R v Feilo
[2025] NSWDC 446
•30 October 2025
|
New South Wales |
Case Name: | R v Feilo |
Medium Neutral Citation: | [2025] NSWDC 446 |
Hearing Date(s): | 17 October 2025 |
Date of Orders: | 30 October 2025 |
Decision Date: | 30 October 2025 |
Jurisdiction: | Criminal |
Before: | Mahony SC DCJ |
Decision: | Intensive Correction Order imposed. For orders see [88]-[93] |
Catchwords: | SENTENCE – Stalk/intimidate intend fear physical etc harm – Assault occasioning actual bodily harm in company of others – Aggregate sentence – Intensive Correction Order |
Legislation Cited: | Crimes Act 1900 (NSW) |
Cases Cited: | Ali v R [2010] NSWCCA 35 |
Category: | Sentence |
Parties: | Vaeluagomatagy Feilo (the offender) |
Representation: | Counsel: |
File Number(s): | 2021/00185423 |
Publication Restriction: | Nil. There is however a non-publication order regarding the name of the co-accused who is referred to as MS |
REMARKS ON SENTENCE
The offender who was born in 2002 has pleaded guilty and is to be sentenced in respect of the following two offences:-
Count 1 – Offence pursuant to s13(1) of the Crimes (Domestic and Personal) Violence Act 2007 (NSW) (“the CDPVA”) of stalk/intimidate intend fear physical etc harm. The maximum penalty for this offence is 5 years imprisonment and/or $5,500 fine and there is no standard non-parole period prescribed.
Count 2 – Offence pursuant to s59(2) of the Crimes Act 1900 (NSW) (“the CA”) of assault occasioning actual bodily harm in company of others. The maximum penalty prescribed for this offence is 7 years imprisonment and there is no standard non-parole period prescribed.
The offences occurred on 14 April 2021, and the offender was arrested on 28 June 2021. He was in custody for a period of 5 months and 20 days (173 days) until granted conditional bail on 17 December 2021. The offender was in custody for a period of 6 months and 7 days (200 days) for the period 1 June 2021 to 17 December 2021 when he was bail refused in relation to other matters. When eventually sentenced in respect of that matter (H81363954) the time spent in custody in relation to the index offences was taken into account by the sentencing judge. I refer to that below.
The sentence hearing
The sentence hearing took place on 17 October 2025. The Crown Sentence Summary became Exhibit A. It included a Statement of Agreed Facts which may be summarised as follows.
On or about 14 April 2021, a co-offender MS organised for a supply of 2 kilograms of cocaine to another drug dealer referred to as "Person A". Person A took the 2 kilograms of cocaine and handed over a block of paper of $50 notes on one end and otherwise contained blank paper instead of $660,000. MS held Stuart MacGill ("the victim") responsible for Person A's theft of the drugs because he had introduced MS to Person A. On 14 April 2021, MS met with the victim telling him that the victim needed to pay money to cover the theft or provide information as to the whereabouts of Person A. The victim denied responsibility for the debt left by Person A's theft.
The conduct constituting the two offences commenced at 5:50 p.m. on 14 April 2021 when a co-offender, Frederick Schaaf was tasked to drive from his home in the Sutherland area to Cremorne with the intention of intimidating the victim into providing money or information about the whereabouts of Person A. Another co-offender Richard Schaaf joined Frederick, and they left Caringbah arriving at Cremorne just before 7 p.m.
At about 6:24 p.m. the offender went to Bunnings at Rouse Hill and purchased a pair of long handled garden shears, three sets of gloves, cable ties and rope. The garden shears were later found in Frederick Schaaf's car. The offender then travelled from Rouse Hill to Bringelly arriving there at 7:20 p.m.
Throughout the afternoon and after the second meeting with the victim, MS waited outside the victim's apartment building in Cremorne in his car. At about 7:00 p.m. the victim escaped his apartment in the boot of another resident's car, met with friends and went to a friend's house nearby. The victim was then lured back to his apartment by MS just before 8:00 p.m. under the guise of looking at photographs to identify Person A. The victim met MS on a street close by his home and MS took his phone and said, "The big guys are here to see you". The victim kept walking towards his home and came across the co-offender Richard Schaaf who was standing in the street outside of a car. The co-offender Richard Schaaf said to the victim, "I don't want to hurt you, we know you have nothing to do with it, we just want to talk to you, get in the car". The victim resisted and the co-offender said, "Don't make it difficult" and placed his hand on his own waist.
It is an agreed fact that the victim got in the car because he thought that gesture meant that the co-offender had a firearm. The victim did not see a firearm, nor did he communicate his belief to either co-offenders and the Crown does not contend that the co-offender intended to imply possession of a firearm. Nor does the Crown contend that either co-offender had a firearm. Nor does the Crown contend that either co-offender actually knew or were reckless to the victim's lack of consent to enter the car.
The victim got in the car and the co-offender Richard Schaaf sat next to him. The co-offender Richard Schaaf said, "We've got a problem because they (a reference to the drugs) were mine". However it is not contended that co-offender was actually involved in the failed cocaine deal or that the drugs in fact belonged to the offender.
The victim told the co-offender Richard Schaaf that the drug deal had nothing to do with him. The co-offender asked the victim about the whereabouts of Person A and the victim told him that he had been trying to contact Person A all day without success.
The co-offender Frederick Schaaf drove the car from Cremorne to Bringelly arriving at about 9:00 p.m. The car pulled over and the offender got in the car with a bag containing the garden shears. The offender was wearing a balaclava and sat in the front passenger seat. It is an agreed fact that the intimidation commenced at the time the offender entered the car.
The car was driven to premises at Bringelly, being an unoccupied house with a driveway which led to a shed. When they arrived the offender and co-offenders got out of the car leaving the victim in the car for about 10 minutes. The victim was then told to go to the shed, photos of which are contained in Exhibit A. The co-offenders demanded proof that the victim was not wearing "a wire" and all three of them searched the victim which caused him to be intimidated.
The garden shears were placed on the floor near the victim, and the co-offender Richard Schaaf slapped the victim across the face causing him to fall down. The co-offender asked the victim again about the whereabouts of Person A and was told that he didn't know where he was. The co-offender Richard Schaaf then said, "They want me to take your fingers" and said “they” needed $150,000 and asked where he would get it from and how long it would take. The co-offender then asked for the victim's phone which was provided.
The offender and co-offender Richard Schaaf punched the victim multiple times in the head. In this assault the victim suffered a cut lip. The co-offender Richard Schaaf said it was enough, and the co-offender Frederick Schaaf then asked the victim, "Are you ok?", and handed back to the victim his glasses which had fallen off.
The co-offenders and victim then returned to the car and Frederick Schaaf drove to Belmore arriving at 10:30 p.m. The co-offender Richard Schaaf then had a conversation with the victim by the side of the road telling him that someone would provide a phone to him the following morning and that he should not leave home. The victim then took a taxi back to his home and the next day told his partner what had happened. The matter was reported by way of formal report to police on 20 April 2021.
Exhibit A included the offender’s NSW Police Force record of convictions. On 6 December 2024, the offender was sentenced by Judge Grant of this Court having been found guilty after a trial by jury of an offence of detain with intent to obtain advantage (ransom) contrary to s86(1)(a) of the CA and an offence of tamper with evidence with intent to mislead a judicial tribunal pursuant to s317(a) of the CA. The offender had also pleaded guilty to one count of damage property by means of fire pursuant to s195(1)(A)(b) CA. He was sentenced by way of aggregate sentence to 3 years imprisonment to be served by way of an Intensive Correction Order (“ICO”) commencing 6 December 2024 and concluding 5 December 2027. Those offences occurred on 1 June 2021.
Exhibit A also included the sentencing remarks by Judge Grant and a report from Dr Adam Martin, forensic psychiatrist dated 29 October 2024 which was obtained as a response to a psychological report prepared by Dr Kim Dilati, psychologist dated 30 August 2024 prepared on behalf of the offender. Exhibit A also included the custodial history and bail chronology relating to the offender.
The offender’s evidence
The offender relied on a bundle of evidence which became Exhibit 1.1 to 1.7. Exhibit 1.1 was a letter of apology from the offender in which he stated that the history contained in an updated report from Dr Dilati, psychologist dated 9 September 2025 was accurate, true and correct. He set out his family and relationship history together with his employment, i.e. his apprenticeship as a carpenter.
The offender stated that his offending has brought great shame on his family and that he has become a burden on them. He described his time in remand custody as extremely difficult and expressed that he was deeply sorry to the victim and sorry to his family.
The offender has stated that he has complied with his supervision pursuant to the ICO to which he was sentenced in December 2024 and that supervision was suspended after 8 weeks, given his compliance with the community service condition.
The offender also stated that he has commenced an online clothing business with two friends from high school which is on hold pending his sentence for the index offending. He has the support of his family and intends to repay them by not ever reoffending.
Exhibit 1.2 is the report of Dr Dilati, psychologist dated 30 August 2024 which I do not intend to rehearse, as it was dealt with in detail by Judge Grant when sentencing the offender in December 2024.
Exhibit 1.3 is a further report from Dr Dilati dated 7 October 2025. He was assessed via telehealth on 23 August 2025 and Dr Dilati confirmed that the treatment recommendations outlined in her initial report remain unchanged. In her report Dr Dilati outlined the offender’s family history. As a child he was exposed to domestic violence in a home environment filled with anger and conflict. He also reported difficulties with learning, focus, attention and social interactions during his developmental years. His behaviour in school was disruptive leading to suspensions and truancy and in his teenage years he gravitated towards anti-social peers.
The offender left school during year 10 without completing his school certificate. He had worked in several short term jobs in which he had developed basic skills but expressed a desire to complete an apprenticeship following his sentencing to further a career in the construction industry. The psychologist also referred to his online clothing business but stated that it remains in its developmental stage and is not generating an income.
Dr Dilati took a long-standing history of substance abuse beginning with regular cannabis and cocaine consumption from the age of 13. She noted that he has reportedly abstained from all drug and alcohol abuse since his last psychological assessment in 2024.
The author noted under the heading “Psychological history”, a long-standing history of “poor impulse control, limited consequential thinking, anger management difficulties, and avoidant behaviours. He also described enduring depressive symptoms, including suicidal ideation, difficulties with concentration and focus, sleep disturbance, appetite changes, emotional reactivity, impatience, and recurrent nightmares involving his grandmother for several years.”
Dr Dilati stated he reported further symptoms consistent with Post-Traumatic Stress Disorder (PTSD) and alluded to a history of auditory hallucinations and paranoia. However he had not engaged in psychological therapy and had not followed the recommended treatment regime.
Following assessment Dr Dilati suggested that the offender is expressing significant psychological distress, including high levels of anxiety, depression and paranoia. She opined:-
“There are also indications of possible psychotic symptoms, emotional instability, and a predisposition towards aggressive behaviour. The elevated Negative Impression Management Score suggests the possibility of exaggerating symptoms or presenting in an especially negative manner, which should be considered when interpreting the results.”
Dr Dilati opined that the offender’s overall risk of future interpersonal violence remains assessed as high, with a moderate/imminent high-risk of serious physical harm. Protective elements most relevant to reducing the offender’s risk of violence include stable accommodation, meaningful activity, improved self-control, pro-social pursuits and effective financial management as well as motivation to engage in treatment and the establishment of pro-social networks.
Dr Dilati opined that the offender currently meets the criteria for Dysthymic Disorder, PTSD, anti-social personality disorder, cannabis use disorder in remission and stimulus use disorder in remission. She opined that the offender was expressing significant mental health difficulties at the time of the offending and her previous diagnosis of major depressive disorder remained clinically relevant as he continues to report chronic low mood, diminution of motivation and trauma related symptoms.
Dr Dilati stated that the offender’s account of his offending reflected limited insight into the offending, and he was unable to clearly articulate his motivations or involvement, other than being under financial pressure at the time. She opined there was a nexus between his mental health and offending given his history of persistent depressive symptoms and PTSD, which likely impaired his ability to regulate emotions, tolerate distress and make considered decisions. She stated:-
“At a cognitive and emotional level, Mr Feilo demonstrates poor consequential thinking, impaired impulse control, and limited insight into his offending. His remorse has been expressed vaguely, and he minimises the role of his mental health difficulties in contributing to his behaviour.”
She described a number of cultural aspects to his behaviour relating to his Samoan culture.
Under the heading “Prospects for rehabilitation”, Dr Dilati opined that his prospects are “mixed and depend on several factors, including his willingness to engage in treatment, the availability of appropriate therapeutic resources, and his sustained motivation for change”. She further opined that his progress was hindered by limited insight into his difficulties and lack of engagement with recommended treatment.
Dr Dilati concluded by assessing the offender “as presenting with a high-risk of further offending, given the combination of unresolved trauma, chronic depressive symptoms, anti-social traits, and a history of substance misuse”. She annexed a recommended treatment plan which was consistent with his last psychological assessment in August 2024.
Exhibit 1.4 was an affidavit sworn by Mrs F Feilo, the mother of the offender on 3 October 2025. She set out the family history, the offender being the middle of five children. She also deposed as to the extensive impact on her and her family as a result of the offender’s criminal conduct which included the family being forced to sell their house to support the offender.
Mrs Feilo deposed that the offender now has displayed insight into his offending by apologising many times for the pain he has brought to his family. She deposed that he has matured since his arrest and subsequence release to bail and expressed her honest belief that he will not reoffend.
Exhibit 1.5 is a letter from the offender’s partner, Ms D Karauzumcu. She described the offender as having “always been a solid and honest person” who she found trustworthy and honest. She described the offender further as a caring person who has empathy and was respectful for everybody. She expressed her belief that he was now a completely different person and in the considerable time that has passed since his arrest he has grown and matured.
Exhibit 1.6 is a letter from Mr D Banaba, who has known the offender for over a decade and who is a co-founder of the online clothing business referred to above. Mr Banaba states that the offender is genuinely remorseful for his actions and is highly unlikely to reoffend. He further states that the offender has many admirable qualities, is deeply devoted to his family, ambitious, reliable and committed. Mr Banaba expressed his belief that the offending was influenced in part by negative influences at the time and anti-social associations.
Exhibit 1.7 is a letter from Mr M Sopi who has known the offender for 12 years and is also a co-founder of the online clothing business. He describes the offender as one of the most loyal, reliable, creative and protective people he has known. He stated his belief that the offender is very much remorseful and apologetic for the crimes that he has committed. He further expressed a strong belief that the offences were committed at a vulnerable time of the offender’s life, and he is now very regretful for his offending.
The Crown submissions
The Crown relied on a written and detailed outline of submissions setting out the procedural history and noting that the offender is entitled to a 5% discount for both Counts 1 and 2 pursuant to s25D(2) of the CSPA.
The Crown noted that the offender was arrested, and bail refused on 28 June 2021. At that time he was already bail refused in relation to other offending (Sequence H81363954). The offender was granted conditional bail on 17 December 2021 after spending 173 days in pre-trial sentence custody. He was bail refused in relation to the other offending for the entirety of that period. When sentenced for that other offending by Judge Grant, the whole of the pre-sentence custody was taken into account. The Crown therefore submitted that this period on remand was only partially referable to the sentence to be imposed for the index offences.
The Crown submitted that in assessing the objective seriousness of the offending where there is a joint-criminal enterprise the Court must assess the degree of participation of the offender. The Crown referred to Somba v R [2012] NSWCCA 214 where Hall J had held that it was necessary to refer to and take into account particular conduct of each participant in a joint-criminal enterprise with a view to determine the level of culpability for which each must be sentenced. The Crown referred to the judgment of Latham J in KR v R [2012] NSWCCA 32 with respect to the distinction between the offender's responsibility for criminal conduct and his moral culpability for the offending.
The Crown submitted the following features were relevant to the assessment of objective seriousness of the offences:-
(a)The offences were not spontaneous and involved a significant degree of planning and organisation, as evidenced by:
(i)The surveillance of the victim by co-accused MS and attendance at his personal residence by Frederick Schaaf and Richard Schaaf.
(ii)The use of a ruse to lure the victim back to his home where Richard Schaaf and Frederick Schaaf were waiting.
(iii)The purchase by the offender of items for use or possible use in the offending, namely a pair of long handled garden shears, three sets of gloves, cable ties and rope.
(iv)The victim’s phone was taken by MS from him to isolate him and prevent him from calling for help.
(v)Prior arrangements had been made for Frederick Schaaf and Richard Schaaf to pick up the offender in Bringelly, and on the way to Robinson Road, Bringelly.
(vi)The offender was wearing a balaclava when he entered the car.
(vii)The victim was transported to an isolated and semi-rural property, approximately 70kms from his home.
(b)Regarding the intimidation:
(i)The victim was in the presence of three unknown males, without means of escape or contacting police or other parties for assistance.
(ii)The victim was taken to an unoccupied property and directed to go with the offenders to an isolated and dilapidated shed type structure.
(iii)On entering the shed, the offenders demanded proof the victim was not wearing a wire and searched him. This caused him to be intimidated.
(iv)The offender put the garden shears on the floor near the victim.
(c)Regarding the AOABH:
(i)Extent and nature of the injuries:
The victim suffered a cut lip as a result of the assault.
(ii)Degree of violence:
Richard Schaaf commenced the conduct comprising the assault by slapping the victim across the face and causing him to fall down.
Richard Schaaf and the offender punched the victim multiple times to the head. The assault ended when Richard Schaaf said words to the effect that “That’s enough”.
(iii)Intention of the offenders:
The offenders intentionally caused harm to the victim. The offenders were motivated by obtaining information as to the location of Person A, or $150,000 from the victim.
The Crown submitted that the offender played a lesser role than the co-offender Richard Schaaf but a role that was still significant. Having regard to the following:-
(a)The offender attended Bunnings with another person for the purchase of the long handled garden shears, three sets of gloves, cable ties and rope.
(b)The offender travelled to Bringelly to participate in the subsequent criminal conduct. The offender brought the garden shears with him and placed these on the floor near the victim in the shed.
(c)The offender with Richard Schaaf, punched the victim multiple times to the head.
Further all the co-offenders participated in the search of the victim to ensure that he was not wearing a listening device.
The Crown submitted that it was an aggravating factor pursuant to s21A(2)(c) of the CSPA that the offence involved the threatened use of a weapon, namely the garden shears.
The Crown conceded that a mitigating factor pursuant to s21A(3)(e) was that the offender had no record of prior convictions.
With respect to the offender’s subjective matters, the Crown acknowledged the content of the report of Dr Dilati dated 23 August 2025 and the application of the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. The Crown referred to the offender’s difficult childhood in a “home environment filled with anger and conflict” where he was subjected to domestic violence and exposed to his father’s alcohol abuse and gambling problems. In addition when he was in year 9 at school, his best friend committed suicide. The Crown noted the offender’s long-standing history of substance abuse that commenced with regular cannabis and cocaine abuse at age 13, together with alcohol abuse.
The Crown noted the previous divergence of expert opinion between Dr Dilati and Dr Martin for the Crown in the offender’s previous sentencing by Judge Grant. The Crown submitted that the index offending was of the “planned, instrumental and protracted behaviour” type opined by Dr Martin as being inconsistent with a mood disorder or PTSD. The Crown submitted that the violence directed towards the victim in this matter was not of a reactive type suggested by Dr Martin as being more associated with mental illness of the type suffered by the offender. Therefore the Crown submitted that any reduction in the offender’s moral culpability as a result of his mental health conditions should be limited. The Crown did accept that any further time in custody will weigh more heavily on this offender as a result of his mental health conditions. The Crown also accepted that the Bugmy principles have been enlivened, and full weight should be given to the offender’s deprived background in determining the appropriate sentence.
The Crown noted that the offender was 23 years of age and therefore rehabilitation remains a significant purpose of sentence. The Crown noted that the offender had not engaged in the treatment plan ordered by the Court in his previous sentence, however he had not re-offended in 4 years and has significant familial support. As the offender was 19 years of age at the time of the offending, his youth was a significant matter to take into account, referring to TH v R [2025] NSWCCA 121 at [94] and KT v R [2008] NSWCCA 51 at [26].
The Crown submitted that both general deterrence and specific deterrence are important in sentencing for the index offences so as to ensure that the purposes of sentencing set out in s3A of the CSPA are met.
In the case of this offender, the Crown submitted that the threshold in s5 of the CSPA had been met and that no penalty other than imprisonment was appropriate.
In his oral submissions, the Crown rehearsed his submissions concerning the role of the offender and the need for a focus on rehabilitation in the sentencing of a youthful offender. The Crown further rehearsed his submissions regarding the mental health issues suffered by this offender. The Crown noted that the offender had expressed his willingness and ability to undertake intervention to support his abstinence from substances as set out the in SAR, however he had not yet participated in formal treatment. In the SAR under the heading “Insight into impact of offending”, the author had noted that the offender had failed to acknowledge the impact on the victim, maintaining that he was not involved in the offence. This demonstrated a lack of remorse and disentitled him to leniency.
The offender’s submissions
Counsel for the offender also relied on a thorough and detailed written outline of submissions setting out the procedural history and summarising the agreed facts. They demonstrated that the offender did not participate in the background to the offences in any way. It was submitted that “contextually, the victim had participated in the supply of prohibited drugs. Self-evidently, the offender’s role was to participate in the intimidation of the victim with a view to ascertaining the whereabouts of Person A”. It was submitted that there was no evidence that the offender took part in any of the planning to take the victim to Bringelly and that his participation occurred over the course of about 1 hour and 30 minutes. The objective seriousness of the offending in Count 1 was below mid-range and the duration of the assault in Count 2 was short and the injury sustained was relatively minor. The objective seriousness of that offence fell below the mid-range.
Under the heading “Antecedents”, counsel noted that the offender had no prior convictions at the time of this offending, however on 1 June 2021 he was charged with offences relating to the detention of another person and was sentenced on 6 December 2024 following a trial before Judge Grant to an aggregate sentence of imprisonment for 3 years to be served by way of an ICO. In light of that sentence which the offender is currently serving, the application of the totality principle is an important consideration.
Relying on the report of Dr Dilati dated 30 August 2024, the offender who was 19 years of age at the time of offending and is now 23 years of age, had clearly suffered a childhood characterised by significant adversity having been exposed to domestic violence and alcohol abuse by his father and other members of his family. He had a history of substance and alcohol abuse from 13 years of age.
Counsel referred to the opinion of Dr Dilati in her report dated 7 October 2025 that the offender was experiencing significant mental health difficulties at the time of the offending. The nexus between the offender’s persistent depressive symptoms and PTSD and the offending behaviour was submitted to be an impairment of “his ability to regulate emotions, tolerate distress and make considered decisions”. Dr Dilati further opined that it was a combination of his PTSD and depression together with a personality disorder characterised by anti-social traits, and long-standing substance abuse which compounded his vulnerabilities and had increased the likelihood of his re-offending. Thus, the offender’s background and youth were important factors to be considered in the sentencing synthesis.
Counsel referred to the well known principles of sentencing young persons as summarised in KT v R [2008] NSWCCA 51. It was submitted that the gravity of the offence, by itself, demonstrated “adult-like” behaviour but assessment must be one of maturity and conduct, not only the degree of violence.
Counsel submitted that the offender’s participation in the planning for the offence was limited and that he was involved for a relatively short period of time, his role ostensibly was to assist the co-offenders. Beyond that, he had no interest in the underlying dispute and gained nothing from his participation. Having regard to the offender’s youth, considerations of general deterrence and retribution should be subordinate to promoting the offender’s rehabilitation.
Counsel submitted that the Court would accept the offender’s letter of apology as expressing genuine remorse for his offending. Notwithstanding Dr Dilati’s opinion that he presented a high risk of further offending, the offender was charged over 4 years ago during which time he has not been charged with any further offences and has complied faithfully with strict bail conditions throughout the 3 years. His relationship with his family has improved and he is in a stable relationship and has committed himself to operating a business. It was therefore submitted the offender has good prospects of rehabilitation.
Counsel referred to the sentence imposed by Judge Grant to submit that the offender has already served a substantial period of imprisonment for offences closely related in time and character to these offences. His youth and the need to give weight to the progress of his rehabilitation call for a measure of understanding and flexibility of approach. It was submitted that applying principles of totality, had the offender been sentenced for the current matter at the same time, it is unlikely the offender would have received a sentence of full-time imprisonment.
Counsel submitted that a Community Correction Order (“CCO”) was an appropriate penalty given the offender had no prior convictions and the objective seriousness fell below the mid-range. The Bugmy principles should be given full effect and his 200 days in custody should be taken into account as well as the fact that the offender was 19 years of age at the time, and a community based order recognises his youth and promotes his rehabilitation. The offender had demonstrated progress towards rehabilitation through his good behaviour, compliance with strict bail conditions and compliance with an ICO.
In his oral submissions, counsel rehearsed his submissions regarding the assessment of objective seriousness and the absence of evidence concerning planning to any significant extent in this offender’s role. Counsel rehearsed his submissions regarding the role of the offender here and the short period of time the offending. Whilst the injuries suffered by the victim were not trivial, they were relatively minor.
Counsel rehearsed his submissions regarding the significant subjective factors to be taken into account, particularly the offender’s youth, his lack of previous convictions and his deprived and disadvantaged background and mental health issues. Whilst any nexus between the offender’s mental health and his offending was in dispute, the Court would conclude that his mental health did contribute in a material way to his offending thereby reducing his moral culpability for it. The Court may rely on the evidence of Dr Dilati in her report dated 7 October 2025 to establish the relevant nexus. Counsel submitted that the offender’s mental health was inextricably linked to his offending conduct thereby reducing significantly his moral culpability. The SAR demonstrated that the offender had insight into his offending conduct and his prospects for rehabilitation. Counsel referred to Alseedi v R [2009] NSWCCA 185 at [65] to submit there could be rehabilitation without confession. This was approved in Ali v R [2010] NSWCCA 35 at [48].
Counsel rehearsed his submissions regarding the very lengthy period since the offending during which the offender has been of good behaviour and abstinent from prohibited drugs. Since December 2024 he had been compliant with his ICO and had a positive response to supervision.
Counsel rehearsed his submission that had he been sentenced for the index offences at the time Judge Grant sentenced him for subsequent offences it was most unlikely that a different penalty would have been imposed. These offences were much less serious than those offences and the offender had spent 5 months and 20 days in custody referrable to both matters.
Counsel submitted the offender had significant subjective factors which could be differentiated from his co-offenders, namely his age, absence of prior offending, different role and differences in their subjective cases. Given his mental health issues and youth, general deterrence and denunciation should be subordinate to this offender’s need for rehabilitation. Therefore it was submitted a CCO would meet the purposes of sentencing in s3A of the CSPA.
Determination
Section 3A of the CSPA sets out the purposes of sentencing as follows:-
"3A 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."
In assessing the objective seriousness of the offending in Count 1, I have had regard to the context in which the offending arose as a result of the rip-off of MS in the drug transaction with Person A and his motivation to obtain information from the victim as to the whereabouts of Person A or to extract money from the victim. Whilst there was clearly planning involved by which the two co-offenders were directed to drive to Cremorne and then to take the victim to Bringelly, there is no evidence that the offender was responsible for any planning. His role was to first attend Bunnings to obtain the items which included the long-handle garden shears, to travel to Bringelly where he was subsequently picked up the co-offenders and entered the vehicle wearing a balaclava, and then at the shed placed the garden shears on the floor near the victim, and was involved with the other co-offenders in the search to ensure that the victim was not wearing a wire. I find that his role was lesser than the co-offender Richard Schaaf but still constituted serious offending in the upper part of the low range for an offence pursuant to s13(1) of the CDPVA.
In assessing the objective seriousness of the offence in Count 2 I find that the offender, with the co-offender Richard Schaaf, punched the victim to the head multiple times and the victim suffered a cut to his lip. The offending stopped when Richard Schaaf said words to the effect of “That’s enough”. For an offence pursuant to s59(2) of the CA the objective seriousness fell in the middle of the low range for such an offence.
It was an aggravating factor that the offending involved the threatened use of a weapon, namely garden shears, pursuant to s21A(2)(c) of the CSPA. A mitigating factor pursuant to s21A(3)(e) was that the offender had no record of prior convictions.
I have taken into account the maximum penalties prescribed for an offence under s13(1) of CDPVA of 5 years imprisonment and/or $5,500 fine and the maximum penalty for an offence pursuant to s59(2) CA of 7 years imprisonment. The maximum penalties demonstrate the seriousness with which Parliament regards such criminal conduct and act as guideposts in the sentencing process.
General deterrence is important in sentencing for such offences. Like-minded members of the community must understand that Parliament has set relatively lengthy maximum penalties of imprisonment for the offences and that the Courts will impose condign punishment in appropriate cases. Specific deterrence is also relevant in that the offender must understand the serious consequences if he was to re-offend.
There are significant subjective factors to take into account on sentence here. The offender was 19 years of age at the time of the offending and is now 23 years. It is well established that immaturity may play a major role in youth crime even crime involving adult-like behaviour such as the present offending. In TH v R [2025] NSWCCA 121, Yehia J said at [92]-[93]:-
“Even in cases of serious offending, while the acts may resemble “adult like conduct”, one should not lose sight of the fact that where the offender is a child, neurodevelopment, emotional maturity, impulse control and consequential thinking is less advanced than it is in adults. The courts should not be “…over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult”: BP at [6] (Hodgson JA).
As I said in TM at [49]:
“The qualification to the principles concerning young persons where they conduct themselves in an “adult like manner” should be applied with some caution. While in some cases, significant planning, or other indicia of mature decision-making, may result in a diminution of the relevant principles, the gravity of an offence does not, by itself, demonstrate “adult like” behaviour. The assessment must be one of maturity and conduct, not only the degree of violence. Here, the applicant engaged in violent conduct resulting in serious injury to the victim. However, the conduct had all the hallmarks of youth, including immaturity, absence of impulse control, poor self-regulation, and a tendency to go along with the group. I agree with the sentencing judge’s remarks that the distinction between “adult like” and “non-adult like” behaviour was unhelpful in this case.”
In BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 Hodgson JA, having referred to KT v R, said as follows:
“4 First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person’s less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] – [36].
5 Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity, and that a ‘child offender’ of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.
6 Third, I do not think courts should be over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult. …”
All of the principles outlined apply here. The offending has all the hallmarks of youth, including immaturity, absence of impulse control, poor self-regulation and a tendency to go along with the group. This mitigates the offender’s moral culpability for his offending in a substantial way.
Another significant feature is the offender’s childhood of disadvantage in which he was subjected to domestic violence and exposed to his father’s alcohol abuse and gambling problems which gave rise to long-standing substance abuse that commenced at the age of 13. In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 the High Court held:
1. The circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his/her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way [40].
2. The effects of profound deprivation do not diminish over time and repeated offending and should be given full weight in determining the sentence in every case [42-44].
3. A background of that kind may leave a mark on a person throughout life and compromise a person’s capacity to mature and learn from experience [43].
The application of these principles, and their impact in diminishing the offender’s moral culpability for the offending and how that further impacts the purposes of sentencing set out in s3A of the CSPA was recently explained by Weinstein J (with whom Wright and Sweeney JJ agreed) in YZ v R [2025] NSWCCA 165 at [59] to [68]. The reduction in this offender’s moral culpability must therefore be given “full weight” in the sentencing synthesis (per Bugmy at [44]). It is clear that these principles should be given full effect in the sentencing of this young offender.
The divergence of expert opinion between Dr Dilati and Dr Martin was explained by Judge Grant in his sentencing of the offender on 6 December 2024 in respect of the following offences:-
(1)Offence of detain with intent to obtain advantage (ransom), contrary to s86(1)(a) of the CA (Count 2). This offence carried a maximum penalty of 14 years imprisonment.
(2)Tamper with evidence with intent to mislead judicial tribunal pursuant to s317(a) of the CA (Count 3). This offence carried a maximum penalty of 10 years imprisonment.
(3)An offence of damage property by means of fire pursuant to s195(1A)(b) (Count 4). This offence carried a maximum penalty of 11 years imprisonment.
The offender had been found guilty of Counts 2 and 3 following a trial in which Dr Dilati and Dr Martin gave evidence. The sentencing judge described Dr Dilati as “a compelling witness”. He was satisfied that the Bugmy principles were enlivened, and the offender’s moral culpability was thereby reduced with diminution of general and specific deterrence, denunciation and an emphasis on rehabilitation. The offender pleaded guilty to Count 4 and received a 5% utilitarian discount on sentence. His Honour also made a finding pursuant to s22A of the CSPA that the offender had facilitated the administration of justice by making appropriate concessions and narrowing issues in the trial.
I accept the opinion of Dr Dilati in her report dated 7 October 2025 that the offender was experiencing significant mental health difficulties at the time of the offending, namely persistent depressive symptoms and PTSD which led to an impairment of his ability to regulate his emotions, tolerate distress and make considered decisions. These mental health issues materially contributed to his offending conduct. In DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 McClellan CJ at CL set out at [177] the following principles to be applied when sentencing an offender suffering from a mental illness, intellectual handicap or other mental health problems as follows:-
"Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].
It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50-51; Israil at [22]; Pearson at [42]; Henry at [28].
It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].
It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].
Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]."
Notwithstanding Dr Dilati’s assessment that the offender was a high risk of re-offending, he has not re-offended since his release to bail. His prospects for rehabilitation must remain somewhat guarded and dependent upon his capacity to abstain from prohibited drugs.
Whilst the SAR indicates a lack of remorse by this offender, he has expressed some remorse and insight into his offending conduct, and I accept his counsel’s submission that there may be rehabilitation without confession, relying on Alseedi v R.
I reject, however his counsel’s submission that, applying principles of totality, had the offender been sentenced by Judge Grant at the same time of his sentence for subsequent offending, then a sentence of no more severity would have been imposed. Judge Grant imposed an aggregate sentence of 3 years, with indicative sentences as follows:-
(1)Count 2 – 30 months imprisonment
(2)Count 3 – 12 months imprisonment
(3)Count 4 – With the 5% discount and rounding down, 18 months imprisonment
(4)He then proceeded to order that the sentence be served in the community by way of an ICO. If the index offending had been included in that sentence it would have warranted accumulation on the sentence imposed given that this was separate and serious offending. Notwithstanding that, the principle of totality would have meant some telescoping of the eventual sentence imposed. I have therefore taken that into account.
I intend to impose an aggregate sentence pursuant to s53A of the CSPA. In doing so, I take into account the objective seriousness of the offending, the 5% utilitarian discount on sentence for each count, the need to give full effect to the principles in Bugmy, and the material contribution of the offender’s mental health issues which diminished his moral culpability for the offending thereby reducing emphasis on deterrence and denunciation as well as the offender’s youth which warrants a focus on his rehabilitation.
I am required to provide indicative sentences for the purposes of transparency in the sentencing process. The indicative sentences are:-
Count 1 – 1 year and 8 months imprisonment
Count 2 – 1 year and 4 months imprisonment
In arriving at an aggregate sentence I must have regard to the principles of proportionality and totality.
In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41, Howie J stated 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.”
Having regard to all of those matters, I intend to impose an aggregate sentence of 2 years and 4 months imprisonment.
I note that the offender was in custody for a period of 173 days until he was granted conditional bail on 17 December 2021. He was in custody for a period of 200 days when he was bail refused in relation to his subsequent offending and when sentenced by Judge Grant, the time spent in custody relating to the index offences was taken into account.
In considering whether to impose an order pursuant to s7(1) of the CSPA, that the sentence be served by way of an ICO, I must have regard to community safety as a paramount consideration pursuant to s66 of the CSPA. Notwithstanding that the offender was assessed as a high risk of reoffending, as outlined above, the offender has now progressed his rehabilitation and has not offended for a period of 4 years. Having regard to not only the purposes of sentencing in s3A of the CSPA, by virtue of the offender’s youth rehabilitation must be given some prominence, and I find on balance, his risk of reoffending will be best managed in the community rather than by way of a custodial sentence. In accordance with the Court of Criminal Appeal’s decision in Mandranis v R [2021] NSWCCA 97, I may take into account the offender’s remand custody, and applying principles of totality may take that into account notwithstanding that Judge Grant also took the whole period of remand custody into account on sentence. I am therefore persuaded that the offender should be sentenced by way of an ICO pursuant to s7(1) of the CSPA and that the term of that order, having regard to his pre-sentence custody, should be for a period of 21 months.
Orders
You are convicted of the following offences:-
Count 1 – Offence pursuant to s13(1) of the Crimes (Domestic and Personal) Violence Act 2007 (NSW) of stalk/intimidate intend fear physical etc harm.
Count 2 – Offence pursuant to s59(2) of the Crimes Act 1900 (NSW) of assault occasioning actual bodily harm in company of others.
I sentence you by way of an aggregate sentence pursuant to s53A of the CSPA to a term of imprisonment of 2 years and 4 months imprisonment. That sentence is to be served by way of an ICO for a term of 21 months to commence today pursuant to s7(1) of the CSPA.
(1)The standard conditions of the order apply:-
(a)You must not commit any offence; and
(b)You must submit to supervision by a Community Corrections officer.
(2)The following additional conditions apply:-
(a)That you perform community service work for 250 hours.
(3)I am satisfied pursuant to 17D(1)(a) of the CSPA that I have sufficient information before me to justify the making of the above Intensive Correction Order without obtaining an assessment report.
You must report to the Community Corrections Office at Windsor as soon as practicable but no later than 7 days from today.
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.
If the order is revoked, you may be required to a serve all or some of the period of your sentence in full-time custody.
Finally, you are now directed to attend the court registry where a copy of this order will be explained and given to you.
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