R v Marley Dargin

[2021] NSWDC 179

District Court

New South Wales

Medium Neutral Citation:

R v Marley Dargin [2021] NSWDC 179

Hearing dates:

27 February 2020
5 March 2020
20 April 2020
30 November 2020
15 February 2021
12 April 2021
15 April 2021

Date of orders:

15 April 2021

Decision date:

15 April 2021

Jurisdiction:

Criminal

Before:

Montgomery DCJ

Decision:

See Orders

Catchwords:

CRIME — Appeal and review — Appeal from Local Court to District Court — By person sentenced against sentence

CRIME — Fraud — Dishonestly obtain financial advantage by deception

CRIME — Fraud — Dishonestly obtain property by deception

CRIME — Property offences — Break, enter and commit serious indictable offence

CRIME — Property offences — Receiving

CRIME — Property offences — Take and drive a conveyance

Legislation Cited:

Crimes Act 1900 (NSW) ss 93C(1), 111(2), 117, 118(1) , 154A(1)(a), 192E(1)(a), 192E(1)(b)

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 11, 53A

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

R v Ponfield; R v Scott; R v Ryan and R v Johnson (1991) 48 NSWLR 327; [1999] NSWCCA 435

Category:

Principal judgment

Parties:

Regina (DPP)
Marley Dargin (Offender)

Representation:

Ms Kim, Solicitor Advocate for the Director of Public Prosecutions
Mr Cassels for the Offender

File Number(s):

2019/00306922 - R v Marley DARGIN
2018/00363695 - R v Marley DARGIN
2019/00028165 - R v Marley DARGIN
2019/00293408 - R v Marley DARGIN
2019/00306994 - R v Marley DARGIN
2019/00356772 - R v Marley DARGIN

 Decision under appeal 

Court or tribunal:

Local Court of NSW

Jurisdiction:

Criminal

Citation:

Unreported

Date of Decision:

31 January 2020

Before:

Magistrate Toose

File Number(s):

2018/00363695 - R v Marley DARGIN
2019/00028165 - R v Marley DARGIN
2019/00293408 - R v Marley DARGIN
2019/00306994 - R v Marley DARGIN
2019/00356772 - R v Marley DARGIN

Judgment (Ex Tempore)

1. Thank you. Now, I should also say that I will in my reasons identify the 11 matters before me as counts 1 to 11. Count 1 of course being a matter not the subject of the Severity Appeal but a fresh matter before the Court for sentence. The count referred to as count 7 was the subject of a plea of guilty and sentence below, the plea of guilty entered on 1 October 2019, the sentence below ordered on 31 January 2020. When the plea was entered below, there were facts in the Court Attendance Notice.

2. For efficiency of proceeding today, in a course which the Court applauds as of great assistance in avoiding the frustration of the matter being remitted to the Local Court, the parties have as a matter of practise, whether or not it be required by law, presented to the Court amended agreed facts in relation to counts 6 and 7. When I say amended, the agreed facts in relation to count 6 are identical to those before the learned Magistrate below. But to the document has been added the facts of count 7 which facts are identical to those as they were stated in the Court Attendance Notice at the time the plea of guilty was entered. I am informed by counsel for the offender today that the plea of guilty below which was never challenged by the offender, is, in any event, confirmed on the basis of the amended Statement of Agreed Facts. That Statement of Agreed Facts and the Court Attendance exhibit 2 in the proceedings.

3. I turn now to the judgment on sentence including both parts of the Appeal against severity of sentence and Sentence in relation to count 1, the new matter. The offender comes before the Court for sentence in relation to 11 counts. Only count 1 is a new count. Only count 1 was not the subject of sentence below, count 1 is not considered within the Severity Appeal.

THE SEVERITY APPEAL – COUNTS 2 - 11

4. In relation to counts 2 to 11, the offender appeals against severity of sentence ordered on 31 January 2020 at Blacktown Local Court by the learned Magistrate. There are no Form 1 matters. The learned Magistrate proceeded by imposing a single aggregate sentence. The Crown sentence summary headed on p 1, “as at 9 April 2021” provided the following assisting summary of the offences. I will identify them by count numbers.

H: 71161555/7

5. The first offence is count 2 under s 111(2) Crimes Act 1900 (NSW) - aggravated enter dwelling in company with intent to steal, value less than $60,000. The offence committed on 12 October 2018. The sentence was of a Community Corrections Order (‘CCO’) of 18 months, ordered and dating from 14 May 2019. On 31 January 2020, the offender was called up on breach of the CCO and the CCO was revoked. The learned Magistrate indicated a term of imprisonment of 24 months.

6. The maximum term for the offence in this Court would be 14 years but in the Local Court was 2 years imprisonment and or $11,000 fine that is 100 penalty units.

H: 71161555/8

7. Count 3 was an offence under s 154A(1)(a) Crimes Act 1900 (NSW) - take and drive conveyance without consent of owner. The offence was committed on 12 October 2018 at Pendle Hill. The offence was subject of the CCO ordered on 14 May 2019 which CCO was revoked when the offender was called up for breach on 31 January 2020. The indicative term identified was 12 months imprisonment. The maximum term in this Court would be 5 years imprisonment and in the Local Court, 2 years imprisonment and or $5,500 fine, 50 penalty units.

H: 70088350/1

8. Count 4 is an offence under s 93C(1) Crimes Act 1900 (NSW) -offence of affray. The offence was committed on 25 January 2019 at Blacktown. The offence was initially dealt with on 14 May 2019 by way of CCO and the offender was called up on 30 January 2020 for breach of the CCO. An indicative term of 12 months was specified. In the District Court the maximum penalty is 10 years imprisonment and in the Local Court the maximum penalty is 2 years imprisonment and/or a $11,000 fine, 100 penalty units.

H: 74871188/1

9. Count 5 is an offence under s 117 Crimes Act (NSW) - larceny. The offence was committed on 10 September 2019 at Canley Vale. An indicative term of 6 months was specified. In this Court, the maximum penalty is 5 years imprisonment. In the Local Court, because the value is below $2,000, the maximum penalty is 2 years imprisonment and/or a $2,200 fine, 20 penalty units.

H: 140293801/1

10. Count 6 is an offence under s 192E(1)(a) Crimes Act 1900 (NSW) – dishonestly obtaining property by deception. The offence was committed on 1 October 2019 at Blacktown. An indicative term of 6 months imprisonment was specified. The maximum term in this Court would be 10 years imprisonment and in the Local Court is 2 years imprisonment and/or a $11,000 fine, 100 penalty units.

H: 140293801/3

11. Count 7 is an offence under s 192E(1)(b) Crimes Act 1900 (NSW) – dishonestly obtaining any financial advantage by deception. The offence was committed at Blacktown and the aggregate sentence ordered below an indicative term of 6 months was specified. In this Court, the maximum term would be 10 years imprisonment. In the Local Court, the maximum term is 2 years imprisonment and/or a $11,000 fine, 100 penalty units.

H: 72498311/2

12. Count 8 is an offence under s 192E(1)(a) Crimes Act 1900 (NSW) – dishonestly obtaining property by deception. The offence was committed on 14 September 2019 at Parramatta. An indicative term of 6 months was specified. In this Court, the maximum term would be 10 years imprisonment. In the Local Court the maximum term was 2 years imprisonment and /or a $11,000 fine, 100 penalty units.

H: 72498311/3

13. Count 9 is an offence under s 192E(1)(a) Crimes Act 1900 (NSW) – dishonestly obtaining property by deception. The offence was committed on 14 September 2019 at Mays Hill. An indicative term of six months was specified. In this Court, the maximum term would be 10 years imprisonment. In the Local Court the maximum term is 2 years imprisonment and/or a $11,000 fine, 100 penalty units.

H: 72498311/4

14. Count 10 is an offence under s 192E(1)(a) Crimes Act 1900 (NSW) - dishonestly obtaining property by deception. The offence was committed on 14 September 2019 at Toongabbie. In the aggregate sentence ordered below, an indicative term of 6 months was specified. In this Court, the maximum penalty would be 10 years imprisonment. In the Local Court, the maximum penalty is 2 years imprisonment and/or a $11,000 fine, 100 penalty units.

H: 72498311/5

15. Count 11 is an offence under s 188(1) Crimes Act 1900 (NSW) - receive property, theft of value less than $5,000. The offence was committed at Granville on 14 September 2019. An indicative term of 6 months was specified. In this Court, the maximum penalty would be 10 years imprisonment. In the Local Court, the maximum penalty was 2 years imprisonment and/or a $2,200 fine, 20 penalty units.

16. When I have said maximum term in this Court, I am referring to this Court’s jurisdiction to impose the maximum statutory penalty had the matters proceeded by indictment. In relation to each of them, the matters proceeded summarily in the Local Court, sentencing is pursuant to the jurisdiction of that Court.

SEVERITY APPEAL – FACTS

17. The offender was born on 1 September 2000 and obtained his majority on 1 September 2018. The offending the subject of the severity appeal occurred approximately between his 18th and 19th birthdays.

18. Counts 2 and 3 arise from a single event of criminal enterprise on 12 October 2018. The offender and a co accused entered the premises of Smartway Dry Cleaners through an open rear gate to the victim’s Toyota Rav4 motor vehicle and by use of her keys which were taken from a hook within the premises, drove the vehicle away.

19. The vehicle was located a couple of hours later by police. There was no confrontation or engagement with the victim or any other person at the premises. In my opinion the offending was opportunistic and did not involve sophisticated planning and indeed involved minimal planning. For the purposes of s 111(2) Crimes Act 1900 (NSW) I assume that the hook from which the keys were removed was within the same building structure as a dwelling house although that is not clear from the agreed facts. Whilst opportunistic, the offence was not spontaneous as it involved a searching access of the car park and premises. The facts do not include loss of the vehicle but so far as it is relevant, its value was $7,300.

20. The circumstance of aggravation was to be in company of a co offender. The Court Attendance Notice identified the serious indictment offence intended at the entering of the property as larceny, intent to steal value of property not exceeding $60,000. It is not apparent from the particulars whether the subject property was the victim’s keys for her motor vehicle which would be of nominal value. Defence written submission, MFI 2, dated 11 April 2021 submits that the subject of the larceny was the car keys. I understand this submission is put on the basis that the count 3 offence deems taking of the motor vehicle for the purpose of driving to be larceny but the intent on entering the property was not to steal keys. The value of the motor vehicle was low in the range for the offence as dealt with summarily. On the facts it is to be assumed that the property was not lost. There is mention of a fire which was extinguished. I raised this with the Crown and received no submission of loss to the victim.

21. Count 3, the offence under s 154A (1)(a), take and drive conveyance without consent of owner is an offence of deemed larceny. The property stolen was obviously of a value low in the range for offending of this nature. It was not for instance a motor vehicle of great value such as a high performance imported vehicle. The facts do not describe the duration of the driving, the subject of the statutorily deemed larceny. That the motor vehicle was recovered only about two hours after CCTV recorded the taking strongly infers that the offending was of relatively short duration.

22. Count 4, an offence under s 93C(1), the offence of affray being the use of unlawful violence towards another such as to cause a person of reasonable firmness present at the scene to fear for his or her safety was committed on 25 January 2019. The offender over a period of three weeks participated in heated verbal altercations with a man named Phan. Phan was the proprietor of ‘Donut Box’ at Westpoint Shopping Centre, Blacktown. The offender’s long term partner worked at that store. On the subject occasion when the offender yelled obscenities to Phan as the offender and his partner were walking past the store, pushing a pram with their child, Phan walked from behind the counter and physically confronted the offender. They each took a fighting stance and thereafter a physical altercation involving punching and kicking as well as grappling techniques between all involved ensued.

23. Phan suffered bruising, redness and cuts however no significant injury was suffered by any participant. The agreed facts do not inform whether or not the offender suffered injury of any degree. The offender was not dominant, cruel, or disproportionately violent to the other participants in the affray. To the contrary, the facts strongly infer that he was thrown to the ground on more than one occasion by Phan. Phan was also charged.

24. Following count 4, there is a period of no offending for nearly eight months. Count 5 involved the larceny of a wallet, the value of which wallet was $50. On 10 September 2019, the offender entered the employees’ only car park at the rear of a Pizza Hut restaurant at Canley Vale. The boundary of the premises was enclosed by a sliding metal gate and metal fence. The offender without permission entered the premises and after looking through the side window of the victim’s vehicle, opened the driver’s side door. He decamped a few seconds later with the wallet including its Visa and Medicare cards and the victim’s drivers licence, a makeup bag and a tablet computer and charger. The offender deposited all the property taken except for the wallet and its contents a short distance away and those items were recovered by the victim without loss. There was no illegal use of the victim’s Visa or Medicare cards or of her driver licence.

25. Counts 6 and 7 arise from steps in what was basically a single criminal enterprise on 1 October 2019. The offending was pursuant to s 192E(1)(a) and s 192E(1)(b) Crimes Act 1900 (NSW), an offence of fraud in that it involved the dishonest obtaining of property belonging to another, and dishonestly obtaining a financial advantage. The victim’s property including her wallet was stolen from her car but the facts do not implicate the offender in that theft. Subsequently the offender in the company of two others entered the McDonald’s restaurant at St Martins Village, Blacktown, where the offender used the victim’s Commonwealth Bank debit card to purchase food to a price of $33.15. The credit card had been within the victim’s stolen wallet. That purchase is the subject of count 6. After consuming the food, the offender used the same Commonwealth Bank debit card to pay a taxi fare in the sum of $28.46 to travel away from the McDonald’s restaurant. That purchase is the subject of count 7.

26. Counts 8, 9, 10 and 11 arise from steps in what was basically a single criminal enterprise on 14 September 2019. Count 11, an offence under s 188(1) Crimes Act 1900 (NSW) involve the offender receiving stolen property while knowing it was stolen. A person known to police unlawfully gained access to the victim’s motor vehicle and stole his wallet. Subsequently the offender received the victim’s Westpac credit card from another person. Count 8, the offence of fraud under s 192E(1)(a) Crimes Act 1900 (NSW) involved the fraudulent and dishonest obtaining by deception of the purchase of a taxi fare in the sum of $52.50. On the same day with use of the same card, the offender committed count 9, another offence under that section, by purchasing of cigarettes and a lighter of value $30.99. Count 10, was again an offence under s 192E(1)(a). It involved use of the same card for the payment of a taxi fare in the sum of $23.10. Specifically, count 11, s 188(1) offending, was receiving the stolen Westpac credit card whilst knowing it to be stolen.

CONSIDERATION OF THE SEVERITY APPEAL

27. On 31 January 2020 the offender was called-up for re-sentence by the learned Magistrate, on counts 2, 3 and 4, on account of his subsequent offending, being counts 5, 6, 8, 9, 10 and 11, which were committed in breach of a Community Corrections Order made 14 May 2019 and in breach of bail.

28. In fact a second Community Corrections Order was ordered on 19 May 2019. The learned Magistrate imposed an aggregate sentence of the maximum term available under Local Court jurisdiction of 5 years and fixed a non parole period of 2 years and 6 months which sentence was backdated to commence on 16 October 2019. Immediately I observe that the offender had been in custody from 1 October 2019 for the subject offences.

29. Pursuant to that sentence, the offender will be eligible for release to parole on 15 April 2022. The balance term will expire on 15 October 2024. Had the term been ordered to commence from 1 October 2019, obviously those dates would be adjusted to 31 March 2022 and 30 September 2024.

OBJECTIVE SERIOUSNESS

30. The guideline principles stated in R v Ponfield; R v Scott; R v Ryan and R v Johnson (1991) 48 NSWLR 327 are discussed in detail in relation to count 1 below but apply with equal consideration to counts 2, 3 and 5. It is in the nature of such offending that victims and the community are caused to feel unsafe and fearful. It is in the nature of the fraud offences, counts 6 to 11, that financial institutions, victims and the community generally suffer inconvenience. Victims specifically, suffer a sense of insecurity and are put to significant inconvenience when their banking cards are illegally used. The offence at each of counts 2 to 11 is an offence of prevalence. Each of them is inherently a serious offence as indicated by the statutory guideposts for sentence.

31. With the exception of count 4 (the offence of affray) there is in my opinion a patent overall observation to be made, which is that the offending was for small remunerative benefit and/or displayed anti-social activity of prevalence in crime within the community which causes more than annoyance but indeed distress, fear and insecurity to victims and the community. That said, there is an obvious absence of sophisticated criminal planning. The offender’s criminal conduct involved opportunistic larceny and fraud which was not spontaneous in that there is the impression from the overall offending that he was repeatedly open to the criminal opportunity of taking that small remunerative gain when the opportunity presented.

32. Count 2 was dealt with summarily because the value of the property taken did not exceed $60,000 and the only circumstance of aggravation was that the offender was in the company of another person. The offence did not involve other circumstances of aggravation contemplated by s 105A such as the offender being armed with an offensive weapon or involving violence or restriction of liberty of another person. The unlawful entry was mainly to a car park area and involved limited entry to the rear of a business premises for the obtaining of the keys. There was no confrontation with any person although the offender must have known that persons were working within the business premises. In my opinion, after having recognised the relevant spectrum of offending to be limited to matters dealt with summarily, the offending falls into the lower range of objective seriousness for offences of this type. In addition, in my opinion the offending is inextricably related to count 3 for the purposes of sentencing, the two offences completing the event of the taking of the motor vehicle.

33. Count 3 involved limited taking by distance and time of a vehicle of modest value. In my opinion the offending falls into the lower range of objective seriousness for offences of this type. Again, I say this in the context of the Local Court jurisdiction to deal with the matter summarily. The offending is inextricably related to count 2 for the purposes of sentencing, the two offences completing the criminal enterprise of the taking of the motor vehicle. In my assessment of the objective seriousness of counts 2 and 3, I bear in mind that there was only one co accused involved in committing the offence, there was no conduct of heightened culpability such as damage to property or potential for violence, and significantly the offending was opportunistic and without sophisticated planning.

30. Count 4 was dealt with summarily because the affray was in the lower order of violence in the range of offending of this type. In my opinion, the criminal culpability of the offender’s part was below mid-range for a matter dealt with summarily because it was not he who physically approached Phan. Without that physical confrontation, there is nothing to suggest violence would have occurred at all. There is nothing about the facts which identifies the offender as the promoter or instigator of the physical affray or to have exercised excessive violence or malice beyond that engaged in by Phan.

31. Count 5 was dealt with summarily as was appropriate given the value of the property stolen and not recovered, being only the victim’s wallet which was of value, $50. That the offender initially also took the makeup bag, computer and charger, in my opinion adds something to the criminal culpability of his offending even though he quickly set those items aside and they were recovered without loss. This is because his action in taking them displayed an intention to take whatever was discovered and met his view of what would be of value. The offending did not involve confrontation with any person and did not involve the entering of a building or place in which persons were known by him to be. The taking occurred only in a car park which was vacant of people. Once again, the offending involved little planning and was opportunistic. In my opinion the objective seriousness involved in count 5 was in the low-range of the spectrum of the offence. Once again, the offending was not spontaneous in that the offender entered the car park looking for the opportunity to steal.

32. Counts numeral 6 and numeral 7 are inextricably connected in a single criminal enterprise in that they occurred on 1 October 2019 and involved the offender using a Commonwealth Bank debit card, the property of the victim, for small value purchases. Indeed, the $33.15 for purchase of food, the subject of count 6 and the $28.46 in payment of taxi fare, the subject of count 7, are in the very low range of monetary value for offences within the spectrum of offences of this type. In my opinion, the objective seriousness of offending in each of count 6 and 7, after consideration of them separately, falls in the low range.

33. Counts 8, 9, 10 and 11 are inextricably related in a single criminal enterprise, in that the several criminal acts engaged a course of conduct being the fraudulent misuse of the illegally obtained credit card on a single day. Each offence involved a small amount. Albeit count 11 is a crime under a different section of the Crimes Act, the statutory maximum term of the offences is identical. In my opinion, the objective seriousness of each offence falls within the low range.

SUBJECTIVE FEATURES

38. With the exception of the count 4 offence of affray, the personal criminal culpability of the offender is to be displayed in that the whole of the offending was opportunistic, small-value theft and illegal taking of a motor vehicle committed whilst avoiding confrontation with victims and without violence or significant damage to property other than the deprivation of the property stolen. His antecedent history as observed in the expert reports and to which I will come displays such criminal activity to have been repeated on numerous occasions since approximately the age of 15 years. His antecedent history shows repeated re-offending whilst on recognisance. Overall, the offender’s antecedent history is well informed by the observation of poor judgement making in the context of illiteracy, cognitive deficit and deprived upbringing.

39. The sentencing assessment report dated 28 January 2020 made several observations of the offender which in my opinion are readily recognisable as associated with the subject offending. They are:

• He has no employment history and provides from receipt of social security payments.

• He is an Aboriginal man whose responsibilities, to the extent he is engaged in them, includes provision for his long-term on again and off again partner and their young child, a three year old daughter (at about the time of the offending).

• He is illiterate in reading and writing and in arithmetic.

• He has an extensive history of drug and alcohol abuse which at the time of the offending had not been addressed by any engagement with intervention.

• He suffered deficiency of mental processes such that when supervised by Community Corrections during the Community Corrections Order he was recommended to be assessed for a Mental Health Plan but, ultimately, did not participate in counselling.

• He was assessed to present a Tier 1 Medium-risk of re-offending.

• He was assessed as suitable to undertake Community Service Work.

40. The Community Corrections officer who authored the sentencing assessment report dated 28 January 2020, as did Dr Furst, psychiatrist and Dr White, neuropsychological and forensic services expert, to whose reports I will come; reported that the offender accepted responsibility for his behaviour. Further, his criminal behaviour was associated with poor decision making, such impairment being contributed to by the influence of drugs and alcohol at the time.

41. In my opinion, the offender’s circumstances of deprived upbringing, lack of education and cognitive deficits significantly explain his recurrent small-time theft and poor decision making such that his moral culpability for failing to control his impulse for opportunistic theft and fraud was substantially reduced at the time of the offending. He and his siblings were raised by his grandmother in the circumstances of him never having known his father and of his mother being an alcoholic. Such effects of deprivation do not diminish over time and must be given weight in determining appropriate sentencing: Bugmy v The Queen (2013) 249 CLR 571. In my opinion, those circumstances mitigate the sentence that would otherwise be appropriate for the offences.

42. In his report dated 9 February 2021, Dr Furst, in addition the above referred to circumstances, reported that the offender suffers from learning difficulties. His opportunity of education was significantly limited despite him being placed in special education classes in primary school and subsequently attending the Coreen School in years 8 and 9. The Coreen School is a special education facility where all students have been assessed as having a mild to moderate intellectual disability, emotional disturbance, behavioural disorder and or challenging behaviours and learning difficulties. He left school in year nine.

43. The offender’s behavioural problems and delinquency issues continued throughout his school years and by his mid-teens, he was drinking excessively, smoking cannabis and fighting. These were behaviours in which he was involved with his peers. He spent periods in juvenile detention between the ages of 16 and 17 years. From the age of 18 years, he used ice (methylamphetamine) and more recently, he has used opiate drugs including synthetic heroin and buprenorphine.

44. On 20 April 2020, I made orders under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) providing the offender the opportunity of attending Balund-A, being a drug and alcohol, and life skills rehabilitation unit. But unfortunately, the offender again exercised poor judgement, and despite the structured and expert assistance of that program, he was expelled because of ongoing use of buprenorphine and ultimately abusive behaviour.

45. Dr Furst considered the offending dating back to 2014, when the offender was only 14 years of age, to be associated with supporting his drug habit, engagement with antisocial peers and to his being easily influenced by others. On mental state examination, Dr Furst assessed the offender as being "a bit lost" and feeling isolated whilst in prison but not to be suicidal.

46. Dr Furst diagnosed the offender as suffering the following mental disorders:

• substance use disorder

• intellectual disability

• childhood conduct disorder.

47. Dr Furst observed that when the offender's grandmother, Patricia Gilchrist, died in 2018, the offender was left with little or no community support whilst his circumstances of intellectual disability included:

• Having trouble understanding social rules leading to socially inappropriate behaviour and other behavioural problems;

• Having trouble seeing the results of his actions because of impaired consequential thinking; and

• Having trouble solving problems because of impaired reasoning, planning, abstract thinking and other areas of frontal executive function.

48. Several of Dr Furst's statements in conclusion are helpful in the instinctive synthesis of, and the design of, appropriate sentencing in this matter.

"The combination of poor parental and maternal role models, and endemic drinking/drug use in his family and his community have likely been the strongest influences of his own drinking and drug use. Such a background of deprivation and disadvantage is consistent with the principles of mitigation elucidated in…

(Dr Furst thereafter referred to case law).

"Low levels of intelligence are strongly correlated with criminal offending and unsatisfactory outcomes including recidivism. Such cognitive deficits also predict worse outcomes in mainstream drug and alcohol and/or other mainstream psychological interventions."

"Depending on the outcome of his upcoming neuropsychological assessment, Mr Dargin may well be eligible for greater support through the National Disability Insurance Scheme (NDIS)

such as in relation to case management, access to support accommodation/living skills options and psychological interventions."

"Drug and alcohol counselling programs adapted for people with intellectual disability would be appropriate.

Additionally, there should be a focus on education and vocational skills for Mr Dargin. In order to address his learning deficits, this would also help him to find and maintain some type of employment in the future. Should he receive a custodial sentence, the Assisted Services Unit (ASU) at the (MSPC) Long Bay Correctional Centre is best placed to cater for his cognitive impairment and therapy/rehabilitation needs, which would also involve input from the Statewide Disability Services and psychologists working for Corrective Services NSW."

49. Consequent of Dr Furst's recommendation, the offender underwent neuropsyychological assessment by Dr White at Lithgow Correctional Centre on 25 March 2021. After reporting background facts in similar fashion to Dr Furst's of the offender's deprivation and lack of opportunity, Dr White made the following further observations in the relevant field:

• In primary school, the offender was “stressed out” and suffered severe anxiety “trying to be perfect” and found school work difficult. So he would switch off. He was disobedient in the classroom, a truant, and would get into trouble. He began associating with older boys who did not attend school and became demotivated.

• In 2020 whilst at Balund A, the offender obtained his civil construction licence but no other formal skill, training or qualifications. In regard to future work, the offender expressed an interest in working with reptiles, for example, at Featherdale Sydney Wildlife Park.

• In 2019, he participated in EQUIPS Addiction Program run by Corrective Services NSW and at Lithgow Correctional Centre is engaging in the EQUIPS program to learn about “ways around drugs, offending and stuff”.

• After participating for five of the six month Balund A program, on return home, the offender resumed drug use in the company of his friends at a social gathering within a few days. The offender informed Dr White that everyone surrounding him in his life drinks alcohol and that several members of his extended family are heavy drinkers, just as he had been brought up with an alcoholic mother and surrounded by regular alcohol and drug use. The exception to this was his grandmother who died in 2018.

50. The offender informed Dr White, that he is independent in all personal care and basic activities of daily living, such as preparing food, washing clothes and buying necessities, with the exception of tasks requiring reading. He said that he relies on others, such as his partner, to read him letters and tend to paperwork. He has no experience with more complex tasks required for independent living, such as setting up accounts for utilities or signing contracts. Dr White arrived at the following neuropsychological assessment:

• Full scale IQ is within the borderline range falling at the 6th percentile, which means better than or equal to only 6% of the population’

• Non-verbal abilities are within the average range and at the 30th percentile;

• Verbal abilities are weak, falling within the borderline range and at the 4th percentile;

• The difference between the offender's verbal and non verbal skills is clinically significant with such a large difference occurring in only 9.1% of the population;

• Working Memory Index was low average in the 9th percentile;

• Processing Speed Index was Borderline in the 5th percentile;

• Executive functions including reasoning and problem solving were relatively intact, including reasonable planning and organisation of information skills in the Low Average to Average range;

• Depressive symptoms were at mild levels.

51. Dr White observed the offender in prison to be of overall subdued effect. This observation in combination with the earlier observation of similar nature reported by Dr Furst is significant because it is made in the context of the offender being Aboriginal, incarcerated, experiencing his first adult incarceration, and being a person of compromised cognitive ability for decision making and for appreciation of the consequence of his choices. Those observations indicate that the offender will experience extra hardship during incarceration compared to that of the general prison population. Dr White concluded that;

"Together these results suggest that he is able to acquire and retain new information but can be overwhelmed if presented with too much information given his verbal limitations and is best if this can be broken down, repeated and/or presented in a visual format. Currently he endorses mild depressive symptomology, which is not unexpected given his current circumstance. The results of the neuropsychological assessment indicate that the offender does not suffer from an intellectual disability but testing suggests the possibility of a specific learning disorder."

Dr White also observed:

“Mr Dargin's drug use appears to have a pervasive impact on his psychological functioning and behaviour, with his offending often directly related to his substance use; seeking money to support his drug use at the time of the current offences. Mr Dargin displays remorse for his actions and can outline the likely impact of his actions on his victims. He has outlined his remorse in a letter to the Court which he said he wrote during his incarceration with the help of a fellow mate.

However, his insight into his offending and its relationship to his drug use is limited. He presents as immature for his age with limited prosocial skills. He displays maladaptive response strategies to managing his emotions, as well as stresses; namely, with substance use. Even if he had clear plans, he is unlikely to be able to execute these plans without external support and assistance given his rather limited life experience and skills set.”

52. Dr White's observations include the following matters which are specifically relevant to consideration of rehabilitation:

• The need for a high level of intervention and support.

• Likely requirement for in-patient residential facility to address his substance use.

• He is willing and motivated to re-engage with rehabilitation and address his drug use, and has the cognitive capacity to do this.

• He will need to address other aspects of his life including employment, stable living situation, prosocial support and community engagement.

• He will require vocational skill training and assistance to find and maintain suitable employment.

53. The letter to the Court by the offender, in which his remorse for the offences is stated, includes reference to his spent months in custody having made him realise the extent of his mistakes. He concedes his bad alcohol and drug use problems and states his willingness to address same. He expresses his remorse for and awareness of harm done to victims, as reported by Doctors Furst and White, as well as in the Sentencing Assessment Report.

54. I take onboard that the offender has not given oral evidence of his remorse or of appreciation of his offending, and the effect his offending had on victims.

55. He has not given oral evidence of his willingness to participate in rehabilitation. Of course, that is always a matter for a court to take on board. But I also bear in mind, that in this matter, his cognitive deficits and limited skills as described by Doctors White and Furst, moderate the concern that is generally expressed by courts in relation to expressions of remorse, appreciation of criminality and willingness to be rehabilitated which come forward in the untested written form.

56. In other words, it may indeed be better obtained and expressed by those experts in their assessments of him, and in a letter, the writing of which he was assisted in by another prisoner; than he might achieve, were he, to have attempted to give the evidence orally.

57. I well recognise the hardship of isolation suffered by Aboriginal persons of similar life experience within our community. This arrives from the deprivation of upbringing without appropriate familial support including the deprivation of opportunity to find self-identity.

58. Dr White reported that the offender did not ever know his father, has an inadequate and strained relationship with his mother because of her alcohol abuse and was raised in an environment of financial hardship by his grandmother. This has left him without regular contact or connection with his extended family and with a desire to connect with his Aboriginal heritage and community, but without the knowledge and opportunity of how to go about this.

59. He has two sisters living in Sydney who are supportive but he has been deprived of the opportunity of identification with his Aboriginal heritage, land and place. That isolation and sense of loss of identity, is to be understood as a substantial hardship experienced in the context of his diminished cognitive functioning. The offender's relative youth is of significant value in consideration of his rehabilitation, in the synthesis of sentencing, in my opinion.

60. The relevant offending commenced soon after his 18th birthday and therefore spans his adult life before incarceration for these offences. The reports indicate extensive juvenile offending and there is a mention of 67 prior property related offences. Again, there is no mention in the information available to me of other violence or acts of malice toward person or property in the community, other than that inherent to each offence.

61. In my assessment, the evidence well supports that the criminal culpability of Mr Dargin's offending is to be assessed as lower than that at which it might have been for another offender from an environment of the normal opportunities of life. In my assessment, the deprivations of illiteracy and cognitively impaired judgment making, as described in the reports of Doctors Furst and White, inform of matters that contributed to the offending.

62. I am satisfied by the reports that the offender requires support and structure in his everyday environment in order to improve his opportunity to succeed in the community. I am satisfied by the reports that there are significant opportunities for rehabilitation of the offender. That Dr Furst has recommended the offender be moved from Lithgow Correctional Centre, general prison population, to a special assistance unit at Long Bay Correctional Centre is evidence strongly inferring that the offender has experienced greater hardship whilst incarcerated to date than that experienced by the general prison population. In addition, incarceration since 1 October 2019 has been the offender's first experience with imprisonment among the general adult prison population. The offender complied with direction to participation in the EQUIPS Addiction Program during the CCO ordered on 14 May 2019, before his breaching the terms of that Order. He partially complied with the Balund A program for five months, including his obtaining of a construction industry certificate before his breach of the disciplines of that program.

54. Those participations provide actual evidence of his want for rehabilitation and his difficulties through personal diminished resources to comply. In my opinion, the recommendations for rehabilitation provided in the reports of Doctors Furst and White are of value, in the design of appropriate sentencing for the offender. Again, those failures of compliance in the past are informed by his circumstances of deprived upbringing and cognitively impaired judgement making.

55. In my opinion, it is in the interests of the community that appropriate supported rehabilitation be made available to the offender in order to give him the best opportunity of compliance with programs dealing with his drug use and his illiteracy and improving his life skills, particularly in regard to judgement making. The expert evidence well supports that sentencing, mindful of the opportunity of rehabilitation is in order to protect the community against the offender's recidivist conduct of the past continuing.

56. Criminal culpability of the offending is to be seen as further moderated by the emotional impact of the passing of the offender's grandmother in 2018, and his turning to the maladaptive response of drug taking to compensate for the stress of coping without her assistance. I understand the background history to indicate that she was the strongest, if not the only, prosocial influence in his environment.

PLEAS OF GUILTY

66. In relation to each offence, the offender pleaded guilty. In relation to all counts except count 4, the offence of affray in relation to which Phan was also charged, he entered his plea at the earliest available opportunity. He entered his plea of guilty to count 4 on the date of hearing and after successful negotiation of agreed facts.

67. The offender is entitled to 25% discount for the utilitarian benefit of his pleas of guilty in relation to each of counts 2 and 3, and 5 to 11. The offender is entitled to a 10% discount for utilitarian benefit of his plea of guilty in relation to count 4. Both parties supported this discounting.

SENTENCING ASSESSMENT

68. In my opinion, in relation to counts 2 to 11, the s 5 Crimes (Sentencing Procedure) Act 1999 (NSW) threshold is satisfied and having considered all possible alternatives, no penalty other than imprisonment is appropriate. Neither party contests this. The appropriate sentence must contemplate application of the s 3A Crimes (Sentencing Procedure) Act 1999 (NSW) sentencing purposes as informed by the above described evidence and considerations, including as follows;

• Adequate punishment for the offence. Making the offender accountable for his actions and denouncing his offending conduct, particularly bearing in mind, that the non parole period must meet the seriousness of the offence;

• Recognition of the harm done to the victims of his crime and the community;

• The importance of general deterrence of other persons from committing similar offences and specifically deterring the offender from recidivism is moderated by the circumstances of his deprived upbringing, his isolation from his Aboriginal heritage and the support of his culturally connected community, as well as, most significantly, by poor decision making in his offending being significantly contributed to by his cognitive impairment;

• To protect the community from the offender by promotion of rehabilitation of the offender, and so far as is available, encouraging the support for him as he is likely to require when returned to the community;

• Special circumstances for moderation of punishment and denunciation include the offender's cognitively impaired judgment, heightened hardship in prison and that the present time in incarceration is his first adult incarceration.

69. Whether or not youth is as described by some, a special circumstance; nevertheless, it is a consideration in sentencing, particularly in regard to the prospects of rehabilitation and in regard to the effects of totality of sentencing; bearing in mind that the appropriate sentence should not be of crushing effect.

TIME IN CUSTODY

70. Essentially, the offender has been in custody since 1 October 2019; a total of 519 days. Of that period, he attended Balund-A whilst on s 11 bail between 28 April 2020 and 7 September 2020; a period of 132 days. There is no evidence before me upon which I can compare the conditions of incarceration/recognisance at Balund-A with full time imprisonment. I proposed, and the parties did not speak against, allowing a credit of 50% for the time spent in that program. Time already spent in custody on this basis, calculates to 453 days.

71. In my opinion, the appropriate indicative sentence for count 2, after discount for plea entered, is 6 months imprisonment. In my opinion, the appropriate indicative sentence for count 3, after discount for plea entered, is 8 months imprisonment. Were the offender to be sentenced for counts 2 and 3 only, given that they are so immediately connected in the criminal action of taking the vehicle; in my opinion, the totality principle would require significant concurrence of time served to be appropriate. I have the same regard for totality of sentencing in relation to counts 6 and 7, and counts 8 through to 11.

72. In my opinion, the appropriate indicative sentence for count 4, after discount for plea entered at hearing, after successful negotiations concerning agreed facts, is 7 months imprisonment.

73. In my opinion, the appropriate indicative sentence for count 5, after discount for plea entered, is 6 months imprisonment.

74. In my opinion, the appropriate indicative sentence for count 6, after discount for plea entered, is 3 months imprisonment.

75. In my opinion, the appropriate indicative sentence for count 7, after discount for plea entered, is 3 months imprisonment.

76. In my opinion, the appropriate indicative sentence for count 8, after discount for plea entered, is 3 months imprisonment.

77. In my opinion, the appropriate indicative sentence for count 9, after discount for plea entered, is 3 months imprisonment.

78. In my opinion the appropriate indicative sentence for count 10, after discount for plea entered, is 3 months imprisonment.

79. In my opinion, the appropriate indicative sentence for count 11, after discount for plea entered, is 3 months imprisonment.

DETERMINATION OF APPEAL ON SENTENCE

80. As did the learned Magistrate, I determine that it is appropriate to impose an aggregate sentence of imprisonment for the offences instead of imposing a separate sentence of imprisonment for each. The offending occurred between 12 October 2018 and 1 October 2019; a period of one year. In the aftermath of the passing of the offender's grandmother, during which the disadvantages of deprived upbringing in combination with his compromised cognitive capacity for decision making, contributed to delivering him to poor peer associations and illicit substance use, which informed his criminal conduct.

81. Indeed of the ten counts, the subject of this appeal on sentence, seven counts concern offences occurring over a period of only about one month. I find that the offender and the community will benefit for a longer period of supervision on parole in order to best facilitate the opportunity of his rehabilitation. The multiple counts, in reality, involve only a few separate events of criminal enterprise. The repeated of breaches of recognisance is an aggravating factor in assessing totality of appropriate sentence even though there is some degree moderation of this concern by his personal circumstances, as I have described.

82. In my opinion, the appropriate approach as at 20 April 2020 before determining the ultimate sentence and before setting an aggregate sentence was to first proceed by s 11 bail permitting the rehabilitee the opportunity of the Balund A program. The offender having failed in that opportunity, I am satisfied that it is now appropriate to proceed to final sentencing.

83. I am of course aware that the appropriate indicative sentences which I have determined are in some instances for shorter terms of imprisonment than as determined by the learned Magistrate. As I come to the determination of the appropriate aggregate sentence, I am mindful of the totality of sentence and that must it reflect the overall criminality, and not crush this young offender's opportunity for rehabilitation. It is important not to induce a feeling of hopelessness and not to destroy his expressed want for a useful life free of use of illicit substances and alcohol abuse, and in whatever employment he is able to obtain. The Crown properly, in my opinion, observed that totality of sentence is an important consideration in determination of the Appeal.

84. In my opinion, the appropriate aggregate sentence for the offending, the subject of the appeal, would be a term of imprisonment of two years and six months and have commenced on 1 October 2019, and which would expire on 31 March 2022. The appropriate single non parole period of one year and five months to have commenced on 1 October 2019, would expire on 28 February 2021.

85. The appeal against severity of sentence is successful.

SENTENCE Count 1, Aggravated Break and Enter 20 September 2019

86. For reasons not available to me, this offence was before the learned Magistrate at Blacktown Local Court on 31 January 2020 when the offender was sentenced in the other matters and was not before me for sentence when the severity appeal in those other matters came before me on 20 April 2020. As can be seen, the offending occurred within the period of that other offending, the subject of the Severity Appeal.

87. The maximum penalty for the offence pursuant to s 112(1)(a) is 20 years imprisonment with a standard non parole period of five years imprisonment; there are no form 1 matters.

FACTS

88. Count 1; at approximately 9pm on 20 September 2019, the offender and two unknown co offenders entered the underground carpark of the victim's residential unit complex and walked from car to car, using the victim's key, in an attempt to locate the vehicle which the keys would open. The keys had been obtained from the lounge room table within the victim's ground floor unit whilst the victim was asleep in his unit. Entry in order to take the keys had been achieved through the unlocked courtyard door to the unit. Also stolen was a box of coins of total value of approximately $200 and a backpack containing work materials.

89. The aggravation element of the offence is that it was committed whilst knowing that a person was asleep in the unit. Applying the principles set out in the judgment of R v Ponfield; R v Scott; R v Ryan and R v Johnson (1991) 48 NSWLR 327; [1999] NSWCCA 435 assessment of the seriousness of the offending includes consideration of the following:

• The offence was committed whilst the offender was at conditional liberty of the CCO ordered 14 May 2019 and in breach of the terms of that order;

• The offence was not the result of professional planning, organisation and execution but opportunistic in nature, yet involving the unsophisticated planning of investigating the opportunity to enter the unlocked door, to obtain the keys and then to locate the motor vehicle to which the keys would give access;

• The offender has the prior record of like offences described in these reasons considering the Severity Appeal and including counts 2, 3 and 5 in particular;

• The victim was not elderly, sick or disabled;

• The offence was not accompanied by vandalism or by any other significant damage to property nor did it display malice to person or property.

90. As was observed by Grove J, with whom the Chief Justice and Sully J agreed, at [37], every offender is different and criminal justice is necessarily individual;

"So to say is not to deny that inconsistency in sentence is a badge of injustice nor to deny that the issue of and the adherence to guidelines are compatible with striving towards ideals."

His Honour continued at [38] to say of sentencing for this prevalent nature of offence;

"There are, however, identifiable groups with common circumstances. The most obvious groups consist of juveniles and young persons. The prominence to be given to rehabilitation of the young in determining sentence is recognised to the point of being almost axiomatic."

91. At [43], that the principal reason why it was not appropriate for the Court of Criminal Appeal to deliver a guideline judgment expressed in quantitative terms was because “with respect to this offence… [there is a] great diversity of circumstances in which the offence is committed."

92. In consideration of the nature of domestic burglary referred to by his Honour at [45], I observed that the subject offence did not cause loss of significant value to the victim, either in monetary terms or in terms of items of particular personal value for offending of this type. However, the offence did involve invasion of the sense of privacy and security of his home for the victim and would no doubt have left him with a sense of violation and insecurity.

93. The Crown conceives the objective seriousness of the offending falls below the mid-range but not at the lowest end of the scale. Whilst the defence submits that it falls towards the low end for this type of offending. The offender entered a plea of guilty at the earliest opportunity and is entitled to a 25% reduction in sentence on a utilitarian basis. The parties have made submissions on subjective matters and I have expressed earlier in these reasons, in relation to the Severity Appeal, my consideration of that field of evidence. The exercise of the instinctive synthesis of sentencing which applies to count 1 embraces those conclusions also.

94. All those considerations equally apply with the exception that because of the statutory non parole period; I note the statutory goalpost indicating the seriousness with which the community views this nature of prevalent defending. In my opinion, the objective seriousness involved in the offending falls into the low, but not the lowest range, in the spectrum of this offence.

95. Neither party contested that the s 5 threshold is crossed. I find that it is and that the only appropriate sentence is one of full time custody, particularly having regard to the offending having occurred in breach of the CCO and the offender's antecedent criminal history.

96. Crown concedes that there should be partial accumulation between count 1 and the counts the subject of resentencing in this Severity Appeal.

97. In my opinion, the appropriate indicative sentence after allowing the 25% discount for early plea is 8 months imprisonment with a non parole period of 4 months. In my opinion, it is appropriate to proceed by way of aggregate sentence adequately addressing the criminality of the offending in counts 1 to 11 whilst bearing in mind the principal of totality, such that the stated purposes of sentencing are satisfied, the sentence is not of crushing effect and the community as well as the offender have the opportunity of his rehabilitation.

ORDERS

98. I make the following orders:

1. I set aside the sentence ordered 31 January 2020 at Blacktown Local Court in relation to counts 2 to 11;

2. S 11 Bail ordered 20 April 2020 is revoked;

3. The offender is convicted of the offences in each of counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 & 11;

4. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) an aggregate sentence is imposed.

5. The offender is sentenced to an aggregate sentence of imprisonment of 2 years and 11 months, taken to have commenced on 1 October 2019 and which will expire on 31 August 2022;

6. I set a single non parole period of one year and nine months taken to have commenced on 1 October 2019 and to expire on 30 June 2021;

7. I recommend that the offender be placed within the Assisted Services Unit at MSPC, Long Bay Correctional Centre for the remaining term of his imprisonment;

8. I recommend the offender be assessed for a mental health care plan by Statewide Disability Services and psychologists retained by Corrective Services;

9. I recommend that the offender be provided inpatient residential facility drug and alcohol counselling programs and such other drug and alcohol programs, such as EQUIPS, as are suitable for his impaired cognitive ability;

10. I recommend the offender be provided reading, writing and arithmetic education with a particular focus on vocationally required skills;

11. I recommend that the offender be provided vocational skills training;

12. I recommend that Corrective Services NSW and/or the NSW Parole Authority assist the offender to engage in the Creating Futures Justice Program provided by Weave or a similar program;

13. I recommend that the State Parole Authority or Corrective Services NSW assist the offender through the WEAVE or a similar organisation to reconnect with his aboriginal heritage, land and place identification.;

14. I recommend that Corrective Services NSW and/or the State Parole Authority assist the offender to obtain any benefits to which he is entitled under the National Disability Insurance Scheme (NDIS) on his parole by assisting him to engage the services of St Vincent de Paul Society or other appropriate Disability Insurance Service Provider, including for the provision of his case management, access to support accommodation and living skills options, as well as psychological interventions.;

15. I recommend that Corrective Services NSW and/or the State Parole Authority provide a copy of these reasons for Judgment and copies of the reports of Dr Richard Furst dated 9 February 2021 and of Dr White dated 7 April 2021, to any Mental Health Care Plan providers, Statewide Disability Services and the Assisted Services Unit at MSPC, Long Bay Correctional Centre and any other correctional centre within which the offender is placed..

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Decision last updated: 10 September 2021