R v Paddison (No.2)

[2021] NSWDC 470

District Court

New South Wales

Medium Neutral Citation:

R v Paddison (No.2) [2021] NSWDC 470

Hearing dates:

On the papers

Date of orders:

09 September 2021

Decision date:

09 September 2021

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 10

Catchwords:

CRIMINAL – sentence – firearms offence – consideration of sentencing assessment report concerning offender’s suitability for home detention – whether to order sentence of imprisonment be served by intensive correction

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 66

Cases Cited:

Mandranis v R [2021] NSWCCA 97

R v Paddison [2021] NSWDC 291

Category:

Sentence

Parties:

Director of Public Prosecutions (NSW)
Mr S Paddison (offender)

Representation:

Counsel:
Mr T Gabrial (solicitor) for the Director of Public Prosecutions (NSW)
Mr D Wakim (solicitor) for the offender

Solicitors:
Director of Public Prosecutions (NSW)

File Number(s):

2020/00121950

Publication restriction:

Nil.

SENTENCING REMARKS

Background

1. On 2 July 2021, this sentencing proceeding was adjourned, but not before the Court determined that the appropriate punishment for the two offences of possession of a firearm without authority, was a term of imprisonment of 2 years and 7 months. The sentencing remarks were published in CaseLaw as R v Paddison [2021] NSWDC 291.

2. The commencement of that term of imprisonment was stayed and the sentencing proceeding was adjourned to enable the Court to receive a report concerning the suitability of a home detention condition to assist the Court to determine whether the term of imprisonment should be served by way of an Intensive Corrections Order (ICO). As noted in the earlier remarks, the receipt of such report was a precondition to an ICO being ordered with the condition of home detention.

3. On 24 August 2021, Ms Longden, the Community Corrections Officer of the Mount Druitt Community Corrections office prepared a sentencing assessment report for this purpose. The gist of the report was that Ms Longden assessed the offender’s home accommodation as being suitable for a period of home detention. In coming to that conclusion, Ms Longden reasoned that although there was a risk that an extended period of home detention may cause the offender’s PTSD to deteriorate, that risk could be managed. The report also laid out a supervision plan.

4. As envisaged in my earlier remarks, both the Crown and the offender were given the opportunity to make further submissions upon the question whether the Court should direct that the term of imprisonment be served by ICO in the light of this report, consistently within the limitations referred to in those earlier remarks. In the event, neither the Crown nor the offender availed themselves of that opportunity.

Consideration

5. The applicable principles, as indicated in my earlier remarks, were set out by the Court of Criminal Appeal in Mandranis v R [2021] NSWCCA 97 per Simpson AJA (Garling J and N Adams J agreeing) at [49]-[54]. To paraphrase, that means that s 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) subordinates, but does not exclude, the other sentencing considerations (in s 3A) – the s 3A considerations already having been factored in to determination of the sentencing option of imprisonment – in favour of the paramount consideration of community safety. One relevant factor that must be taken into account when determining community safety is the likelihood of the offender re-offending; and relevant to that is considering the better way of addressing the offender’s risk of reoffending: by full-time detention or by ICO.

6. With reference to the considerations in s 3A, given that the offender poses a medium to low risk of reoffending, I see no contribution to the prevention of crime, or protection of the community from him, by a sentence of full-time detention. I also noted in my earlier remarks the reduced weight, in the circumstances accorded to general and specific deterrence and denunciation on account of the offender’s reduced culpability. Further, although the seriousness of the offending and importance of holding the offender to account pointed towards full-time detention, there was no actual harm caused by the offending in the circumstances. As explained in my earlier remarks, a concern – from the perspective of community safety – remains about the offender’s mental issues, but I consider that this can be mitigated by the imposition of both community service and rehabilitation conditions: the former ensuring community involvement and the latter providing therapeutic benefit. As to the period of community service, I have taken into account Ms Longden’s indication from her earlier sentencing assessment report as to the number of hours each month she indicated that Mount Druitt Community Corrections could provide for him; albeit with a discount in view of the current Pandemic.

7. These considerations decisively point in favour of an ICO as better addressing his risk of reoffending. Community safety favours that particular way of serving the term of imprisonment.

8. On the last occasion, I ordered that the term of imprisonment commence on the date of the remarks, being 2 July 2021, but that order was stayed. The direction for an ICO must be coincident with the date for commencement of the term for imprisonment.

9. Mr Paddison, please stand.

10. The stay on the aggregate sentence of a term of imprisonment of 2 years and 7 months’ imprisonment made on 2 July 2021 is lifted with the result that that term is to commence on 9 September 2021 and end on 8 April 2024.

11. The Court directs that the term of imprisonment is to be served by way of intensive correction in the community, of the same length as the term of imprisonment, subject to:

1. the standard conditions that:

1. you must not commit any offence; and

2. you must submit to supervision by a community corrections officer; and

2. the additional conditions, being:

1. a home detention condition, in accordance with the supervision plan identified in the sentencing assessment report of 24 August 2021;

2. a community service work condition requiring the performance of work for 250 hours; and

3. a rehabilitation treatment condition, requiring you to participate in programs and to receive treatment to alleviate your Post-Traumatic Stress Disorder (and Body Dysmorphic Disorder), either as recommended by Dr Rodriguez, in the report dated 24 June 2021 and/or as may be recommended by the community corrections officer, where that is not in conflict with Dr Rodriguez’s suggested plan.

12. You are directed to forthwith attend the Mount Druitt Community Corrections Office to enable Electronic Monitoring Equipment to be fitted.

13. You should understand that the effect of these orders is that instead of serving your term of imprisonment in full-time detention, you will be serving the term in your accommodation, but this is subject to your complying with the conditions that I have outlined. If you are in breach of those conditions, you are liable to serve the balance of your term in gaol.

**********

Decision last updated: 09 September 2021