept it. Trial exhibits 9 and 25 are colour photographs documenting the injuries which the victim suffered. They show very extensive bruising and what Dr Dobbie described as abrasions, primarily to the left side of the victim's face and neck, although there were also injuries to other parts of her body.

25. The facial and neck injuries documented by Dr Dobbie and depicted in exhibits 9 and 25 provide, in my opinion, powerful support for the essence of the victim's evidence, namely, that she was hit repeatedly to the left side of her face by the offender's open hand. These injuries are, in my view, inconsistent with the offender's improbable version that any injuries to the victim occurred only in the course of his attempting to restrain and "calm" her and that the marks to her neck were caused by pressure on her neck chain jewellery. Given the severity of the injuries depicted in exhibits 9 and 25, it is not surprising that the jury rejected this implausible version from the offender just as I do. Rather, I am satisfied beyond a reasonable doubt that in the course of an argument and physical altercation between the offender and the victim, the offender in a brutal and cowardly manner assaulted the victim by repeatedly striking her with an open hand to the side of her face and neck. I reject the suggestion that this was done in self defence.

26. I am further satisfied beyond reasonable doubt that in being struck repeatedly to the face and neck, the victim suffered considerable pain and significant injuries involving swelling and bruising and the "finger mark" abrasions to her neck and face which are only too obvious in exhibits 9 and 25. In making these findings, I do not suggest that the victim was during these events merely a limp and passive participant. To the contrary, I accept, based on the injuries to the offender and also the "tendency evidence" of other events involving the victim on other occasions, that she was herself quite capable of aggression, violence and damage and not the sort of person who is likely to have sat passively by while the offender assaulted her. The damage to the offender's apartment and the injuries in the nature of scratches to the offender's body support this conclusion.

27. I also accept that some of the injuries suffered by the victim may have occurred in the course of the offender trying to defend himself. However, none of this provides any excuse whatsoever for the cowardly actions of the offender who dwarfed the victim in all physical attributes including height, weight and strength and used those attributes to repeatedly strike the victim to the left side of her face and neck. This was an utterly unequal contest which is no doubt why the offender did not hesitate in acting in the cowardly manner that he did and assaulted a woman who was nearly half his size and probably half his strength.

OBJECTIVE SERIOUSNESS

28. Turning then to my assessment of the objective seriousness of the two offences. In determining sentence, it is important that I make an assessment of the objective seriousness of each of the offences. The fact that they attract significant maximum penalties, and in the case of count 6 a maximum of five years, marks them each as potentially quite serious offences. However, the maximum penalties are, of course, aimed at the worst type of case and it is not suggested that either of the two particular offences before the Court fall into that category.

29. The jury's guilty verdict on the count 2 offence is consistent with a conclusion which I accept beyond reasonable doubt that the offender punched the victim at least once to the face, impacting the areas between her eyebrow and lip. The offence involved the offender taking advantage of his very substantially larger size and strength and involved a victim who was in a relatively helpless position, being alone and isolated in the offender's apartment. As the offence involved an assault upon a woman with whom the offender was in a type of relationship, it was an offence of a domestically violent nature which makes it more serious than if it had been, for example, an assault on a stranger. I assess this offence as being around the mid-range of objective seriousness.

30. The count 6 offence is obviously significantly more serious, not only because of its greater maximum penalty but due to the nature of the assault and especially the nature of the victim's injuries, as I have earlier said. I am satisfied beyond reasonable doubt that the majority of the injuries to the victim's face and neck were sustained when the offender repeatedly struck the victim with his hand to the left side of her face and neck. Like the count 2 assault, this offence involved the offender taking advantage of his very substantially larger size and strength and involved a victim who was in a relatively helpless position being alone and isolated in the offender's apartment.

31. As the offence involved an assault upon a woman with whom the offender was in a type of relationship it was, again, an offence of a domestically violent nature and more serious than an assault upon a stranger. It was argued that the seriousness of the count 6 offence is reduced because the offender was "provoked" by the victim. However, I do not accept this. While it is possible that the argument between the two persons might have been caused or precipitated by the victim, the evidence is not sufficiently clear for me to make any determination about this even on the balance of probabilities. And even if the evidence had supported a finding of so called "provocation", this would not, given the physical power imbalance between the victim and the offender and the severity of the victim's injuries, be a matter which would reduce the seriousness of this offence to any significant degree. In my view it is an offence which is above the mid-range of objective seriousness.

32. Although not relevant to the objective seriousness of either offence, the overall criminality of the offender is increased by reason of the fact that he was on bail for other charges which related to the same victim.

33. A Victim Impact Statement was placed before the Court from the victim. The Crown did not rely upon this as aggravating the offences and I do not treat it that way. However, the Victim Impact Statement confirms what I accept are the common, or perhaps almost invariable, consequences of domestic violence type offences such as these. While in most cases the physical injuries tend to fade or resolve, the emotional and psychological consequences can be expected to be much longer lasting as is the situation with the victim who has been left with flashbacks and recurrent fears arising from the violence that she suffered.

SUBJECTIVE MATERIAL

34. Turning then to subjective matters relating to the offender. He is now aged almost 36 and was 34 at the time of the offences. I have limited information about the offender's background and his current mental state or his mental state at the time of the offences. His subjective case has been placed before the Court largely by means of a number of character references. He is a person with a good work history and, as his brother explains in a letter to the Court, the offender is the owner of an apparently successful recruitment business. Given the number of testimonials tendered in his case on sentence, he appears to have a good network of friends and associates which provides some assistance to him in terms of his future prospects. Those testimonials describe him as a generous and spiritual person and I accept that, in the right environment, he does likely have those sorts of attributes.

35. He is not however assisted by his criminal history. It commences with offences of assault, damaging property and intimidating a police officer in 2006 when he was aged about 19. He also committed in 2016 an offence of resisting a police officer in the execution of duty and possessing drugs, with a further drug offence in 2017. Also, between 2011 and 2015 he committed several offences of driving while either suspended or disqualified, leading to his being sentenced to a term of imprisonment which was ultimately suspended upon his entering into a bond. More relevantly for the current sentencing exercise, he was in May 2021 placed on Community Correction Orders for offences of assault, damaging property and contravening an apprehended domestic violence order, these being offences involving the same victim and for which the offender was on bail at the time of the offences now before the Court.

36. Furthermore, there is the fact that he breached the terms of his bail while awaiting trial and while in his current custody he has been dealt with for disciplinary offences of obstructing a correctional officer and disobeying a direction.

REMORSE AND REHABILITATION

37. The offender defended the proceedings as was his right and apparently maintains his innocence, and so, there is no remorse. As I have earlier noted, the offender's criminal history does not assist him with his claims for leniency and in his prospects of remaining offence free in the future.

38. The fact that he has stable employment to which he can return and is supported by family and friends are, however, positive matters. Having regard to all of the evidence, I assess his prospects of rehabilitation as reasonable but uncertain.

EXTRA-CURIAL PUNISHMENT

39. It was argued that the offender has suffered a form of extra curial punishment by reason of a media article which, I am told, referred to and named him along with a photograph of him in connection with his breach of bail on these matters. I have had regard to this but it is not a matter to which I attach any significant weight.

THE PANDEMIC

40. The offender's periods of custody to date while bail refused have been during the current COVID pandemic, which in 2021 and 2022 imposed significant problems and limitations on persons in custody. I accept that, to some extent, that continues to be the case today and likely, to some extent, into the future. I have had regard to this and the fact that it has made and may continue to make the offender's time in custody more onerous than it otherwise might have been.

DETERMINATION

41. In determining the sentences for counts 2 and 6, I have taken into account the submission that those two matters could have been dealt with in the Local Court if taken on their own and in the absence of the charges which the jury found the offender not guilty. The election by the Crown to have them dealt with in this Court was of course intricately linked with the fact that there were various other serious offences on the indictment, most or all of which could only appropriately be dealt with in this Court. The fact that counts 2 and 6, taken in isolation, could have been dealt with in the Local Court does not require me to proceed on the basis that the maximum available sentence is that which could have been imposed in the Local Court. However, it is a relevant matter that I have taken into account having noted the principles discussed in R v Crombie [1999] NSWCCA 297 at para 16.

42. I have also taken into account Local Court statistics in relation to the two types of offence on which I must impose sentence, although with the necessary caution with which statistics must be treated given that they are silent as to the objective and subjective circumstances of the cases they involve.

43. I am satisfied that the threshold referred to in s 5 of the Crimes (Sentencing Procedure) Act 1999 has been crossed. In other words that no penalty other than a term of imprisonment is appropriate. This was a matter which was conceded on behalf of the offender, at least in relation to counts 2 and 6.

44. I have had regard to the principles and purposes of sentencing as set out in s 3A of that same Act, which refer to the need for adequate punishment, the importance of preventing crime by deterring the offender and others, protecting the community, making the offender accountable, denouncing his conduct, recognising the harm done to the victim and the community, and also the importance of promoting the rehabilitation of the offender. In R v Hamid [2006] NSWCCA 302, Johnson J said at para 86,

"In sentencing a domestic violence offender and, in particular, a repeat domestic violence offender, specific and general deterrence are important factors together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important".

45. These remarks and the importance of deterrence, both personal and general, are in 2023 all the more relevant given the continued prevalence of and the public concern about violence against women.

46. I intend to impose an aggregate sentence. In those circumstances, it is a requirement that I set out the indicative sentences that I would otherwise have imposed if imposing a separate sentence for each offence. These are not the ultimate sentence that I will impose. I will make the ultimate sentence clear in a few moments. The indicative sentences are as follows: for count 2, eight months imprisonment; for count 6, two years three months imprisonment. For the sequence 1 offence on the s 166 certificate, three months imprisonment. For the sequence 3 offence on the s 166 certificate, four months imprisonment.

47. I have had regard to totality principles and the extent to which the sentences ought to be cumulative or concurrent. In my view, there is a need for some notional accumulation between the sentences for counts 2 and 6. These offences involve offending on two separate occasions with the second offence involving a serious escalation of violence against the same victim. The two offences on the s 166 certificate of contravening an Apprehended Domestic Violence Order are made out on the basis, not only that prohibited contact occurred with the victim but more seriously, by the violence inflicted on these occasions which was a further breach of the orders. It is the fact that each offence involved these two aspects as well as the fact that the offender was on bail for similar matters against the same victim and the importance of personal and general deterrence that satisfy me that the two offences of breach ADVO also cross the s 5 threshold.

48. However, I accept with respect to these offences on the 166 certificate that there is a considerable degree of overlap between them and the criminality arising from counts 2 and 6. In my view, therefore, the sentences for the s 166 certificate matters ought to be largely concurrent with the sentences respectively for counts 2 and 6.

49. I impose an aggregate head sentence of two years seven months. I have considered whether that sentence ought to be served by means of full-time custody or whether it would be more appropriate that it be served by means of an Intensive Correction Order in the community. In support of this argument, counsel for the offender relied upon the fact that the offender has already served a period of full-time custody and that there had been no further breaches of the apprehended domestic violence order protecting the victim, and further argued that community safety and the purposes of sentencing would best be served by the offender being released into the community on an ICO. I have considered this submission but, in my view, an ICO in this case would not adequately meet all of the purposes of sentencing. In particular, the importance of general deterrence, specific deterrence, appropriate punishment and retribution, community safety and the need to recognise the harm done to the victim and to society generally by these sorts of prevalent offences.

50. As Basten JA said at para 67 of Fangaloka v R [2019] NSWCCA 173:

"…there will remain cases in which the significant element of leniency contained in an ICO is inconsistent with the imposition of an adequate penalty, so that an ICO is an unacceptable form of punishment".

51. In my view this is a case where, even if I were to conclude that an ICO was "more likely to address the offender's risk of reoffending", the additional element of leniency inherent in an ICO is such that it would be an inadequate form of punishment.

52. I find special circumstances for adjusting the ratio between head sentence and non-parole period based upon this being the offender's first period of full time custody and the need for him to be monitored for a reasonable period of time upon his release to parole.

53. I impose a non parole period of one year seven months. It is appropriate that time already served be taken into account in terms of the commencement date of the sentence. Based on the agreed dates set out in the Crown sentence summary and the time that has passed since those dates were calculated, during which the offender has remained in custody, I calculate that he has spent 263 days in full time custody in relation to these matters. I intend to backdate the sentence by that period of time. The sentences therefore will date from 7 May 2022. The head sentence will expire on 6 December 2024. The non-parole period will expire on 6 December 2023.

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Decision last updated: 27 April 2023