R v Lester

[2020] NSWDC 642

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Lester [2020] NSWDC 642

Hearing dates:

19 June 2020

Decision date:

19 June 2020

Jurisdiction:

Criminal

Before:

Norrish QC DCJ

Decision:

Sentenced to a term of imprisonment of 1 year 9 months to be served by way of an Intensive Correction Order with additional condition to perform 200 hours community service.

Catchwords:

CRIME – sentence – reckless wounding – unplanned offence – perceived threat – self-defence – standard non-parole period when no full time imprisonment imposed - no prior convictions – good character – Aboriginality - plea of guilty – good prospects of rehabilitation – COVID-19.

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v R [2013] HCA 37

DPP(Cth) v De La Rosa [2010] NSWCCA 194

Muldrock v R [2011] HCA 39; 244 CLR 120

Munda v Western Australia [2013] HCA 38

Parente v R (2017) NSWCCA 284

R v Engert (1995) 894 A Crim R

R v Zamagias [2002] NSWCCA 17

Way v R [2004] CCA 131

Category:

Sentence

Parties:

Regina (Crown)
Dwayne Christopher Lester (Offender)

Representation:

Solicitors:
Mr D Wilcox-Watson (DPP)
Mr J Hibbard (Offender)

File Number(s):

2019/00164359

Publication restriction:

No

Judgment

1. The prisoner Dwayne Christopher Lester appears for sentence in relation to an offence contrary to s 35(4) Crimes Act 1900. That is an offence of reckless wounding committed by him on 25 May 2019. The prisoner has been on bail since his arrest and was committed for sentence to this Court from the Nowra Local Court.

2. The crime to which he pleaded guilty carries a maximum sentence of seven years’ imprisonment. But it has a standard non‑parole period of three years which is of course relevant to the sentencing exercise in a range of ways.

3. The first way in which the standard non-parole period is relevant is by consideration of s 54A(2) Crimes (Sentencing Procedure) Act 1999, hereinafter to be referred to as “the Act”. That particular provision provides that the standard non-parole period represents the non‑parole period listed in the Table of the division taking into account only the objective factors affecting the relative seriousness of that offence, that is, an offence within the middle range of objective seriousness for offences of that type.

4. Section 54B(2) of the Act provides the standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence, including the non-parole period for that offender.

5. The current provisions of s 54A and 54B are provided in legislation as a consequence of the High Court judgment in 2011 in the decision of Muldrock v R [2011] HCA 39; 244 CLR 120, a decision in respect of the sentencing of a young mentally disabled offender in Lismore District Court by my former brother Black DCJ. The decision of the High Court set aside what had been the orthodoxy in relation to the consideration of standard non-parole periods reflected in decisions such as the CCA decision of Way v R [2004] NSWCCA 131. Subsequent to the High Court decision in Muldrock the legislature acted to clarify the situation.

6. Reading the provisions, one would think that where a standard non-parole period existed, there was thus a requirement in dealing with an offence with a standard non-parole period to fix a non-parole period. However, the scheme of the legislation makes clear that that is not so. For example, s 54C provides that:

“If the court imposes a non-custodial sentence for an offence set out in the Table to this Division, the court must make a record of its reasons for doing so. The court must identify in the record of its reasons each mitigating factor that it took into account.”

Of course the failure of the Court to comply with this section does not invalidate the sentence.

7. So it is quite clear by regard to s 54C of the Act that for offences that had standard non-parole periods, it is open to a court to fix a non-custodial sentence. I do not propose to fix a “non-custodial sentence” because I am persuaded, in fact it is conceded, that the s 5 threshold in relation to this particular offence in proper context has been crossed.

8. However, I have determined that the custodial sentence to be imposed should be one that by definition, that is, by being served by way of Intensive Correction Order, does not permit the fixing of a non-parole period.

9. Getting ahead of myself to some extent, the relevant mitigating factors to which s 54C refers in this particular matter in summary are as follows, and they are many. Firstly, there is a plea of guilty. Secondly, there are good prospects of rehabilitation. Thirdly, having regard to the criminal history of the prisoner, his age, the circumstances of the offending and his progress since his arrest, I consider on balance that the prisoner is unlikely to re-offend. Fourthly, and importantly, in assessing the objective facts this offending was “unplanned”. Further, the offender was clearly provoked. The Statement of Facts refers to the offender acting with excessive self-defence and I will come back to the facts in a moment, but clearly by reference to the mitigating factors under s 21A(3) of the Act he was provoked. Further, he has no significant prior convictions. In fact, notwithstanding a history of alcohol dependency I am relatively satisfied that he was a person of good character. He was a person at the time of the offending, for example, who was endeavouring to care for members of his family and he had no significant criminal history. In fact such findings of guilt as there are again are not only somewhat stale, but are very minor matters indeed.

10. Another relevant mitigating factor of the many that I can identify from the available evidence is that the prisoner has shown remorse by taking responsibility for his actions and acknowledging the injury that was done to the victim. The fact that he may not readily identify the victim as “a victim” is to my mind, in the context of the evidence of the prisoner and the reality of the situation, something of a semantic position.

11. The offending with which I am concerned, is in my view, well below the middle range of objective seriousness of offences of this type and to my mind that is clearly self-evident by reference to the facts of the matter which are agreed between the parties and in the context of the evidence given by the prisoner today in relation to the circumstances of the offending.

12. The Agreed Facts, without me drilling down to the preliminary detail, reflect upon the fact that the prisoner was living with a niece as a neighbour of the victim and members of his family or people with whom he was associated. Although my understanding of the matter was, the prisoner and the victim were living in public housing, and the primary tenants of the premises occupied by the victim at the relevant time were people known to the victim, but the residence was not a residence he had been at for any extended period of time. The facts state that prior to the commission of the offence in May of 2019 he had been living there for a few months and I understood that he moved out of the premises some time shortly after relevant events.

13. The victim had a dog which, apparently in the view of the prisoner and his family, had been ill-treated and poorly fed, and on at least one occasion the prisoner’s family looked after the dog. In fact it was intimated to the prisoner’s niece on the day of the assault that they could hang on to the dog on a permanent basis.

14. However, the victim who owned the dog, and who had legal rights in that regard, wanted to the dog back, and he went around and spoke to the prisoner. The prisoner gave an account of that conversation which he said made him feel unsafe and for which it is clear he resented that because of the anxiety it caused him. It was subsequent to that, that the prisoner went around the victim’s home to speak to him. I am satisfied with the account that the prisoner has given in relation to that matter. I thought the prisoner, in the context of what I would expect to be an inexperienced witness, was an impressive witness. The Crown was given fairly the opportunity to put to him what it suggested may be an alternative or other explanation for his conduct, bearing in mind he went round to the victim’s house armed with a knife. But I am satisfied that the prisoner did not go there to injure the victim or to scare him. He went there to confront him. He was fearful of the victim causing him harm. He took a knife with him in case he needed to defend himself, and as it turned out his fears were fully realised because the prisoner entered the premises of the victim, went over to speak to him in the lounge room. There was a “struggle” as it is referred to in the facts and the victim struck the prisoner in the lower abdomen with a knife. Neither man realised the other had a knife in his possession at the time of the struggle.

15. The facts state, if I may quote them, “in an act of excessive self‑defence”, the prisoner stabbed the victim in the chest area as the prisoner himself was moving backwards, that is, away from the victim towards the door. I am told the victim who obviously assaulted the prisoner on any view of these facts has not been charged with any offence.

16. The consequence of the victim being struck in the chest was that he required immediate treatment. I note in relation to the facts that members of the household in which the victim lived were told by the victim to,

“Quick, hide my blades”,

suggesting the presence of other weapons within the house. It is of some significance in the context of that statement by the victim that no weapon that was used by the victim to strike the prisoner has been found.

17. The victim’s wound to the chest included the following injuries; a penetrating wound to the left anterior chest extending through deep tissue into the chest cavity with pericardium palpable on wound exploration, a laceration above the right scapular extending into the chest cavity, a 2 centimetre laceration of the right upper arm triceps area and a penetrating wound to the left index fingertip. It seems on the facts available to me that those various injuries, including an open pneumothorax, were caused by the one blow. The victim was transferred to St George Hospital and received intensive care for a period of time.

18. The prisoner was taken to the Shoalhaven Hospital for what are described as “stab wounds” to his abdomen. He was spoken to in a bedside interview on 26 and 28 May and he provided what is described as “a detailed account of events” in those interviews, and he gave an account of the circumstances of the stabbing of the victim consistent with his plea of guilty, consistent with the evidence he gave in this Court and consistent with the Agreed Facts.

19. There is one aspect however of the version that he gave the police at the time he was interviewed that is of some relevance in explaining the circumstances of him taking offence to the threat made to him at his house by the victim before the incident in which both men were injured. He told the police that he “suffered from post‑traumatic stress disorder and anxiety” having been assaulted in his house previously. He has given evidence and spoken to the psychologist about those matters, and that he had become “extremely agitated and anxious” and he had walked over to the house with the express purpose of telling this person who had threatened him;

“Do not come anywhere near my property again”.

20. I do not believe that he had a state of mind that was consistent with, and certainly not on the facts of this case, an intention to threaten the victim or alternatively to cause him harm. It is important to note, in the context of the charge that the prisoner pleaded guilty to, that he was originally charged with a number of offences other than the offence to which he pleaded guilty. He was charged with entering a dwelling house with intent to commit a serious indictable offence therein, namely either assault or wound in circumstances of aggravation, namely that he was armed with an offensive weapon. He was charged with an offence of wounding with intent to cause grievous bodily harm, and he was further charged with an offence under s 111(2) of the Crimes Act of entering dwelling house with intent to commit a serious indictable offence, namely intimidation in circumstances of aggravation, namely that he knew that there was a person present within the said dwelling house.

21. The consideration of the facts of this particular charge requires consideration of the reality that had the prisoner had intentions to cause harm, had the prisoner had intention to cause the very injury or an injury similar to that suffered by the victim, then he could be charged with more serious offending, particularly the crime of wounding with intent to cause grievous bodily harm.

22. The prisoner’s plea to the charge was entered at the first reasonable opportunity which entitles him to a discount of 25% upon the otherwise appropriate sentence for the offence to which he pleaded guilty.

23. So by reference to the facts as I have summarised them and by regard to what I have concluded are the mitigating factors, two significant mitigating factors going to the assessment of the objective facts, one can see that this is a highly unusual case.

24. The Crown was correct to draw my attention to the seriousness of the injuries suffered by the victim. It is not an irrelevant consideration even if they were an unintended consequence of the prisoner’s own conduct. But the circumstances of the injuries suffered by the victim have to be seen in the absence of an intention to cause injuries of that type or even to cause serious bodily harm. They have to be seen of course in the consequence of two compelling facts; one is, the victim stabbed him in the abdomen first and at the time of the injury to the chest of the victim the prisoner was retreating. The facts clearly acknowledge the “excessive self-defence”, but the provocation and the self-defence are characteristic of the conduct of the prisoner.

25. I have a body of material independent of the prisoner, or emanating from actions taken by the prisoner since his arrest. I have a psychologist’s report from Ms Fritchley which is a medico legal report to which I will refer in a moment. I have a report from clinical psychologist evidencing the fact that the prisoner has been undertaking counselling since the commission of the offence addressing issues that are not only contributing factors to the commission of the offence because it is suggested subliminally at least that alcohol was involved, but addressing issues that have bedevilled the prisoner over a period of years. Albeit, as I pointed out, notwithstanding a long history of alcohol dependency the prisoner does not have a significant history of antisocial conduct.

26. I also have material from the South Coast Aboriginal Medical Service dealing with the prisoner’s treatment over some seven years; the Mental Health Treatment Plan to which he is currently subject, which is of positive assistance to him, material relating to his niece and her health issues which the prisoner is seeking to assist her with and the engagement of the prisoner in programs under the auspices of the Aboriginal Medical Service, including undertaking detoxification at Concord Hospital of which I have confirmatory records from that hospital, and an assessment of him for attendance upon a residential rehabilitation program.

27. With regard to that aspect of the matter I do not propose to fix a condition of the Intensive Correction Order that the prisoner attend a residential program. I will leave the implementation of that to the supervision of Community Corrections. I believe they will be in a better position than I am to determine the needs of the prisoner to undertake residential care as a requirement of any conditions that are imposed upon the prisoner as matters relevant to his supervision.

28. I do not propose to go through the detail of the prisoner’s background and employment history and the like. The prisoner has adopted the truth of what he told the psychologist. It was not suggested to the prisoner that the detail of his history was untrue, and in any event, as I said, the prisoner in his evidence was an impressive witness and his criminal history does not suggest that he is a person who would be inherently unreliable. He was cooperative with the psychologist. She formed the opinion in the context of the history available to her that the prisoner suffers a number of mental disabilities including post-traumatic stress disorder, depressive symptoms, he is of good intellectual functioning but he has considerable social anxiety.

29. By reference to the patient summary from South Coast Aboriginal Medical Service, that treatment of post-traumatic stress disorder and depression dates back to four or five years before, the commission of the current offence. This is not one of those cases where the symptoms of post‑traumatic stress disorder or depression are suddenly identified subsequent to a person being charged with serious criminal offences.

30. He has had a number of traumatic experiences in his life that have contributed to his post-traumatic stress disorder and his anxiety. The psychologist formed the opinion that his offending in this matter occurred in the context of his mental health difficulties and alcohol dependence, that the prisoner had high levels of “hyper vigilance”, and what the psychologist identified as “threat orientation”, and “intense reactivity to perceived danger”.

31. I agree that the consumption of alcohol would have amplified his emotional response to the situation that he identified when he felt he was threatened by the victim in his own home. But I also accept as a matter of obvious common sense that his intoxication could not be seen as a “mitigating factor”, merely a contextual matter to be determined in considering the events that give rise to the charge.

32. I accept from the evidence of the prisoner and his representation to others that he is distressed about his conduct and remorseful for his behaviour and I have already indicated I am prepared to find as a mitigating factor under s 21A(3) that he is relevantly contrite and remorseful.

33. His conduct as his counsel characterised in his helpful submissions to me was clearly “uncharacteristic”. There is no suggestion in his criminal history of him being a violent person, there is no conviction for an act of violence and we bear in mind of course that the prisoner is a mature man, if he prisoner was a person prone to violence towards others, one might have expected such matters to appear in his criminal history well before today.

34. I bear in mind since he has been arrested he has been subject to bail conditions which have restrained his liberty to some extent. But that is a natural or necessary incident of being charged with a serious offence. I bear in mind he was charged with more serious offences than the ones with which I am no concerned.

35. The psychologist who prepared the medico legal report thought that he was of “low risk of re-offending”. The Community Corrections officer who assessed him in a report that was prepared for the Court assessed him as a “medium risk of” re-offending. That judgment it would seem would be largely informed by the circumstances of this particular offence. So the assessment of that needs to be seen in the context of it being uncharacteristic offending.

36. The psychologist who prepared the medico legal report reflected upon the need for the prisoner to undertake particular counselling and treatment and I am satisfied based upon the evidence available to me that the prisoner has sought positively since being charged to address various matters and is actively seeking assistance, pointing to what I would regard as very good prospects of rehabilitation on the basis identified by his counsel.

20. The Community Corrections report covers a number of matters that I have already addressed in my findings. It notes the prisoner’s past history of alcohol abuse claiming to “self-medicate” symptoms of his mental problems or mental disability problems. The report notes that the prisoner is the subject at the moment of an AVO existing until 2 March 2022 in relation to the victim. However it seems to me, bearing in mind the victim does not reside next door to the prisoner any more, that there is no realistic threat to the victim. In any event I do not believe that the salutary experience of the prisoner in relation to this matter is such as to encourage him to cause any further harm to the victim.

21. The prisoner has indicated his cooperation in the future if needs be with Community Corrections, his willingness to undertake community work. He has never been previously supervised by Community Corrections which is consistent with his criminal history. There are restrictions upon supervision having regard to the current COVID-19 pandemic and restrictions upon personal contact. The Community Corrections Services assessed the prisoner as being suitable to undertake community service work. However, I note that community service work is currently suspended and the prisoner will be credited with seven hours per week until work resumes. But in terms of fixing a condition that he performs community service work I do so on the understanding that if it was available he would be required to perform it.

22. In considering the appropriate disposal of this matter I have obviously had regard to the “purposes of sentencing”. The deterrent aspects of the matter both general and personal require the imposition of a term of imprisonment. Thus, the s 5 threshold has been passed, notwithstanding the fact that the maximum penalty for the offence is one of seven years which in the range of indictable offences is modest. But it is to be fairly said that reckless wounding is a serious offence and in this particular matter acknowledging what has been put to me by the Crown I note firstly that an aggravating factor is the actual use of a weapon. Whilst the particulars of the pleading might infer that, a wounding might be caused by circumstances other than the use of a weapon.

23. I also bear in mind the offence was committed in the home of the victim or another person associated with the victim. These matters are self-evident from the facts. But this confrontation is to be seen in the home of the victim in the context of, first of all, the generosity of the prisoner’s family towards the victim’s family and particularly the victim’s dog, and in the context of the victim going to the prisoner’s home next door to confront the victim in the manner in which the prisoner gave evidence in this Court.

24. The prisoner has a background of Aboriginality. I have taken that into account. It has not been specifically raised with me, but the circumstances of this offending or the circumstances of the prisoner directly give rise to a consideration of some of the general principles that arise out of the judgments of the High Court in Bugmy v R [2013] HCA 37 and Munda v Western Australia [2013] HCA 38, to which I made reference earlier in the sittings. The prisoner’s Aboriginality of course is a relevant contextual matter. But it does not appear to be a significant matter in this sentencing exercise other than to reflect upon some background of disadvantage to which reference is made in the psychological report. But having noted that background of disadvantage to the prisoner in a range of ways has not translated into antisocial conduct on his part or contributed to a criminal history that can be explained in terms discussed by the High Court in Munda and Bugmy. But I have not lost sight of the general principles that arise there.

25. One of the key features of the matter to my mind, in light of the medical history, such as it is, and the psychologist’s opinion, is that in my view, there is a causal connection between the prisoner’s anxiety condition, or his hyper vigilance arising out of post-traumatic stress disorder and a background of depression, and the offending. I think that is self-evident from his account. The fact that he wished to speak to the victim to try and head off further threats from the victim, notwithstanding the fact that he took a knife with him, speaks of the impact upon his emotion of the threat as he perceived it from the victim when the victim came to his home and his wish to dissuade the victim from further threatening him. It is not without significance that the conduct of the victim in stabbing the prisoner in the abdomen before the prisoner produced the knife that he was carrying confirmed the worst fears of the prisoner. Albeit that the stabbing of this prisoner occurred in the home of the victim.

26. Turning to some of the matters that have been raised in the very helpful submissions, the Crown submitted firstly, the offending falls within the middle range of objective seriousness for offending of this type. Even making allowance for the character of the injuries, given the absence of any intention to cause the particular injury that was suffered, given the circumstances in which the injury was inflicted on the victim in response to being stabbed in the stomach and retreating from the victim, having regard to the explanation for the prisoner speaking to the victim in the circumstances in which the offence arose, having regard to the lack of planning and extent of the provocation, making due allowance for the injury suffered to the victim this offence in my view in the experience of this Court falls well below the middle range of objective seriousness.

27. The Crown has put submissions in relation to the character of the offence by reference to the Agreed Facts. I have referred to the detail of the Agreed Facts and I do not need to expand any comments in relation to that matter.

28. In assessing the objective gravity of the offence by reference to the matters relevant to s 54A(2), I have taken into account the relevant aggravating factors as they arise. The Crown concedes in its submissions that they go to the subjective matters, the things that I have concluded in favour of the prisoner; a very limited criminal history, stable domestic circumstances, responsibility for his niece. That is not a significant matter in this sentencing exercise, it does not call for closer analysis by myself given the other findings that I have made. It is acknowledged by the Crown that the prisoner has recognised the errors of his conduct, and particularly the error of his decision to go around to the home of the victim, particularly carrying a knife with him. But, as I said, I accept the prisoner’s explanation for that. I have also had regard, as the Crown has pointed out, to some of the conclusions reached by the Community Corrections Service.

29. The Crown points to the ‘purposes of sentencing’ and says particular regard will be had in the sentencing exercise for the need for denunciation and general deterrence. Well, all the purposes of sentencing to some extent have a role here, except for in my view the need to consider the protection of the community from the offender. I do not believe the community in any way needs protection from the offender. The commission of this offence arose out of unique circumstances reflecting the uncharacteristic conduct of the prisoner.

30. To come back to matters of general and personal deterrence, my view, in light of the mental state of the prisoner as it is analysed by the psychologist I believe consistent with the principles summarised in the decision of DPP(Cth) v De La Rosa [2010] NSWCCA 194, particularly in the judgment of McClellan J, then the Chief Judge of the Common Law Division at [177] and [178], there can be, where it is required, lesser weight placed upon general deterrence, and further lesser weight placed upon specific deterrence. I said earlier that the prisoner’s experience in this matter provides a salutary lesson for him. I do not believe he suffers from a condition that presents as a danger to the community warranting a greater weight to be placed upon personal deterrence as was discussed for example by Gleeson CJ in the decision of R v Engert (1995) 894 A Crim R referred to by McClellan J. In fact, what Gleeson CJ said in Engert was specifically adopted by McClellan J at [177].

31. Further I note in [178] his Honour pointed out that the relevant mental disability or mental illness that is causally connected to the offending may not necessarily be a serious example of such a condition. The degree of seriousness of the prisoner’s condition is difficult to assess. But it is certainly, true that his hyper vigilance, his anxiety arising out of post-traumatic stress disorder and the like, contributed to his conduct on this occasion.

32. The submissions of learned counsel for the prisoner both orally and in writing I have taken into account and most of the matters arising out of his submissions, as with the Crown, I have already dealt with in the course of the disposal of the matter. I have accepted the submission concerning his likelihood of re-offending. As his counsel, more eloquently than I can, pointed out, this conclusion can be reached by recognition of his insignificant criminal history, his conduct since his arrest, restriction of bail conditions and of course the unique or very unusual circumstances in which the offending occurred.

33. As to his prospects of rehabilitation I have already made note of the positive steps that he has taken over the period of time since his arrest. Often in our Court we get people getting in the witness box telling us how they are going to behave in the future and what they are going to do to address the issues that have contributed to their offending, in the knowledge that although there has been an opportunity to do something about those matters, nothing has been done for a year or 15 months or 18 months up until the present time. In this particular case we have a situation where the prisoner has, by his conduct, demonstrated his capacity to take his lawful place in the community and perform socially useful work in the interests of his community and himself.

34. In my view the imposition of an Intensive Correction Order with some supervision, and if possible the requirement to perform community service work, will in the context of his life history and his lack of prior offending provide an opportunity for the promotion of his rehabilitation, one of the purposes of sentencing of course I am required to take into account along with the other matters that I have identified.

35. I do not think there is anything else I need comment upon from the written submissions or the oral submissions made by the parties. I am very grateful to both the Crown and defence for their assistance in relation to this matter. The fact that I might disagree with any particular submission put by any particular party does not detract from the respect that I have for the submission and the good faith as basis for what has been put to me. But as is often recognised, I am the one who has to make a decision about these matters and the conclusions I have reached are as I have outlined.

36. Thus if you could stand up please Mr Lester. The orders I make are as follows;

In relation to the offence to which you have pleaded guilty, there being no other appropriate penalty, you are sentenced to a term of imprisonment for a period of one year, nine months.

Pursuant to s 7(1) Crimes (Sentencing Procedure) Act1999, the sentence imposed upon you is to be served by way of Intensive Correction Order. The sentence will commence today, 19 June 2020.

You are to report to the office of Community Corrections on Monday 22 June.

There are two standard conditions, you must not commit any offence and you must submit to supervision by the Community Corrections Service.

The following additional condition applies; you must perform 20 hours of community service a month up to a maximum of 200 hours. I acknowledge the fact that the COVID-19 restrictions may place limitations on your capacity to perform that condition. But the Community Services have already made allowances for that.

If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services, or the State Parole Authority, not myself. So in other words if you fail to be of good behaviour or fail to comply with the reasonable directions of Community Corrections or fail to perform community service work when it is asked of you, then I do not have any say in the matter. The Parole Authority will issue a warrant for your arrest or the Commissioner of Corrective Services will issue orders for you to be taken into custody and you will remain in custody for such time as either authority determines.

If the order is revoked you may be required to serve all or some of the period of your sentence in full time custody. So there is no question of me fixing a non-parole period in the future; that will be a matter for the Parole Authority.

I direct you to attend the Court Registry, here at Nowra when you leave the dock, where a copy of these orders will be explained to you, do you understand that?

54. OFFENDER: I do your Honour.

55. HIS HONOUR: Just one final matter to address on the run. The Crown very properly identified for me matters relevant to the determination of whether a term of imprisonment ought to be imposed by way of an Intensive Correction Order. Howie J in the decision of R v Zamagias [2002] NSWCCA 17, considered in the early days of suspended sentences, when they were reintroduced back in 2001, the steps that have to be recognised in determining whether a term of imprisonment could be served by other than full time custody, and those general principles identified by his Honour are now reflected in consideration of Intensive Correction Orders, bearing in mind we do not have suspended sentences.

56. The first issue to be determined is whether in fact the s 5 threshold has been passed. The second issue identified once the threshold has been passed is to identify all things taken into account what is the appropriate sentence for the offence for which an offender is required to be sentenced. If the sentence is one of more than two years, then there is no option other than to impose full time custody and one cannot, I accept, fashion a sentence to accommodate the making of an ICO. When one has determined what the appropriate sentence is, assuming the sentence for a single offence is two years or less, one then turns one’s mind to the issue of whether it should be served in full time custody or by way of an Intensive Correction Order. This was discussed in Parente v R (2017) NSWCCA 284, a drug supply sentencing decision. There is no reason stopping, in the appropriate case, judicial officers from sentencing an offender to, for example, 12 months’ imprisonment, but directing that it be served by way of full time custody, rather than by way of Intensive Correction Order. It is thus, in the context of those matters which were alluded to in the helpful submissions of Mr Crown, that I have considered the determination of this matter. I have determined whether the s 5 threshold has been passed, what the appropriate sentence is and how that sentence may be imposed, and in my humble opinion at this particular time, the sentence that I impose upon the prisoner need not be served by way of full time custody at this time.

57. So the ball is in your court Mr Lester if you are able to be of good behaviour, if you are able to do what Community Corrections require you to do and I will leave it for them to make judgment as to what you should do, they are better placed than I am at the moment. You will serve out your sentence, but if you cannot comply with the conditions that I have imposed then you can expect to be returned to custody.

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Amendments

26 October 2020 - Typographical correction

Decision last updated: 26 October 2020