R v Jirjnazi

[2022] NSWDC 744

District Court

New South Wales

Medium Neutral Citation:

R v Jirjnazi [2022] NSWDC 744

Hearing dates:

14 December 2022

Decision date:

15 December 2022

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

1. The offender is convicted of the offence.

2. There being no other appropriate penalty, I impose a sentence of imprisonment for 2 years.

3. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the Court directs the sentence to be served by way of an Intensive Corrections Order commencing today.

4. The offender is to report to the OIC at the Bankstown office of CCS by 4 p.m. on Friday 16 December 2022.

5. The conditions to apply during the term of the order are as follows:

STANDARD CONDITIONS

a. You must not commit any offence.

b. The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance, and which should include.

• Continued engagement with his psychologist to address his risk factors and overall mental health stability, including anti-social attitudes and associates, as well as coping skills including working towards employment options.

• Referral to Youth off the Streets if he is struggling with housing and financial issues.

• Referral to the EQUIPS Foundation Program

• Participation in behavioural change interventions (PGI) exercises targeting self-awareness and pro social lifestyle.

c. Undertake rehabilitation or treatment program/s as directed by Community Corrections.

d. Abstain from the consumption of alcohol and illicit drugs/prescription drugs not prescribed for him.

Catchwords:

CRIMINAL – Sentence – aggravated break and enter & commit serious indictable offence, assault with intent to rob - offences committed in company with unknown co-offender – “the wrong house” – apology to victim acknowledgment, not remorse – “serious home invasion, premeditated and planned” – violence, two young children present – discount for plea – offences committed while on bail – cases – Henry guidelines - subjective matters

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

BP v R [2010] 201 A Crim R 379

Bugmy v The Queen [2013] HCA 37

Fernando [1992] 76 A Crim R

Pulitano v R [2010] NSWCCA 45

R v Groombridge (unreported 30/9/90 NSWCCA)

R v Henry [1999] 46 NSWLR 346

R v Pullen [2018] NSWCCA 264

R v Speeding [2001] NSWCCA 105

Category:

Sentence

Parties:

Rex
Jirjnazi, Abdullah

Representation:

Counsel:
Defence: Mr J Jiang

Solicitors:
Mr T Guazzo ODPP
Mr Z Hajjar Millennium Lawyers

File Number(s):

2021/00194261

JUDGMENT

1. HIS HONOUR: Abdullah Jirjnazi appears for sentence in respect of a single offence, being an offence of aggravated in company break, enter and commit serious indictable offence, assault with intent to rob armed with an offensive weapon contrary to s 112(2) of the Crimes Act 1900. The maximum penalty for such an offence is 20 years’ imprisonment and there is a relevant standard non parole period of five years’ imprisonment.

2. The offence was committed on 7 August 2020, and the offender was arrested on 7 July 2021 because of his DNA being located in the premises.

3. He was committed for trial from the Burwood Local Court on 22 December 2021, and he entered a plea of guilty on 2 August 2022 in the District Court when essentially the two charges then on the indictment were resolved by way of amalgamation, for want of a better term, and the plea of guilty was entered.

4. It is submitted on behalf of the offender that he is entitled to a 10% discount for the utility of the plea in those circumstances, and that is accepted by the prosecution. I will provide a discount of 10% as agreed to be appropriate by the parties.

5. The facts are agreed and are as follows:

Background

1. The offender Abdullah Jirjnazi, (DOB 10 June 2002), was slightly over 18 years of age at the time of the offence.

2. The complainant, Mrs Faraj, was 29 years of age and lived with her husband and three young children at premises in Amaroo Avenue, Georges Hall.

The complainant and the offender did not know each other at the time of the offence.

Count 1. Aggravated break and enter and commit serious indictable offence, namely assault with intent to rob armed with an offensive weapon.

3. At approximately 1.25pm on 7 August 2020, the complainant and two of her children were in the living room of their home when a grey Toyota HiLux, bearing number plates partially concealed with tape, reversed into their driveway. The offender and an unknown co-offender got out of the passenger side of the car. Both the offender and unknown co-offender were wearing dark clothing, including hooded jumpers with the hoods up. The offender was wearing dark gloves. The unknown co-offender had a black mask on his face.

4. The two men approached the complainant’s front door while a third unknown co-offender waited in the driver’s seat of the Toyota HiLux.

5. The complainant heard the offenders knocking on her door. She was not expecting any visitors but thought that it may have been workers from the NBN company to speak with her. The complainant opened the door slightly to see who was there and saw the offender standing extremely close to the door. The complainant felt afraid and tried to quickly close the door. The offender pushed back against the door, forcing it open and causing the complainant to fall to the floor.

6. The offender and the unknown co-offender entered the complainant’s home. The unknown co-offender closed the door. The complainant stood up and saw that her children were crying. The unknown co-offender who was holding a knife in one of his hands raised his hands and shoved the complainant backwards, causing her to sit down on a nearby stair. The complainant saw that the offender also had something in his hand but could not see what it was. The unknown co-offender pointed the knife at her and told her “Sit the fuck down and don’t move”. He also said, “Where is the tobacco, where are the white boxes, we saw them in the garage.”

7. The complainant said, “Take what you want, you have the wrong person, there is nothing here, my husband works in an office and has nothing to do with anything”. The complainant said, “What are you talking about, there is no man here, I’ve just got kids, I’m on my own.”

The offender reassured the complainant that they would not do anything to her children.

8. The unknown co-offender who was standing next to the internal garage door opened it, and the two offenders walked into the garage and looked around. After some time, the complainant, who had remained sitting on the stairs, heard one of the men say, “Oh fuck, it’s the wrong house, it’s next door”.

The complainant told the offenders that the house next door was also the wrong house, and that her neighbour had a two-year-old child and should be left alone.

The co-offender opened the front door of the home and walked outside. He yelled “Hurry up, let’s go” and ran to the door of the parked Ute before turning and waiting for the offender in the driveway.

9. The offender remained inside after his co-offender had left. He spoke with the complainant telling “Sorry sister, forgive me, we got the wrong house. I know it’s next door” before leaving the home.

10. The complainant followed the offender out of her house and watched as he walked away from the car towards her neighbour’s house. The offender walked onto the front steps of the neighbour’s house and was caught on CCTV footage holding an item in his left hand consistent with a sharp-looking object. While speaking with the complainant, who was standing on the front steps of her home, she offered to give him some money if they left. The offender refused to accept the money and again apologised to the victim.

11. After approximately 40 seconds, the offender walked back to the Ute, got into the front passenger seat and the offenders drove away.

Detection and Arrest

12. The offenders were captured on CCTV systems installed in neighbouring homes, parking, entering and after exiting the complainant’s home. The offender’s DNA was located on the interior door handle of the complainant’s front door. Forensic analysis determined that, assuming there are three contributors, it is greater than 100 billion times more likely to obtain this mixed profile if it originates from Abdullah Jirjnazi, Dunja Faraj and an unknown unrelated individual rather than if it originates from three unknown unrelated individuals in the Australian population.

The complainant also identified the offender in a photo board identification process conducted by police.

13. The offender was located by police on the morning of 7 July 2021 in Liverpool. He was arrested and denied participating in any home invasion and was taken to Liverpool Police Station where he declined to participate in an interview with police. The offender was remanded in custody until being granted Supreme Court bail on 2 September 2021.

6. His first period in custody was some 58 days. However, he was returned to custody on 27 December 2021 because of unrelated offending, but also because of this matter being outstanding. He remained in custody from 27 December 2021 until 2 February 2022, a period of 38 days.

7. The Crown accepts that there is accordingly a period of 96 days which should be considered in the determination of sentence.

8. What occurred on 7 August 2020, can be reasonably described as a serious home invasion in respect of which it can be reasonably interpreted from the facts that it was premeditated and planned, the motor vehicle having its numberplate obscured. The offender and co-offender entered the house wearing hoodies, the co-offender wearing a black mask, each were armed with something. The co-offender was specifically identified as carrying a knife which he presented at the female resident and the offender was seen to be carrying something sharp. Although the victim was unable to identify what it was that he was holding, the CCTV footage allowed it to be identified as being a sharp looking object held in his left hand while speaking with the complainant after he and the co-offender had exited the house and the complainant was then speaking to him from the front steps of her home.

9. Accordingly, the weapon that he had cannot be positively identified as a knife. I will simply express the opinion that from the description it is likely to have been something in the nature of a knife, or perhaps a tool such as a screwdriver, but no positive identification can be made, although in my view it makes no real difference. Both he and his co-offender were participating in a joint criminal enterprise, being armed with weapons, one of which was at least presented to the victim, and the other observed by the victim in circumstances where their interaction with the complainant involved violence towards her by the offender in gaining entry and pushing the door in such a fashion as to knock her over, and by the co-offender in using violence to push her back to sit on the stairs. This was done in the circumstances where there were two young children present who clearly became distressed at what they saw happening to their mother.

10. Once they had realised from checking the garage and the complainant’s statements that they had committed a home invasion on the wrong house, the offender said “Sorry sister, forgive me, we got the wrong house. I know it’s next door.”

11. It has been submitted on behalf of the offender by Mr Jiang of counsel that this should be taken into account as comforting the victim by apologising to her, and that it is an indication of his immediate remorse for his conduct. I do not in any way accept that submission. It is simply an acknowledgement in my view that they had entered the wrong premises and in circumstances where the facts reveal that although when they left, the co-offender went immediately to the motor vehicle, this offender went from the premises where the home invasion had occurred to the next-door house believed by them to be the appropriate house that they had intended to carry out the home invasion at. He went from the complainant’s home to the next-door house and walked onto the front steps of that house before departing approximately 40 seconds later, having been urged to leave by his partner.

12. In my view it is evident on the facts that the offender was at least up until that point endeavouring to continue with the object of the home invasion, that is to obtain what they believed was present, white boxes of tobacco and/or money.

13. Mr Jiang, on behalf of the offender, has submitted that the facts are consistent with the voluntary cessation of offending. I accept that the offending ceased, but it was only in the circumstances that they had realised that they had the wrong house, and as far as this offender is concerned it appeared that he did not cease the intention to offend until such time as he returned to the motor vehicle.

14. Mr Jiang has submitted that the offence was short lived, it no doubt did not occupy a great deal of time, perhaps only some minutes from the initial entry to departure, but that is hardly, in view of what occurred, a saving grace. Trauma was caused to the female resident and particularly to her young children then present, and apparently the stress caused by what happened to their mother was significant.

15. In this matter, the nature of the serious indictable offence committed was assault with intent to rob while armed with an offensive weapon, being in itself a most serious offence in the criminal calendar. The term “serious indictable offence” embraces a wide variety of criminality and the nature of the serious indictable offence committed in a particular case must reflect on the gravity of the offence. Serious indictable offences are any offences where it is punishable by imprisonment for life or a term of five years or more.

16. The serious indictable offence referred to here is one contrary to s 97(1) of the Crimes Act, which carries a maximum penalty of 20 years’ imprisonment, where the victim was the subject of an actual physical assault by each of the offenders who entered the house, as well as being accompanied by verbal threats rather than simply apprehending fear as referred to in Henry [1999] 46 NSWLR 346.

17. Accordingly, the reasons and rationale referred to in the Henry guideline judgment in relation to offences pursuant to s 97(1) of the Crimes Act are relevant to consider in respect of this matter. I note that the relevant factors referred to in that matter were:

1. A young offender with no or little criminal history.

2. Weapon like a knife capable of killing or inflicting serious injury.

3. Limited degree of planning.

4. Limited if any actual violence but a real threat thereof.

5. The victim in a vulnerable position such as a shopkeeper or taxi driver.

6. Small amount taken.

7. Plea of guilty, the significance of which is limited by a strong Crown case.

18. In this matter, nothing was taken; there was actual violence rather than simply a threat of it, and in my view, a female, being the mother of two young children present in her home, is a person in a vulnerable position.

19. At the time of entering the home, it was known to be occupied at least by the victim, even if the children were not physically observable from the front door.

20. There was as part of the joint criminal enterprise at least a knife and another sharp-looking object held by this offender.I will deal with his criminal history later, but I accept that it is limited. He was a young offender, being just over 18 years of age, and he had, to use the terminology of Henry, “little criminal history”, although as I will later refer to, he was in fact at the time the subject of bail in respect of an offence of an assault occasioning actual bodily harm in company of others, committed as a juvenile on 8 February 2020.

21. Bail is a privilege, and it is significant that the offender while on bail committed this further offence, being an offence of a far more significant character. This is a statutory aggravating circumstance pursuant of s 21A(2)(j) of the Crimes (Sentencing Procedure) Act.

22. As to the offender’s apology to the female victim, I note that in R v Speeding [2001] NSWCCA 105 at 24 Giles JA stated:

“When robbery is committed under the threat of a knife, I see no room for alleviating the seriousness of the offence and as part of that seriousness the possible traumatic effect on those threatened by the use of so-called reassuring words.”

23. In the circumstances, I would assess the matter as falling just above the mid-range of objective seriousness.

Subjective Matters

24. Before the Court is the offender’s criminal history, which I accept was at the time of the offending very limited. Since committing this offence, he has been fined on 3 December 2020 $500 in respect of possessing a prohibited drug, and on 5 May 2021 he was dealt with in relation to three offences, being supply prohibited drug, more than a small but less than an indictable quantity; deal with property the proceeds of crime, less than $100,000, and possess prohibited drug.

25. In relation to the first two of those offences, he received a Community Correction Order of two years, commencing on 5 May 2021 and expiring on 4 May 2023. In each case, the Community Correction Order was concurrent. In relation to the possess prohibited drug charge, he was dealt with by way of s 10A, being a conviction with no other penalty. He has no other criminal history.

26. As a result of his being returned to custody on 27 December 2021, after 38 days he was released on 2 February 2022. Since that time and to date, he has been subject to bail conditions which allowed him to attend medical appointments and work but would otherwise be very limited, and I accept that it is appropriate to refer to that period of approximately something in excess of ten months as being a term very close to what could be referred to as home detention.

27. Also before the Court is a bundle of materials, being some 131 pages originally supplied as material relied on. Added to that, on sentence yesterday is a further seven odd pages. I will not read onto the record the full content of that material, however of significance is a clinical psychological report of Ms Amanda Georges, dated 8 October 2022, a Westmead Children’s Hospital assessment report of 22 January 2009, a New South Wales Police Summary Report of Events; a number of documents from Community and Justice Assessment Consultation Reports, dated 13 May 2009, 2 September 2009, 22 September 2010 and 24 June 2011.

28. There are number of like reports from family counselling, Child Protection, Bankstown Community Services, all essentially tendered on the basis of putting before the Court the offender’s childhood circumstances.

29. There is also a Certificate III in carpentry although the certificate only relates to the fact that he had enrolled in such a course. There is a letter from Noah Omar of Eagle Eye Carpentry Group dated 27 July 2022.

30. I might interrupt myself here to ask Mr Hajjar, there appears to be a conflict. I had intended to raise this before I started this process but there appears to be a conflict between the content of the psychologist’s report which states at 4.9 on p 6 of 17 “Mr Jirjnazi has recently started working at a local Manoosh shop in Campbelltown, a Lebanese pizza shop. Mr Jirjnazi has plans to return to his carpentry apprenticeship.” I note the report was based on an assessment said to have occurred between 20 September 2022 and 6 October 2022

31. However, also provided in Exhibit J1 at p 127 is a reference from Noah Oman that I’ve just referred to, of Eagle Eye Carpentry Group, which is said to be a letter in regards to employment verification and that as of 27 July 2022 the offender was currently employed by him as a foreman, stating that his position required him to attend work from 7am until 3pm Monday to Friday full time and to be earning $300 a day assisting Mr Omar in job site operations for the construction of multiple single and double storey homes Sydney wide.

24. He also states that he has full time work prepared for him which has already commenced on 10 July 2022. Can you assist me, Mr Hajjar, as to how I make sense of those apparently conflicting facts?

HAJJAR: Your Honour, I believe I know the answer to that question, if I may just confirm that, but as a preliminary understanding the Manoosh shop work is weekend work and the carpentry work is Monday to Friday work, but I’ll confirm that, your Honour.

HIS HONOUR: Thank you.

HAJJAR: At one point he was residing in Campbelltown with his grandparents and doing work at the Manoosh shop on the weekends for some extra money.

HIS HONOUR: Right, and the other matter, Mr Hajjar, is the Sentence Assessment Report, which is dated 21 September 2022, which refers to him as currently being on Centrelink unemployment benefits in addition to sporadic casual labour work. That also appears to be to some extent inconsistent with the full-time work suggested by Eagle Eye Carpentry Group.

HAJJAR: Your Honour, as I understand it, with that letter of employment, he didn’t stay on with them on a full-time basis, he later on was working with his brother sporadically in that course and at the same time was obtaining Youth Allowance through Centrelink.

HIS HONOUR: Yes, right, thank you. I’ll accept that as an explanation for what appears to be contradictory material.

HAJJAR: Thank you, your Honour.

33. HIS HONOUR: Also included in Exhibit J1 is a letter from Dr Hussein, a letter from Christina Crouch of Octec Limited, dated 27 July 2022, and a letter from the offender’s father, Youssef Jirjnazi, dated 31 July 2022. The additional material supplied yesterday was a further letter from Dr Hussein, dated 20 May 2022, a letter from the Rehabilitation Project by Adam Ismael, dated 7 December 2022 and a copy of the bail conditions that I previously referred to.

34. In addition, the offender gave evidence on sentence, and subjective material is drawn from the combination of those materials that I have referred to, as well as a Sentence Assessment Report under the hand of Amanda Kellahan, dated 21 September 2022.

35. The offender is now 20 years of age. He was born in Australia in 2002 and has one older brother. His biological mother left the family home when he was a newborn, and he continues to be estranged from her. In his evidence on sentence, he indicated that he has endeavoured to locate his mother in recent times without success. His father was of Syrian background and an NBN technician. After his mother abandoned the family, his father returned to Syria and married a relative and returned with her to Australia to live with the family. There were two further children born of that relationship being half-sisters to this offender and now some 12 and 13 years of age.

36. His father and stepmother separated at some time after the birth of the two stepsisters. His father now resides in Queensland and in his letter to the Court he indicates his preparedness to support the offender in the future and stating that the offender has made major changes to his life since being released on bail and that the offender has been working in what is referred to as full time paid employment studying at TAFE and living independently. I have just dealt with the issue of employment, which would seem to have been somewhat different to what is suggested. As to studying at TAFE, I understand he has enrolled in Certificate III in carpentry. and has also sought to commence a TAFE course in youth work. I do not understand him to be in fact currently actually studying in either of those fields, although I may be wrong as to carpentry.

37. Of significance in relation to the material that has been provided, in the 131 plus pages, is that it appears - and I accept - that the offender had a significantly harsh life as a child. Both he and his brother were apparently the victims of physical, verbal and sexual assault from their stepmother. She is referred to as having tortured him when his father was working late. The physical torture of being beaten, grabbed by his feet and swung around like a helicopter, being burnt, including with hot foods and hyperextension, that is, being laid flat on his back and his stepmother lifting and stretching his legs to the point of significant pain. He suffered fractures, burns and scratches. There were also apparently periods of starvation, or when they asked for food, they were fed what he refers to as “cat shit” or “things from the toilet”. While he tried to inform his father of these matters, his stepmother would deny them whilst swearing on the Koran, as a result of which his father did not believe him but believed that the injuries were self-inflicted or accidental. There was also some degree of sexual molestation, including his stepmother punching or squeezing his penis. The report includes that when his brother informed his stepmother of the offender’s intention to run away from home, she broke his legs to prevent him from doing so.

38. It is evident from the Westmead Children’s Hospital assessment report and many of the Community and Justice assessment consultation reports that there is substance in the offender’s re-telling of what he says his stepmother inflicted on him at an early age.

39. It is also apparent from that material that he did not receive any assistance from his father except to the extent that his father would take him to obtain medical attention, at which time it is apparent that the offender was coached to give explanations for his injuries consistent with accident rather than being deliberate infliction of suffering by his stepmother. The result was that he was eventually placed in foster care together with his elder brother, it would seem at about the age of seven, and he spent at least some two years in foster care.

40. He was, no doubt because of how he had been treated, a somewhat difficult child, and he was accordingly passed between foster homes for a period of at least two to three years, and some five separate foster homes. As a result, partly of that, his education was marred by constant changes in school. He attended some five different foster homes, at least four primary schools, and at least four high schools.

41. At high school, he was suspended on a few occasions for having and selling weapons and fighting. He eventually left school prior to the completion of Year 10, and after that commenced a carpentry apprenticeship, which was unfortunately disrupted or terminated after two years due to COVID.

42. He has worked several other jobs such as three weeks with a firm called Labour Power, although he lost that job because he fell asleep on the job while picking up an early shift and believes his employment was terminated because he complained about being paid the incorrect amount - apparently a very common circumstance in our community in recent years.

43. He is now in a relationship which commenced after this offending and has been in place for approximately two years. That shows some stability in recent times.

44. As to his medical history, he has previously been prescribed Avanza for sleep and anxiety and PTSD. He is said by Dr Hussein to have a history of ankylosing spondylitis, asthma, anxiety disorder, depression, post-traumatic stress disorder, suicide attempts and self-harm due to his complex mental health issues relating to his childhood abuse, as well as drug addiction, borderline personality disorder, childhood assault and migraine.

45. The psychologist, Ms Georges, refers to the offender as having seen psychologists in the past, and at the time that she was consulted he was currently seeing Maysa Tiba on a fortnightly basis, she being a psychologist at the Life Guidance Clinic in Bankstown. There is however no report from Maysa Tiba before the Court.

46. Ms Georges conducted lengthy testing, and I will attempt to provide a short version, hopefully without doing injustice to it. The Paulhus Deception Scale test indicated that he was someone who may be providing accurate and insightful self-descriptions and was not trying to distort his responses either positively or negatively.

47. The Personality Assessment Screener indicated that he had a risk of experiencing clinical problems, potential for emotional and/or behavioural problems being substantially greater than is typical for community dwelling adults, and the results suggested that he was experiencing thoughts of suicide or death as well as which his responses indicated a marked potential for problems with acting out, and that he was very likely to be impulsive, sensation seeking and reckless and to have a disregard for convention and authority as well as a moderate potential for problems within the psychotic features domain.

48. There were suggestions of potential problems with persecutory or paranoid thinking, and possibly other psychotic phenomena. There was also moderate potential for problems or potential problems with depression, anxiety, personal distress, tension, worry and feeling demoralised as well as a mild potential for problems within the anger control domain, the item endorsement indicating that he may have a quick temper and may have potential to express anger and hostility readily.

49. He was said to display symptoms of both depression and anxiety at a moderately severe level, and to have moderately severe symptoms of generalised anxiety disorder, suggesting that the severity of his symptoms of PTSD reached a clinical cut off level which may need specialist treatment.

50. On intelligence testing, the Wechsler Adult Intelligence Scale, he was shown as average for verbal comprehension, perceptual reasoning, and working memory, but a low average processing speed, which gave an overall scale of average.

51. Testing did not indicate that he suffered from ADHD. His risk of recidivism was determined to be a “moderate risk” expressed as being approximately 48% chance of recidivism. She summarised the history as I have otherwise referred to as being evident from Exhibit J1 and the various reports, and she opined that the offender was the subject of significant neglect and abuse at home which led to him being vulnerable, and to his engaging in maladaptive behaviours as the only way of coping.

52. She referred to a significant history of adverse childhood experiences, and she concluded that he had experienced a significant prolonged trauma history starting at early childhood, including sexual abuse, neglect, verbal and physical abuse, periods of homelessness, being placed in foster care, exposure to drugs from a young age and education disruptions. He used emotional suppression avoidance behaviours (of thoughts, memories, situations and people) and distraction as a way of survival.

53. He reported severe and persistent problems with emotion regulation, diminished beliefs about self and difficulties in sustaining relationships or feeling close to others. Combined, these are considered facets of the diagnostic constellation of a Complex Post-Traumatic Stress Disorder for which he currently meets the requisite of severity. He also meets the criteria for Major Depressive Disorder and Generalised Anxiety Disorder, but these are likely secondary and subordinate to the Complex Post-Traumatic Stress Disorder which better explains the complexity of his presentation.

54. She otherwise surmises that the impact of his childhood may explain the disruption in normal brain development that would interfere with decision making, impulse control, depression, social anxiety, interpersonal problems, suicidal thoughts and helplessness, conduct problems and negative attributions.

55. I accept that the offender has had an appalling childhood and that as a result the principles referred to in Fernando [1992] 76 A Crim R and Bugmy v The Queen [2013] HCA 37 are applicable to this offender; that is that they reduce his moral culpability for the offending conduct and accordingly reduce to some extent the need for any sentence to reflect general deterrence.

56. I cannot find on the material before me that there is any specific causal relationship to the offending, although it is not difficult to understand in the light of his past history why he has fallen into offending. Indeed, in my view it is surprising that he did not have a far more adverse juvenile history.

57. Ms Georges indicates that the offender has expressed his regret and remorse and the offender has in his evidence on sentence also expressed regret and remorse for this conduct, and in my view, he is genuinely remorseful and contrite. His apology to the victim is of some assistance also in that regard, that is, to find in his favour that he is genuinely remorseful and contrite.

58. He has since being last released on bail, during the intervening period before appearing for sentence, endeavoured to seek help from psychologists and also from other sources in the community such as from the Rehabilitation Project, which I understand from material before the Court he has been attending on a weekly basis, and which he indicated in his evidence he had found to be of helpful assistance.

59. This matter has presented a very difficult question in respect of an appropriate sentence, considering the seriousness of the offence committed, and particularly what was found to be an appropriate range of sentencing in respect of offences contrary to s 97 in Henry. In this matter, the offender was at the time of the offence 18 years and two months of age. In my view, he was at that time still a very immature individual as a result of his difficult upbringing.

60. It has long been recognised that just because a person turns 18, they do not necessarily become fully mature or sensible: particularly in relation to males, it appears to be that does not necessarily happen until their early to mid-20s as recognised by Hodgson JA in BP v R and other cases.

61. Had the offence occurred a little more than two months before this offending, the offender would have been dealt with by giving primary consideration to assisting with rehabilitation, and where retribution is of less significance. It is of concern that after having committed this offence, the offender went on to commit other offences, including some after his arrest for this offence.

62. I note that those offences related to the supply of prohibited drug, possession of prohibited drug and dealing with property the proceeds of crime which occurred on the one occasion and resulted in two-year Community Correction orders and a fine in the Local Court, and so were substantially less significant than this offending.

63. It is unfortunate that many persons of this offender’s age believe that being involved with prohibited drugs and consuming them and perhaps supplying them to their colleagues as part of the process of obtaining them for themselves is not in reality a serious criminal offence, even if they understand that it is a criminal offence.

64. This offender in my view has made substantial efforts since being returned to bail to rehabilitate himself and reintegrate into the community, although no doubt facilitated to some extent by the terms of his bail. In R v Groombridge (unreported 30/9/90 NSWCCA) Wood J with whom Hunt and McInerney JJ agreed said at [8] to [9];

“Judges need to be astute to detect cases where, after a poor record, a turning point or watershed in the life of a young offender has been reached. There is a strong public interest in rehabilitation, both for the benefit of the community and the individual. That interest of rehabilitation may properly be taken into account in determining whether or not to impose a fixed term. Additionally, if a minimum and additional term are imposed, it may also be taken into account in relation to each leg of the sentencing process. The force of rehabilitation is not confined to the minimum term to the exclusion of the additional term or vice versa for the reasons explained in this Court in R v Moffett unreported, 21 June 1990 and R v Chee Beng Lian unreported, 28 June 1990.”

65. A recent amendment or addition to the Crimes (Sentencing Procedure) Act is s 66(2) which makes paramount the consideration of community safety once the determination has been found as to whether the offending crosses the s 5 threshold calling for a term of imprisonment. In this matter, both parties submit and accept that the s 5 threshold has indeed been crossed.

66. Mr Jiang on behalf of the offender has urged the Court to impose a sentence of not more than two years’ imprisonment, in which case, consideration can be given to having the sentence served by way of an Intensive Correction Order.

67. I have determined, but not without considerable difficulty, that a sentence of two years’ imprisonment in this matter is appropriate, particularly taking into account the 96 days of previous custody and the period that I have previously referred to of what was effectively home detention, in excess of ten months. If I was to impose a full-term sentence in excess of two years, it would have to be backdated to take account of those periods of pre-sentence custody and home detention. I have taken those periods into account in determining in respect of this offender that a sentence of two years is appropriate. Taking into account the 96 days in custody and the effective home detention in this way is consistent with the course accepted as appropriate in Pulitano v R [2010] NSWCCA 45.

68. I have then given consideration to whether that can be appropriately served by way of an Intensive Correction Order.

69. In R v Pullen [2018] NSWCCA 264 it was said at [84]

“In determining whether an ICO should be imposed, s 66(1) makes “community safety” the paramount consideration. The concept of “community safety” as it is used in the Act is broad. As s 66(2) makes plain, community safety is not achieved simply by incarcerating someone. It recognises that in many cases, incarceration may have the opposite effect. It requires the Court to consider whether an ICO or a full-time custodial sentence is more likely to address the offender’s risk of re-offending. The concept of community safety as it is used in the Act is therefore inextricably linked with considerations of rehabilitation. It is of course best achieved by positive behavioural change and the amendments recognise and give effect to the fact that, in most cases, this is more likely to occur with supervision and access to treatment programs in the community.”

70. At para 87, it was said;

“This is likely to occur most frequently in the case of a young offender with limited or no criminal history and excellent prospects of rehabilitation. In every case however, a balance must be struck, and appropriate weight must be given to all relevant factors which must be taken into account in arriving at the sentence by way of the instinctive synthesis discussed in Markarian v The Queen [2005] 228 CLR 357.”

71. I note Mr Jiang referred to the home detention or the bail conditions as being in effect extra curial punishment. I do not agree with that as being extra curial punishment, but it was certainly a relevant factor in determining the appropriate sentence, as I have already referred to. I will note in passing, as I do not regard it as of particularly great significance, that the periods that he was in custody were periods when Covid-19 was impacting on the community and also on the prison system, as the Court is very familiar with Covid-19 making custody harder than it might otherwise have been.

72. I have also taken into account, the 10% discount for the utility of the plea that I previously referred to, and I have taken into account all the other matters that I have referred to, without repeating them. Accordingly, the offender is convicted in relation to the offence contrary to s 112(2) of the Crimes Act. He is sentenced to a term of imprisonment of two years to be served by way of an Intensive Corrections Order commencing today pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999. The standard conditions are to apply.

71. The Sentence Assessment Report was done by way of remote assessment. Mr Crown, can I just order him to report to the officer who did the report? He is still under supervision because of the Community Service Order that’s been made otherwise.

GUAZZO: I understand that Bankstown would be the closest.

HIS HONOUR: He is to report to the Bankstown Community Corrections office by 4pm tomorrow. That can be achieved, Mr Hajjar?

HAJJAR: Yes, your Honour.

74. HIS HONOUR: The conditions to apply during the term of the order are that he must not commit any offence, and he is to be placed under the supervision and guidance of the Community Corrections Service for as long as that Service deems necessary or desirable, but not exceeding the term of the order, and he is to obey all reasonable directions of that Service including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis whilst under supervision and guidance.

75. As to the additional conditions, the offender is to abstain from the consumption of illicit drugs or prescription drugs not prescribed for him, and he is to undertake such rehabilitation or treatment programs as directed by Community Corrections, which I note from the Sentence Assessment Report should include continued engagement with his psychologist, and referral to Youth Off the Streets if he has problems with housing and financial issues and referral to the EQUIPS Foundation program as well as participation in behavioural change interventions targeting self-awareness and a pro-social lifestyle as indicated in the report of 21 September 2022.

76. I note that although I referred to the fact that there was a Sentence Assessment Report, I failed to refer to it to any significant degree in what I have previously said.

77. It was of some concern in reaching the decision that I have reached that the report indicated that while he knew that what he was doing was illegal, he normalised that activity by stating that it was normal amongst his then antisocial associates to conduct themselves in such a fashion and that it was of less seriousness because it was intended to carry out the crime against another male criminal, and that although he expressed understanding the seriousness of the offence, he claimed that he felt pressured to go through with the offence which he said was organised by his criminal associates. He otherwise described his participation as a result of being depressed, struggling financially and vulnerable to the influence of others.

78. I note that in the Sentence Assessment Report he indicated that he had been financially motivated to commit the offence and claimed that he was using cannabis and unprescribed prescription medication in the leadup to the offence to calm his nerves. However, at least he had insight into the offending describing his actions as disgusting, and repeatedly referenced that he was deeply upset about causing harm to the victim and often thought about apologising, and he recognised the traumatic impact his offending would have had on the victim. He was said to have been currently engaged with a psychologist and to be displaying a willingness to engage in intervention as directed. As to his then current supervision his responses are referred to as being “deemed satisfactory”. “He maintains regular contact with his officer and is willing to engage in relevant modules to discuss behaviour change.” The sentence assessment officer, like the psychologist, assessed him as being a medium risk of reoffending.

79. Having noted the reference to the use of cannabis and non-prescribed medications, I note that in the substance abuse history referred to by the psychologist he is said to have experimented with a range of substances from a young age including MDMA, cannabis and cocaine, also trying buprenorphine on one occasion and abusing prescription medications such as Xanax, Advil and Oxycodone, but to only drinking alcohol socially, although inconsistently with that, attributing his inability to become intoxicated to having a high tolerance to alcohol which is unlikely to occur in the absence of regular intoxication.

80. It is because of that content that I have included specifically the restriction that he is not to use prohibited drugs and/or prescription drugs not prescribed for him in the terms of the ICO. He has apparently done well during the period of his recent bail, but it is very easy to fall off the wagon, as it were, or to go off track. Any return to the use of prohibited drugs in my view is only likely to cause this offender to renew associations with persons who are criminally orientated, not just through the use of drugs but through the frequent necessity to be involved in criminal offending in order to obtain drugs either by committing offences to obtain money such as break, enter and steal or robbery but also by getting into the distribution of prohibited drugs in order to fund the addiction for use.

81. Mr Jirjnazi, you ought to regard yourself as having had an unusually good Christmas benefit but if you breach the Intensive Correction Order you will find yourself in gaol without any hesitation. You will not be brought back to this Court for me to impose that, it will simply be dealt with by Community Corrections and if you return to using prohibited drugs, I have no doubt that is what will happen. You will not get a Santa Claus result, your Christmas has passed, any further offending is going to result in full time custody even for relatively minor offences, obviously not a parking offence but for anything more serious than that, you will be in gaol and I want you to understand that because you have been dealt with in what I have found was an extremely difficult sentencing process, in a manner of leniency that I am not sure would be upheld in the Court of Criminal Appeal, so you really need to make sure that you do not do anything wrong from here on. Do you understand that?

OFFENDER: I understand it all.

HIS HONOUR: Right, you have the support, you are in a stable relationship, you have got stable accommodation, you have the prospect of work in those various areas, get back into your carpentry apprenticeship or take up the offer of the TAFE certificate in Youth Work but stay away from your past or any possible future criminal associates.

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Decision last updated: 15 June 2023