R v Nguyen, Tuan and Baverstock, Daniel

[2010] NSWDC 87

CITATION:	R v Nguyen, Tuan and Baverstock, Daniel [2010] NSWDC 87 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT DATE:	26 February 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Daniel Baverstock: Convicted. Bail Pursuant to Section 11 of the Crimes (Sentencing Procedure) Act 1999, granted to both offenders for period of 12 months
CATCHWORDS:	Criminal Law - Sentencing - s. 11 bail - aggravated assault with intent to rob - attack victim on train in early hours of morning - striking to face of victim by both offenders - demands for money - injury to face and elbow - seven discreet sites of injury - offenders aged 19 and 20 - both heavily intoxicated - motive for robbery - to obtain funds for continuation of drinking session - potential link between assault and heavy participation in violent video games - serious issues in childhoods - significant drug and alcohol histories - rehabilitation prospects for each clouded - Crown support s.11 bail option.
CASES CITED:	Gladue v The Queen [1999] 1SCR 688 [80]
PARTIES:	Regina Tuan Anh Nguyen Daniel Baverstock
FILE NUMBER(S):	2009/00010200; 2009/00010220
COUNSEL:	Defence for Nguyen: A Williams Defence for Baverstock: R Driels
SOLICITORS:	Crown:Mr B Barnes - Office of DPP, Sydney

JUDGMENT

1. Daniel Baverstock and Tuan Anh Nguyen are aged nineteen and twenty, respectively. The offence they committed carries a maximum penalty greater than the lifespan thus far of one of them and equal to the lifespan thus far of the second.

2. An interesting but unsurprising aspect of this case is that both young men are second generation offenders. Each has a father who has served time. Rather than using that as a reason for staying out of trouble, each may be content to trace the father’s footsteps to the gaol door.

3. Today each is to be held accountable for his part in an aggravated assault upon an overseas tourist, Wing Po Lam, whilst travelling on a train between Strathfield and Redfern on 25 October 2008 with the intent to rob him.

4. The circumstances of aggravation relied upon by the Crown is that at the time of the assault each did intentionally or recklessly inflict actual bodily harm on Mr Lam.

5. Nguyen also asks that when dealing with him for the aggravated assault with intent to rob I take into account a further charge which he admits his guilt, that is contained in a Form 1 document.

6. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for these offences before this court committed by these offenders harming this visitor to our country; Gladue v The Queen [1999] 1SCR 688 [80]. My initial task requires an assessment of the objective criminality of the offence before the court. I would also need to have regard to matters personal to each of the offenders. The starting point for such assessments requires me to make findings of fact from the evidence before the court relating to both the offence and to the offenders.

7. My fact finding task has been circumscribed in that the parties have tendered an agreed set of facts to which I shall shortly return. It is sufficient at this point that I remind the court a judge is not party to those agreed facts. The tender of agreed facts does not relieve him or her from its fact finding responsibility. It simply limits the material before the court from which facts may be found. To the extent if it be the case that the facts as agreed do not reflect the actual events that occurred on the train, it must be remembered the court can only find facts from the evidence before it.

8. Each offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly.

9. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, parity and whether a term of imprisonment is at this point called for, and none of these can be commenced until the primary facts are determined.

10. What weight needs to be given to all of these matters against the imperative the sentencing should have as its primary focus the protection of the community will also need to be determined.

Facts

11. As against each accused a separate statement of agreed facts has been tendered. Exhibit A faithfully recites those facts as against both accused and I have taken the facts that I have found from that document.

12. Wing Po Lam was sitting on the top level of the second carriage of the train heading out of Strathfield bound for Redfern. In the short ten or twelve minute journey he felt something hit him over the head from behind. We are talking about a time at 12.30am in the morning. He turned around and saw Daniel Baverstock and Tuan Anh Nguyen standing behind him. The two were about three feet away and staring at him. Lam said, “What do you want?” Baverstock said something but Lam was unable to understand what it was he said. Lam stood up and began to walk past to leave the carriage. The two would be robbers stood in front of him refusing him leave. Lam said, “Go away.” Baverstock responded by suddenly hitting Lam with a closed fist twice to the left side of his face. Lam sat down. Each offender started yelling at him to give them money. Lam said, “I do not have any money.”

13. Nguyen then hit him with a closed right fist to the right side of his face. Lam saw Nguyen had a glass beer bottle in his left hand and became scared it could be used against him. Nguyen said, “Fucking give me your money, I’m serious.” Lam said, “I don’t have any money, I can show you my backpack.” He stood up, pulled off his backpack and started to open it.

14. Baverstock suddenly hit him with a closed fist to the left eye causing his glasses to smash and fall to the ground. He felt pain in his left eye, put his hand to his face and noticed a lot of blood on his white shirt. Lam thought these men were going to hurt him, so he pulled his wallet out and opened it to show them he had no money. Each would be robber started to punch him to the face with closed fists. Each hit him to the head some five or six times while yelling at him that they were serious, “Give me your fucking money.” Baverstock said words to the effect, “I’ve got your blood on my hand” and then started punching Lam who said, “I’ve already showed you my wallet and there’s no money inside.” Baverstock shouted, “Give me your ATM card and your password.” Lam replied, “I’ll go with you to the ATM at the next station.”

15. Nguyen then hit the victim in the face and head a couple of times with a closed fist. Lam screamed for help, screaming for some fifteen to twenty seconds. Both offenders grabbed him and started wrestling with him. During this wrestle Lam was pushed backwards down the stairs. He landed on his feet and escaped to the next carriage. When he looked back to see where the two were, he saw them running in a different direction.

16. Lam asked a man to call the police, which he did. This person monitored the situation until the train arrived at Redfern. Lam and his protector alighted from the train at Redfern where Lam yelled to the security officers. They arrived and were told what had happened. A search for the offenders resulted in their finding the offenders in the last carriage. They removed them to the station platform. They told the offenders to sit down. The two ignored the direction. Back up security was called, at which time Nguyen jumped on to the railway line and began running west towards Everleigh railway yards.

17. Police attended the Redfern railway station, placed Baverstock under arrest whilst another officer attended the yard around Everleigh railway yard looking for Nguyen who was found in a wall cavity on an old railway building. The two were placed under arrest and cautioned. They were taken to Redfern police station and introduced to the custody manager. Both were so intoxicated they were given time to recover and then explained their rights a second time. They were given the opportunity to participate in an interview but, as was their right, they declined the opportunity.

18. Lam, meanwhile, was taken to St Vincent’s Hospital, found to be suffering from a haematoma to the right forehead, an abrasion over the right eye, a laceration to his left elbow and swelling over his jaw.

Objective Criminality

19. From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of an offence as an essential step in assessing the seriousness of the criminal behaviour of an offender. That is done by comparing objectively the criminality exhibited in the instant offences with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of these offences can be evaluated. The objective criminality has an important impact on the overall sentencing outcome.

20. Robbery constitutes a crime against the person and a crime against his property. The crime against the person is constituted by putting the victim in fear through threats or through actual violence to such a point that the victim surrenders, against his will, his own property to the robber. Crime against property is constituted by the taking and carrying away of the property of another without any intention of returning it to its rightful owner.

21. What aggravates criminality of robbery is the level of force used to overcome the will so that the victim is prepared to surrender his property. Any robbery is also aggravated if the threat, menace or actual violence comes from more than one participant.

22. There is no doubt in my mind that Baverstock and Nguyen intended to rob Mr Lam. Each was prepared to use physical violence to the point of occasioning at least actual bodily harm to the head and body of their victim. Violence to the head is particularly dangerous because of the high risk of traumatic brain injury or injury to the senses of sight or hearing. Such injuries are frequently seen in this court as a result of beatings not unlike the beating that this young man received on the train. It is more luck than good management that Lam was not seriously injured. I am satisfied the level of violence administered was of a sufficient order to overborne Lam’s will to a point where he would have surrendered money if he had any. The real stupidity of this offence is that the offenders would not accept the proposition that he could not produce money out of thin air. The violence that he suffered was wasted violence because it never could have produced any money at all. It was, what we call, gratuitous.

23. In this case there was no robbery because Lam had no money. In that sense the offence is not as serious as it would have been if the intended robbery had been consummated, only because the second part of the robbery offence never occurred, that is the offence against the property. But its motivation was the driving force. The photograph of Lam’s injuries appears to disclose up to seven discrete impact sites on his face. I have not counted impact sites on other parts of his body.

24. Both offenders struck him; the attack was cowardly. Why do I say that? Because the victim was isolated and was outnumbered. He complains of at least twelve blows to his body. He was in an upstairs compartment and was confronted by two thugs. I am satisfied there was a level of planning, at least to the extent of determining to do a robbery and to choose to execute the robbery during a ten or fifteen minute journey to Redfern, that is, a journey from Strathfield to Redfern in circumstances where their victim had no escape from the train.

25. Both offenders were inebriated. There is no evidence suggesting either had money in his possession when arrested. I am satisfied the motive for the would be robbery related to a desire for funds to spend later that night.

26. Research is showing that the male brain has not matured in respect of judgment skills until the mid twenties have been reached. Alcohol in significant quantities is also known to impact adversely upon the exercise of judgment skills. Alcohol also contributes to disinhibition. Both of these factors, alcohol and judgment immaturity played some part in the criminal behaviour of both these offenders. I also suspect that violence may be based on video or computer games which may have influenced one or both offenders but particularly I have in mind Mr Baverstock. Whilst there is little evidence pointing in that direction and it would be insufficient to prove even on the balances that that is so, I mention it so that those charged with oversighting the offenders can consider that possibility when addressing rehabilitation issues. If it were so, of course, there is a suspension of reality in those violence games which would not be hard to imagine from somebody who was drunk or disinhibited.

27. The objective criminality of these offences is sufficiently serious to call for terms of imprisonment. I acknowledge imprisonment is called for when no lesser punishment is adequate to deal with the exposed criminal conduct.

Subjective Matters

Daniel Baverstock, Family, Relationships and Background

28. Daniel Baverstock is a single man who claimed as his girlfriend the sister of his co-offender. That relationship may now be at an end. Although his parents are long separated each has supplied an affidavit in support of their son. There are two elder brothers, one aged thirty-six and the other thirty-four. I suspect they may be from an earlier relationship. His father was in custody from 2002 to 2005, significant years from Daniel Baverstock’s point of view. The offender’s elder brother has also seen gaol time. The marriage of the parents appears to have ended when the offender was about six years old, although it is possible the parents may have separated a couple of years earlier or are poor historians.

29. Baverstock had difficulties relating to both of his parents. As a consequence he lived a transient and itinerant lifestyle, living with friends or on the streets, or with one parent or the other. Since eighteen though he has resided with his father. Given his self focus and interest in alcohol his relationship with family members is likely to remain tension ridden. In fairness Baverstock does see his two year relationship with his girlfriend as being a positive influence in reducing his alcohol and drug issues. What, if any part, cultural clashes have played in his upbringing, is unclear. I note so that that comment may be understood. His father is Caucasian, as I understand, his mother Chinese.

Education, Skills and Employment

30. Although he has seen a psychologist retained by the defence, that psychologist does not appear to have administered any psychological tests but has simply prepared a glorified pre-sentence report, in which case somebody may have wasted their money.

31. Baverstock’s schooling has been disruptive. There appear to be a number of school changes and a number of changes perhaps going back to a school, both during primary and secondary schooling. Included among his schools was a school for pupils with behavioural problems.

32. The absence of testing gives me little insight into the cause of the behavioural problems. Was it a lack of mental aptitude, a learning difficulty, a disruptive home life, an unsettled school life or some serious personality component causing the behavioural issues? How can I focus any rehabilitation program in the absence of proper assistance from an expert witness specifically retained to encourage the judge to head for a rehabilitation outcome?

33. He was enrolled at Epping Boys High, suggesting appropriate innate intelligence. His schooling appears to have been a disaster. Whether self imposed or otherwise I cannot say. He left in Year 8 aged fifteen. In this country with our standard of living and our respect for education such a result is disastrous. Notwithstanding his limited education I am told, “Your client is literate and at a clinical level impresses as an individual with sufficient intelligence to have proceeded further in his schooling.” Baverstock told Probation and Parole he was “bored really easily and didn’t like doing what he was told.” That could be caused by anything from the brilliance of the student illustrated in the film “Good Will Hunting” or an incapacity.

34. Michael Parrington, a teacher of nearly thirty years experience, has written an objective and insightful reference. He notes that Baverstock was attending a Yo-Yo program at Hornsby TAFE, a program for students who did not function well in mainstream schooling. He said:

“Daniel struggled in this program, truanted regularly, as a consequence did not complete Year 10 and thus did not receive his school certificate.”

That insight suggests two conflicting propositions. Firstly, and encouragingly, that Baverstock really does want to do something to improve himself. That is the good news. And secondly, and discouragingly, that he is self focused and lacks self-discipline.

35. Since leaving school Baverstock has been unemployed but for short periods in sales and labouring. Michael Parrington has noted some skills. Apparently Baverstock has a gift, rich in prospect, raw and untutored at present, an artistic ability in drawing. There are also above average computer skills. Either of those fields, or the merger of both, may provide a possible future direction. Maybe his time at Hornsby TAFE would have been better served in the art school there.

General Health

36. So far as one can tell from appearance in court, Baverstock presents as a well built fit young man in apparent good health.

Mental Health Issues

37. I have made reference to behavioural problems whilst at school. Clearly they are a symptom of some forces acting out. There is a drug and alcohol history also suggestive of an emotional scarring that may be driving some attempt at so-called self-medication. There is an attempted suicide in 2008, again suggestive of some unresolved emotional or psychological problem. None of which was explored, at his expense. There are reported violent fantasies, which may be the product of some emotional or psychological problem, simply too much violence on computer games or could be an exaggerated impact of video and computer violence games.

38. There appears to be a drug induced psychological response, including escalated aggression, paranoid ideation and probable depression.

39. Of clear concern is Baverstock’s declaration to Probation and Parole that he would not seek a psychiatric assessment to ascertain the risk of violence. Whether that is motivated by a desire to stay as he is, or more likely a lack of trust in the science of medicine and those who practice in it, together with his self-consciousness in revealing matters about himself that only he knows about and is perhaps ashamed of is unclear. Watson-Munro’s opinion is that it may be a sense of despair and an underlying view that he cannot be helped. I cannot rule that out either but I certainly would have liked to know more than it was hypothesised.

Alcohol and Drugs

40. Baverstock commenced with cannabis at the age of thirteen, was into ecstasy by fourteen and from there he graduated to smoking and later to injecting heroin. He denies addiction to heroin. By fifteen he was smoking ice on a regular basis, he admits in excess of three times weekly. It is likely to be under reported. He concedes the affect of the ice was paranoia and rising aggression. That is what makes me think it might be under reported. He was more fulsome to Mr Watson-Munro, indicating the drugs contributed to severely extended periods without sleep, produced auditory hallucinations, delusions of reference and general disorientation in time, place and person. Again consistent with more than three times weekly. At such a level his drug usage constituted a serious health abuse.

41. He claims to have reduced his alcohol intake since his arrest, although Watson-Munro notes a “recrudescence” or breakout to binge drinking from time to time. He claims it took three months to withdraw from ice and its side effects. If he is being honest, it shows a level of self-discipline not present in his approach to education and inconsistent with his approach to alcohol. Is it a glimmer of hope or a self-delusion? I need to find out.

Character and Criminal History

42. Some features of his character have already been revealed. His pursuit of violent fantasies, his lack of self-discipline in education, his self-indulgence and self-focus in relation to family and his past drug abuse. His courage and self-discipline, if it be the case in his self-confronting of his ice usage, his anxiety and insecurity in confronting his emotional and psychological scars. His supporter, Michael Parrington, noted Baverstock appeared to be a young man who lacked skills, needed to deal with life’s problems, who was sleeping his days away, not rising from the bed until early afternoon, spending all night on computers and having showed kindness to him, that is Parrington, and appreciation for work done in renovating the mother’s residence. All of those features have been shown or referred to. Given the long history of drug and alcohol abuse, it is to Baverstock’s credit that he has no prior convictions and would appear to have no prior history with the police.

Attitude to the Offence

43. The evidence is conflicting. Those who are closest to him claim contrition. Parrington claims, “Daniel has expressed his sorrow and shame for what he has done.” His father says, “David is remorseful for what he has done, telling me that he was wrong and unprovoked.” His mother believes, “Daniel has realised the seriousness of these things he has done wrong...”

44. On the other hand, the professionals take a more reserved position. The Probation and Parole acknowledge he expressed his regret for the incident as incidentally does Watson-Munro but added, “That appeared to be associated with his personal circumstance rather than any remorse for the victim.”

45. He is described by Probation and Parole as an angry, impatient and disturbed young man and lacking insight into his violent behaviour. He told Probation and Parole in September of last year:

• He is unwilling to attend for psychological assessment.
• His drug and alcohol issues are no longer problematic.
• He will not undertake further intervention

46. For today is crunch day. He would appear to have taken his lawyer’s advice and attended upon Mr Watson-Munro, probably against his own desires.

Rehabilitation Prospects

47. As matters presently stand, Baverstock’s rehabilitation prospects are not good. Parrington speaks of him having learnt the consequences of breaking the law and learnt the need to develop skills. But for his assistance in renovations, I see no evidence before me of him doing either.

48. Blocking the path to rehabilitation are unresolved serious emotional and psychological issues: a truculent defiance to taking the hard steps necessary to resolve any mental health issues to consolidating his claim for drug rehabilitation; his lack of insight into and antisocial nature of his violence are a worry. If he had been involved in the world of cartoon violence, his understanding of violence as a destructive, harmful, social phenomenon would be nil. The cartoon world or the video or computer normalise or perhaps even glorify assaults that the law condemns, and, of course, no one feels pain in the cartoon or video world.

49. He has a long association with alcohol, thirteen years and a six year history of poly-drug abuse with suggestions in the evidence that they may be re-emerging as a force in his life. The case law makes clear that courts, when sentencing young offenders, should give as much emphasis as they can to rehabilitation, provided there are prospects that the offender is willing to pursue them.

50. There are few signs Baverstock may be willing to try. Should he demonstrate a capacity to rehabilitate, more sentencing options become available to the sentencing court. Significantly he did go to be assessed by a psychologist in October 09, even though in September 09 he had said he would not. He told the psychologist he was “reticent” to embark upon treatment. If that is an accurate account of what he said, then it still leaves open the possibility that he will, even if a little reluctantly, cooperate with a treatment regime. There has been progress made in respect of reining in both alcohol and drug consumption in the recent past, although that progress would still need to be consolidated.

51. Mr Watson-Munro regards him as cooperative and having some potential in life. It is hard to resist the proposition that he may have potential in life. Sadness is, I do not know whether he accepts that with prospects of some gains being made in his psychological condition. The accused has skills in drawing and computers that may be waiting to be harnessed. He is young and the downside of his character is not yet set in stone. Each of his parents have expressed concern for him, each appears to be supportive of him. He appears to have reasonable support from Michael Parrington. His mother nominates James O’Reilly and Duy Le as also supportive of him. He appears to have a home in which to live.

52. I turn now to the co-offender Tuan Nguyen.

Family Background and Relationships

53. Tuan Nguyen is a twenty year old single man, Australian born of Vietnamese heritage. He has three sisters, nineteen, sixteen and twelve and two brothers, fourteen and ten. From an earlier marriage of his father there is a twenty-six year old sister and a twenty-three year old brother. Both parents are still together and both on Social Security benefits. References have sought to betray Nguyen as the sole breadwinner for the family.

54. Against a history of heavy alcohol abuse, humble earnings as a tiler and riding on trains at 12.30am in the morning, I do not regard him as committed to that task in October 2008. What, I ask myself, has changed since then?

55. It is unclear whether he has a current partner or not. He told Probation and Parole in September 09 he was living with his girlfriend and had been so for four years and the relationship ended. In April 2009 he told the Ryde Drug and Alcohol Services his partner was assisting him in regulating his drinking. I can only, on that evidence, assume the relationship ended some time between April 2009 and September 2009 or that he is a poor historian.

Education, Employment and Skills

56. He attended Bonnyrigg Primary and subsequently Bonnyrigg High School, leaving again at the age of fourteen in Year 8. His pressure to leave, he said, related to a family need for him to earn income to support them. I have made my observation about that against his drinking history and the like. He has never been unemployed. He presents a reference from Don’s Tiles that says he has been a subcontractor with them for five years, is honest, hardworking, enthusiastic, punctual, efficient and professional. He told Probation and Parole he earned between twenty and $500 weekly. Even if those are nett figures, his pay packet is relatively thin for that amount of work. It translates as ten dollars per hour. Frankly, it is likely Nguyen is not an accurate historian to those professionals who have interviewed him for sentencing in this matter.

General Health

57. So far as one can tell from his appearance in court, he presents as a fit young man with no apparent physical health problems to interfere with his rehabilitation.

Mental Health

58. Although sent by his counsel for a forensic psychological personality profile, what has been submitted by the same psychologist is another glorified pre-sentence report. There are some references to his being anxious but no symptoms or historical examples of it. There has been no psychological testing of him. There is a complaint of low self-esteem. I have assumed there is no adverse mental health issue that would impede his rehabilitation but again I am not much in a position to work out what matters need to be addressed for the purpose of any rehabilitation I put him on.

Drugs and Alcohol

59. It may be that Minh Tran, the author of the pre-sentence report, overlooked it or it may be that the offender failed to disclose it but a serious omission to the pre-sentence report is the absence of any report about what appears to be a substantive and worrying drug history. Mr Tran makes a cursory reference to a developed alcohol habit at the age of fourteen and the consumption of a carton of 375 mil full strength beer with his co-offender. Mr Watson-Munro was told of the poly-drug abuse history involving cannabis, ecstasy and ice, commencing with cannabis at the age of twelve. There were frequent intoxication with drugs at school, which impacted upon his interest in and capacity to study.

60. There is a claim Nguyen was “self-medicating”, by which is meant that Nguyen was taking illicit drugs for some perceived therapeutic purposes. Nothing could be further from the truth. Medicine is about healing; illicit drugs are either about self-indulgence or obliteration, neither of which is therapeutic. “Self medication” is a phrase used by addicts to self justify the unjustifiable. To use the phrase is a nonsense, it is also an abuse of the English language and a subconscious strategy of drug addicts to normalise or rationalise their own harmful actions to their bodies and minds.

61. One would think health professionals such as Mr Watson-Munro would know better than to accept that form of self-rationalisation. In this offender’s case his so-called “self-medication” led to protracted sleep disturbance, escalating anxiety, significant depression, and, when he was withdrawing, an increase in his alcohol consumption. Where is the medication in all that, I ask?

62. His alcohol consumption reached levels where he would regularly have alcoholic blackouts. It would seem that he is working hard to destroy his frontal lobe because alcohol blackouts certainly impact on the capacity of intellectual function.

63. He claims a reduced consumption to two bottles per week. There is an April 2009 report I earlier referred to from the Ryde Drug And Alcohol Service, indicating three consultations between early December 2008 and 6 April 2009. The service was told that he had, by that time, restricted his drinking to once per week. I cannot rule it out as not being true but if it is, it is almost at the miracle stage because very, very few people can cure themselves with three quick consultations over a four or five month period.

Character and Criminal History

64. Two of his cousins, a friend, a family doctor and an employer have provided references for him. His friend says his offence is out of character. One person speaks of his strong work ethic and contribution to his family. The doctor speaks of him being a person of good character and trustworthy. There is, on his criminal record, a 2003 matter. He was not convicted. I do regard him as a person having no convictions, and entitled to the benefit of being regarded up to this point in time as a person of good character.

Attitude to the Offence

65. A number of character references spoke of his expressing regret and shame. Those references seem to have been written around September of 2009, the same time as a pre-sentence report. At that time the offender was telling Mr Tran he disagreed with some of the police facts, particularly in respect of his involvement in any attempted robbery. But I think he did say he was remorseful. No doubt, after listening to the advice of his counsel, he met again with Mr Tran where he now accepted all of the alleged facts. Mr Tran thought the offender had changed his attitude and now fully accepted his part in the assault, and its purpose, that is to rob Mr Lam.

66. Frankly, I doubt the offender’s sincerity. I am satisfied he has done all asked of him by his defence counsel as being in his interests but I do not see that as a guarantee of genuine remorse.

Rehabilitation Prospects

67. This offender’s rehabilitation prospects are clouded. There are some positive sides. His family is intact and he has an important role - even if he has not yet fully accepted it - to play in that family. He is aware that his alcohol and drug abuse are unacceptable health risks for him and he is aware they have contributed to his unlawful behaviour. He is young and his character is still developing.

68. On the other hand his drug and alcohol abuse was long and entrenched. It is - and I say this with no criticism of him - difficult to accept that he has put all that behind him and, with only three sessions in relation to his alcohol, and none in relation to his drug abuse.

69. There are stressors within the family dynamics with two parents no longer working and several siblings, including four still of school age. That does not mean that all four of them are attending school but they may be. There may be mental health issues relating to his father’s loss on a number of occasions when the father was in prison. It is likely his work is more intermittent than he told Mr Watson-Munro or that he is hopefully being paid more than he told the Probation and Parole Service. His insight into his offending conduct may be one of convenience rather than one of conscience.

Plea of Guilty

70. Both offenders pleaded to this offence before the Local Court. Each is entitled to receive a substantial benefit for the utilitarian value of that plea. The JIRS statistics show that of those sentenced to imprisonment only thirty per cent receive a sentence of two and a half years or less. The terms of imprisonment range from eighteen months to seven years. I have already indicated that a term of imprisonment is called for. If I was to sentence today - I want you both to hear this - I would be setting a non-parole period of fifteen months and a balance of term of nine months. That would include a discount of twenty-five per cent for your pleas of guilty.

71. Only thirteen per cent of those sentenced to imprisonment received a sentence of two years or less. You must understand that would then be considered a lenient sentence. In the Crown’s submissions he submitted, given the age of the accused, a course of full-time custody may not necessarily be appropriate. He submitted that a s 11 bail, to give the offenders an opportunity to demonstrate their capacity to rehabilitate, would be in order.

72. There is an issue of parity. The sentencing outcome, at least at this stage of the proceedings, should be the same for both offenders given their participation in the criminal offending, and their subjective circumstances are also on a par with each other. Mr Driels sought a s 12 bond for Mr Baverstock. While I do not rule out a s 12 bond I would not, as matters presently stand, make that determination now. I would send - and this is something you will need to consider in the next few minutes - I would send each offender to prison, full time, now, if they do not agree to the s 11 bail I am about to propose.

73. Frankly a non-custodial outcome would be the only appropriate outcome if substantial rehabilitation were not before the court. I am satisfied at the moment it is not. I am not satisfied it is established in either offender’s case. Both will have heard I have real doubts about their rehabilitation prospects, particularly in the case of Mr Baverstock, although it is not necessarily a good thing to single one man out. I have, however, decided to give each offender an opportunity to convince me that rehabilitation can be undertaken by them, substantial and genuine. I intend to place each offender on stringent and demanding bail conditions, focused on what I conceive now - relatively uninformed as I am - to be the needs of each.

74. I will be reviewing progress made by each offender every three months for a twelve-month period. In the event that real and substantial rehabilitation is proved, I will then suspend the sentences I have indicated I intend to give. The s 11 conditions will include the following: Probation and Parole Service supervision, alcohol and drug counselling, random urinalysis, ongoing counselling for Mr Baverstock, and psychological reports to me every three, six and nine months, an abstention from drugs and alcohol by both offenders, a proof of employment or, in Mr Baverstock’s case, a trip to an employment agency to get on the long-term unemployed support persons’ program, and some sort of community engagement. By that I mean three hours a week in some community activity, it can be sport, it can be social. It can be work; it can be helping the Salvation Army sort clothes; just some sort of volunteer work, mowing the church lawn. I would prefer it to be with other people so you have other contacts.

75. Before I formalise the orders, because I want you to make up your minds whether you want to go down one path or the other, the choices are: follow that program I have just outlined for twelve months, or I can call Corrective Services up here and you can begin your sentences now. Counsel, would you like to approach your clients and see what they want to do. I should tell you, I have had people say, “No, I want to go to gaol,” so, I will respect any decision. I will adjourn shortly as it is an important decision.

SHORT ADJOURNMENT

HIS HONOUR: Now what’s your position Mr Driels?

DRIELS: Yes. Mr Baverstock understands the condition. What he asks and what is very clear, he will need some help in the direction of how he does this. It’s not a matter of being left on his own. That’s the initial worry that I saw from him; is how do I do it type situation. We’ve got to lock that into place as well. He understands that.

FURTHER DISCUSSION BETWEEN HIS HONOUR AND MR DRIELS

WILLIAMS: Your Honour I’m instructed by Mr Nguyen that he would appreciate the opportunity that your Honour is offering in relation to the extended bail on the conditions your Honour has outlined.

FURTHER DISCUSSION BETWEEN HIS HONOUR AND COUNSEL

76. Abstain from the consumption of alcoholic beverages for the first six months and thereafter responsible drinking and consultation with Probation and Parole. Abstain from the consumption of illicit drugs.

77. Submit to random urine/breath screenings for the presence of alcohol or illicit drugs. Refusal to participate in drug tests will be deemed as a breach of bail. Any dirty drug tests will be deemed a breach of bail. Any alcohol in the first six months will be deemed a breach of bail.

78. In consultation with Probation and Parole, seek counselling from qualified counsellor, psychologist or psychiatrist. In the case of Mr Nguyen, do all he can to maintain employment. In the case of Mr Baverstock, attend CentreLink or some similar employment agency and seek assistance in the personal support program for long term unemployed.

79. Each is to engage in some community engagement, preferably an engagement involving other person as well, for example sport, but any community engagement for a minimum of three hours weekly.

80. The next condition, to attend Court at all times required by the Court and to provide proof in participating in all of the activities listed on the bail. I should put in here fail to attend Probation and Parole counselling, training and meetings, is deemed a breach of the bail. And then we need to set three dates, 21 May at Sydney District Court, 20 August at a Court to be determined and 19 November at a Court to be advised. Then next year, I will set a finalisation date on 18 February at a Court to be advised. I want both gentlemen to understand on that day, in the event that everything goes well, the sentences that I have indicated I would be setting, will be suspended, and that would mean that you would walk out of Court, but you would still be on a good behaviour bond, all right, for another two year’s roughly.

HIS HONOUR: All right. I’ll adjourn. That bail will be entered on level 4.

23/11/2010 - Error in Judge's name - Paragraph(s) Coversheet field