R v Raouf

[2021] NSWDC 384

District Court

New South Wales

Medium Neutral Citation:	R v Raouf [2021] NSWDC 384
Hearing dates:	14 July 2021
Date of orders:	14 July 2021
Decision date:	14 July 2021
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	(1) I dismiss the Conviction Appeal (2) The conviction and Order for Costs, if any, be set aside. (3) I find the offence proved. (4) Pursuant to sections 9(1)(b) and 10(1)(b) of the Crimes (Sentencing and Procedure) Act 1999 (NSW) without proceeding to conviction I discharge the offender to a Conditional Release Order with a Bond to be on good behaviour and of standard conditions, and to appear for conviction if called upon for any breach occurring, for a period of 1 year commencing today. (5) The Bond is to be subject to the following additional conditions: (a) The offender is to keep the Registrar of this court advised of any change of his residential address.
Catchwords:	CRIME — Police powers SENTENCING — Appeal against sentence
Legislation Cited:	Crimes Act 1900 (NSW) s 51B Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 3, 4, 5, 7, 11, 12, 13, 14, 17, sch 1 Crimes (Sentencing and Procedure) Act 1999 ss 3A, 9(1)(b), 10(1)(b) Road Transport Act 2013 (NSW) ss 223
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Muldrock v The Queen (2011) 244 CLR 120 Prior v Mole (2017) 261 CLR 265 R v De Simoni (1981) 147 CLR 383
Category:	Principal judgment
Parties:	Crown – Regina Offender/Appellant – Koray Pertev Raouf
Representation:	Crown –Ms Bhat, ODPP Offender/Appellant – Mr Chhabra instructed by Mr Khan (Sydney Criminal Lawyers)
File Number(s):	2020/00121050
Decision under appeal	Court or tribunal: Local Court of NSW Jurisdiction: Criminal Citation: N/A Date of Decision: 24 March 2021 Before: Mulroney LCM File Number(s): 2020/00121050

Judgment (EX TEMPORE - REVISED)

CONVICTION

1. On 24 March 2021 at the Local Court Bankstown, Mulroney LCM determined to convict the appellant of an offence under s 17(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’). He was convicted, as owner of a motor vehicle for refusing to identify, when required by Police to do so, the driver or passenger in relation to an indictable offence concerning the driving of that motor vehicle.

2. The facts of the appellant being the owner, and of the vehicle having been involved in a police pursuit and failing to stop, an indictable offence under s 51B of the Crimes Act 1900 (NSW), are not disputed. The particulars of the offence described in the Court Attendance Notice read as follows:

"Did being the owner of a vehicle who is requested by a police officer to disclose in accordance with s 14 the identity of the driver of, or passenger in or on, the vehicle must disclose the identity of any person, the owner knows or has reason to suspect was the owner or a passenger or as much of the driver's/passenger's identity as is known to him or her."

The s 14 referred to is s 14 LEPRA.

3. There is no dispute as to the facts set out in the statement of Leading Senior Constable Matthew Tracey, Bankstown Highway Patrol. Those facts include the following which serves as the background for the subject of the appeal but not precisely the offence.

4. On 21 February 2020, Officer Tracey whilst operating a fully marked highway patrol vehicle and exercising ProLaser LiDAR in a location where the legal sign posted speed limit was 50 kilometres per hour, detected a silver Volkswagen R32 motor vehicle travelling at 87 kilometres per hour. During the police pursuit, which followed, the motor vehicle travelled up to 110 kilometres per hour on suburban streets signposted as speed limited to 50 kilometres per hour. When the pursuit reached Northam Avenue, the Volkswagen vehicle crossed to the incorrect side of the road to overtake several cars and was driving dangerously. Due to the manner of driving of the person in control of the Volkswagen motor vehicle, Officer Tracey self-terminated the pursuit for safety reasons.

5. On 23 February, Officer Tracey attended the registered address of the owner of the vehicle, which is the address of the appellant. He observed the vehicle a few doors down from the address, parked in the street. So far as it is relevant, there were no physical markings on the vehicle indicating break and enter of it in association with its theft. The entire interaction between Officer Tracey and the appellant was recorded on police bodycam, but I do not need to go to the detail because the facts, as set out in the officer's statement, are not disputed.

6. I will go to it with brevity, but the whole of the officer's statement has relevance. To the extent that I go to the facts therein, I will satisfy the requirement to do so for the purposes of the argument of statutory interpretation as it is put in the appeal.

7. Officer Tracey identified himself as a police officer and provided the appellant with his contact details having informed the appellant that he was trying to find out who was driving the Volkswagen motor vehicle during the event. On 23 February 2020, Officer Tracey emailed the appellant and within that email was the following:

"As previously discussed, you need to advise me of who was driving your vehicle DME47A on Friday, 21 February 2020 at 3.42pm at Edward Street, Bankstown when it was involved in a police pursuit. Again, if you fail to provide a name and address of the driver or custodian of the vehicle, you are committing an offence and will be charged. Or if you provide false or misleading details, you will also be charged.

I have given you until lunchtime (12pm) Wednesday 26/2 to comply with this request.

If you have any questions, please let me know.”

8. Three days later on 26 February 2020 at noon, Officer Tracey received an email of the following content from the appellant. This is an important email for the purposes of consideration of this appeal. Counsel for the appellant focuses on the words within it in a central way in the making of his argument by the written submission MFI 1 and in oral argument today. The contents were:

"Morning Officer, I hope you're well. I'm writing to you to inform you that I did my best to investigate who stole my car without my knowledge or permission, via taking my keys from one of the uni common rooms, but I have had no luck, this whole situation has made me extremely distressed and anxious because you said I'd get in trouble even though I had no knowledge of what's gone on. I've had to go to the psychologist, I'm sorry I can't help provide information that I was never in possession of, and I tried my best to find out but I couldn't."

9. Before returning to the facts, it is important to note from the email that the appellant informed the officer that he had done his best to investigate who stole his car without his knowledge or permission and also that he provided the information of taking his keys from one of the university common rooms.

10. In subsequent communication, Officer Tracey informed the appellant that "in that case" he would need to speak to the appellant to obtain a statement regarding what the appellant had disclosed in that information and Officer Tracey provided the times when he would be available. He received no response and sent a follow up inquiry by email.

11. On 26 March 2020 at 2.44pm, the appellant sent the following email to Officer Tracey:

"Hello Officer Tracey, I hope you're well, I have told you all I know, do I still need to make a statement?"

12. On 29 March 2020, Officer Tracey's email confirmed that a statement from the appellant was still required and Officer Tracey requested the appellant come and see him at Revesby Police Station to make that statement regarding the matter. Officer Tracey informed the appellant by his email of 7.14 on 29 March 2020, that:

“If you do not make the statement about the matter I will be forced to take the matter further.”

Officer Tracey again provided details of his location and times available as well as his mobile telephone number. A week later on 7 April 2020 the appellant responded enquiring if the officer was working on particular days.

13. The officer on 10 April replied in the affirmative and gave the appellant his available times of the day. There was no further contact. The appellant did not arrive for the making of a statement with police.

14. On 22 April 2020 Officer Tracey sent the appellant an email informing him that he had failed to comply with requests for a statement regarding the alleged stolen vehicle and that he had been left with no option other than that the appellant was being charged with the offence the subject of this appeal.

15. The Exhibit 3 below is the document entitled, “Form of Demand.”

16. It is dated on the occasion of the first attendance of Officer Tracey upon the appellant at the appellant’s residence referred to in the above facts, that is, 23 February 2020. The document is signed both by Officer Tracey and by the appellant. The significant question and answer of the Form is:

“Q. I now require you to supply me with the name and address of the driver at the stated date and time. I warn you that failure to comply may be an offence.

A. I don’t know who was driving at the moment but I can try to find out.”

17. It is apparent from the Form of Demand, that it was the appellant who offered to try to find out. This is as their communication of that day was recorded in Officer Tracey’s statement which was Exhibit 1 below and about which there is no contest. During cross-examination of Officer Tracey in the hearing below, the facts contained within his statement, Exhibit 1, were not put in doubt. It is appropriate that the appellant has conceded those facts in this appeal hearing.

18. During re-examination at transcript 6 lines 10 to 15 the officer gave the following evidence.

“Q. In relation to that investigation could you explain why further investigation wasn’t conducted on people that may have been in that uni (as said) room?

A. I asked the defendant on numerous occasions to clarify these details and to attend to give him his statement so I could investigate that investigation but that wasn’t forthcoming.”

19. Before the Learned Magistrate, it was submitted that the main point in issue was whether or not a reasonable excuse existed for the appellant in the circumstances: transcript p 7 line 5. As he is entitled to do in this appeal the appellant’s counsel dealt with the proposition of reasonable excuse. Whilst putting, as I understood him, that the point was not central because the offence is not that the appellant failed to provide particulars of a reasonable excuse but rather the offence is that he failed to comply with the disclosure required under s 17 LEPRA.

20. The appellant did not give evidence below. He is of course entitled to silence and I remind myself of the direction in that regard, that his exercise of the right in no way fills gaps is an admission or can be used against him, it being the onus upon the Crown alone to prove the offence to the high standard of beyond reasonable doubt.

21. LEPRA provides the following helpful definitions which are of assistance for construction of s 17. Section 3 provides: ‘Identity’ of a person means the name or residential address of the person (or both). Plainly ‘identity’ used in ss 14 and 17means name or residential address or both of the person. The word ‘function’ in s 3 is defined to include, “A power, authority or duty.” Approach to interpretation of s 17 is further assisted by ss 4, 5 and 7. Section 4 provides that unless otherwise provided LEPRA does not limit the functions, obligations and liabilities that a police officer has a constable at common law or pursuant to an Act or regulation in sch 1 and also all functions police officers may lawfully exercise.

22. Schedule 1 of LEPRA includes the Crimes Act 1900 (NSW). It is not disputed that the appellant’s vehicle was involved in the police pursuit. Police pursuit is an indictable offence pursuant to s 51B Crimes Act 1900 (NSW). Ss 4 and 5 describe a broad range of powers, authorities and duties. Section 7 provides that nothing in the Act limits any functions or prevents a police officer from exercising any functions that the police officer has under any other part of this Act.

23. Plainly ss 3, 4, 5 and 7 provide that construction of s 17 is improperly approached if read to limit police functions, obligations, duties to investigate the indictable offence of police pursuit on 21 February 2020. I note, as well, that general powers of police to require identity to be disclosed are set out in ss 11, 12 and 13 of the Act.

24. I turn now specifically to s 17. The section uses the word ‘identity’ and in no part is limited to name of a person. In that way, in my opinion, the appellant’s arguments misconceive the construction of s 17 and, in particular, would if accepted, limit the statutory purpose of the provision in regard to police powers of investigation. Section 17(1) provides that an owner of a vehicle who is required in accordance with s 14 by a police officer to disclose the ‘identity’ of the driver of or passenger in or on the vehicle must (unless the owner has a reasonable excuse for not doing so) do the things set out in s 17(1) (a) and (b). There is no dispute that the appellant as owner of the vehicle was required by Officer Tracey, a police officer in accordance with s 14, to disclose. I have already referred to the appellant’s submission of name of person and that in my view, that it improperly confines the meaning of ‘identity’. ‘Identity’ is used in the Act as I have referred to, from the s 3 definition.

25. Section 17(1)(a) is important so I will quote it precisely:

“disclose the identity of any person the owner knows or has reason to suspect was the driver or a passenger.”

26. Plainly the obligation to disclose in that subpart of s 17(1) includes the name or residential address or both of the person and it is not restricted to an individual. It is expressly so broad as to mean, any person that the owner knows or has reason to suspect was the driver or a passenger. In Prior v Mole (2017) 261 CLR 265 the High Court dealt with what is meant by the words ‘suspicion’ and ‘belief’. Whilst the Court was there dealing with the states of mind of police officers, in my opinion, that which was said by Gageler J at para 24 assists with interpretation of the words “reason to suspect” in para 17(1)(a) LEPRA. His Honour said “Belief is more than ‘suspicion’: it is not merely an ‘apprehension’ or even a ‘fear’; it is an actual ‘inclination of the mind’”. His Honour continued that the belief and suspicion to which he was referring is to be formed upon the objective circumstances. Of course for the police officer under the Northern Territory legislation there it was belief rather than suspicion which was central to the Court’s consideration.

27. The significance however of that which was said, is that s 17(1) does not require there be a belief in the owner of whom the enquiry is being made but only a reason to suspect. The reason to suspect in this case, according to the appellant’s own email to the officer at noon on 26 February 2020, arose from, as he put it, “taking my keys from one of the uni common rooms”. They were circumstances upon which by his disclosure the appellant had sufficient reason to suspect that he offered to do his best to investigate who stole his car, meaning to investigate the identity of the driver.

28. It was not correctly put by the appellant in oral argument this morning that the email showed that the appellant was left with the task. I have gone to Exhibit 3, Officer Tracey’s police statement concerning the conversation on 23 February 2020 and to the appellant’s email of 26 February 2020. The appellant presumed to undertake the investigation. Indeed, Officer Tracey’s subsequent emails confirmed that the appellant’s inquiry was not enough, that the appellant was required to attend for the making of a police statement and to be interviewed. Those communications were against the proposition that police rested with the appellant’s own investigation. To have done so, indeed, would have been to surrender rights of investigation available to police pursuant to LEPRA. That surrender did not occur.

29. I have referred to the communications following that email at noon on 26 February 2020. The strong inference arising from them, to the level of beyond reasonable doubt, is that the appellant failed or refused a demand properly made upon him by a police officer under s 17 of LEPRA to disclose information. But more is required in consideration of the statutory construction, and in my opinion it confirms that which I have said.

30. Section 17(1)(a) is followed after the disjunctive “or” with s 17(1)(b) which provides as follows:

“If the owner does not know the full and correct identity of the person - disclose such information about the person’s identity (such as an alias used by the person or the general location of his or her residential address) as is known to the owner.”

Section 17(1)(b) is wholly against the appellant’s submission that the police power to require disclosure is limited to the names of a person or persons. It expressly, with the words “general location of his or her residential address” reminds us of the meaning of the word “identity” given in s 3, to which I have referred.

31. The appellant wrongly argues that because he did not know the correct identity of the person, s 17(1)(b) applied directly to his circumstance. According to his argument, he was not then required to provide a name because he did not know the name. But that is exactly the conundrum that the sub-subsection serves. The requirement upon him in the circumstance was to disclose such information about identity as was known to him. He did know information. He knew that he had reason to suspect that a person taking his keys was a person with access to his keys. The location of his keys, other than as described by him in his email of 26 February 2020 “from one of the uni common rooms”, was not provided. He denied police the opportunity of investigating the meaning of “one of the uni common rooms”.

32. It is obvious that the first enquiry one might make is: which common room? It is obvious that ‘identity’ included the address and location of that common room. Information falling within s 17(1) (b) included disclosure of the circumstances of who had access to keys at that location.

33. Next the appellant submitted that it is not enough if he knew a class of persons associated with access to the keys. It was put that the class was indefinable. But that argument exposes the failure to disclose. Firstly, the police did not surrender their powers of investigation to the appellant such that he could respond in the style, “Well I’ve made my investigations and to the best of it I have no knowledge of who stole my car without my knowledge or permission”, as he did on 26 February 2020. Secondly, that very statement offers two new issues of “knowledge” and “permission” and that the taking was without it. These are matters that police were entitled to investigate. I repeat s 17 powers of investigation are not to be read in a limited way.

34. Before leaving this point I go to MFI 1, the appellant written submission, because in oral argument the appellant specifically pressed reading paragraphs 16 and 17 of those submissions. Paragraph 16 argues that it was not incumbent upon the appellant to provide a statement as to the theft of his vehicle, and then it says:

“True it is that a statement may have assisted the OIC’s investigation into ultimately determining the identity of the driver on 21 February 2020, but that is not the test in s 17 of LEPRA, which is directed towards the identification details or particulars of a particular person the appellant had reason to suspect had access to the vehicle.”

35. The submission is misconceived. The offence is failure to disclose. The evidence is of a refusal or failure to attend police to answer further questions or to provide further information as would occur in the course of the taking of a statement. The case is not prosecuted on the basis of a failure to provide a formal statement. Next, follows the sensible concession, that providing the statement “may have assisted” the police investigation into ultimately determining the identity of the driver. That is a concession of information which police properly sought to be provided, and the appellant failed or refused to provide. With respect to the submission, that was the test of compliance under s 17 of LEPRA.

35. Even the address and location of keys, being the proximal location of address of persons who might have been the subject of enquiry was not provided. It was a matter for police whether or not, on provision of that information, the pool of possible persons was so infinite that they may or may not have continued to investigate. But there is nothing in the evidence that is supportive of an assumption by inference, other than of a refusal beyond reasonable doubt to participate in disclosing information, necessarily inferred by the content of the appellant’s email of noon 26 February to have been, within his possession.

36. That submission 16 argues that the obligation is confined to disclosure of “details or particulars of a particular person” ignores the purposes of the section. Indeed if the obligation under s 17(1) was to be limited to the conclusions of the owner it would defeat the purpose of the statute. That purpose is for the owner to provide information upon which, through investigation, police might pursue investigation of the driver and/or passengers proximal to the indictable offence.

37. In para 17 of the appellant’s written submission the following is provided:

"For example, had the appellant claimed in his formal police statement that a 'John Smith' had threatened multiple times to steal the vehicle, that would have assisted the police’s investigation and may have led to the determination through further investigation that the driver on 21 February 2020 was in fact John Smith. However, the provision of that name would not be one that is in compelled compliance with s 14 and 17 of LEPRA because, without more, the appellant would have no reason to suspect John Smith had access to the vehicle.”

39. I disagree strongly with the submission. That John Smith had threatened multiple times to steal the vehicle and that, that information would have assisted the police investigation and may have led to the determination, through further investigation, that the driver on 21 February 2020 was John Smith, was information plainly falling within the terms of s 17(1)(b). That is the very reason why that subsection uses the broad expression “Such information”.

40. Finally on the point of statutory interpretation, I turn to s 17(3) which provides:

“Without limitation, for the purposes of this section, an owner has reason to suspect a person was the driver of or a passenger in or on, a vehicle, if the person has reason to suspect that a person had access to the vehicle.”

41. Plainly subs (3) meets with the interpretation, I have found for s 17(1); that the circumstances of the location of keys and of persons with access to that location, whether it be by attendance at wherever the keys were or by proximal residential address, perhaps by accommodation at that place; was information required to be disclosed by s 17(1)(b).

42. Subsection (3) makes it clear that disclosure for the purposes of police inquiry, not the appellant's inquiry was required. It was not to be limited to the appellant’s inquiry. The obligation was to disclose information about access to the vehicle, meaning access to the keys, as might assist police in investigating persons with that access at about the time of the offending. The obligation under s 17(1) was not, as was put orally today and in written submissions by the accused, an obligation limited to the provision of names of particular persons.

43. For the reasons given, I dismiss the Conviction Appeal.

SENTENCE

44. The offender has been unsuccessful in his appeal against conviction for the offence under s 17(1) LEPRA. The date of the offence was 23 February 2020 and the maximum term, being the statutory goalpost in the Local Court was imprisonment of 12 months and/or a fine of 50 penalty points. The sentence appealed from was a fine of $750. Application is made that I proceed by s 9(1)(b) and s 10(1)(b) of the Crimes (Sentencing and Procedure) Act 1999 (NSW).

45. The Crown refers in response to this application by the appellant that he has a very poor record of driving for a person of his age, that he is not entitled to any discount on the basis of plea, and emphasises that the offending was deliberate. It is conceded that there is no prior criminal history.

46. The facts of the offending are referred to in my earlier judgment in relation to the conviction appeal; but in essence, I found the offender guilty of inadequate disclosure amounting to non-compliance with his obligation to disclose information concerning the driver of his motor vehicle on 21 February 2020, at or at about the time that it was detected by Senior Constable Tracey of the Highway Patrol, to be speeding and when its driver entered into a police pursuit which was ceased because of the dangerous conditions of the driving. Those conditions included overtaking of across lane lines and travelling at 110 kilometres per hour in 50 kilometre per hour zoned residential streets. That offence is an indictable offence under s 51B of the Crimes Act 1900 (NSW).

47. A first offence under s 51B would carry a maximum penalty of imprisonment of three years. I refer to that not because of breach of De Simoni principles. I am not for one moment contemplating that the penalty for that indictable offence has any measure of relevance to the seriousness of this offending, the subject of the severity appeal. I refer to that offence only to place this subject offending in the context of the purposes of ss 14 and 17 of LEPRA.

48. A failure to disclose to police pursuant to those provisions inevitably is an impediment to police investigation, and to that extent an affront to the administration of justice. Non-compliance with s 17 of LEPRA is a significant offence. The statutory goalposts in the Local Court and in this Court describe the community’s intention that it be considered in that way.

49. Considering the objective seriousness of the offending, it cannot be said that the offender refused any assistance to police. Whilst the Crown appropriately described his failure to cooperate with further disclosure as deliberate, I consider it to have been misconceived as opposed to belligerently oppositional to police authority.

50. In essence the offender failed to complete his obligation to disclose because he foolishly formed in his own mind the misconceived perception that he had done enough.

51. I am fortified in my observation of the circumstances of the offending to have been a failure to complete his obligation to disclose in circumstances of his personal failures of ability to trust and to comply further with that direction. In saying this I do not confuse the obligation to assess objective seriousness on the circumstances of the offending alone. Objective seriousness is not assessed by incorporation of the subjective matters.

52. I stated my assessment of the objective seriousness beforehand. I secondly voice the observation that when one proceeds into the subjective considerations, one finds a consistency confirming my assessment of objective seriousness, arrived as it was discretely on the facts and circumstances of the actual offending, and the conduct of the offender at the time towards Senior Constable Tracey.

53. Breach of s 17(1) is not a trivial offence. I have addressed that; but because the offending arose from a misconceived failure to complete the obligation to disclose, I assess the objective seriousness in the low range for offending of this type.

54. The antecedent history of traffic matters to which the Crown properly directed the Court, indeed displays serious problems with the offenders ability to comply with road rules. He obtained his learners licence in 2015, his first provisional licence in 2016 and his provisional 2 licence on 24 July 2017. His licence was thereafter for periods over the short passage of history until the present, suspended and reissued. He has been on an unrestricted class C licence only since 8 March 2021. It appears that he regularly speeds and breaks road rules, such that by demerit points, his P2 licence was suspended on 13 February 2018 for three months.

55. On 3 June 2020, his unrestricted class C licence was suspended by police pursuant to s 223 of the Road Transport Act 2013 (NSW). That provision permits the Commissioner to suspend a licence of a driver who, in the Commissioner’s opinion, is incompetent, reckless or careless. There are other grounds which I would assume do not apply here.

56. However, the subject offence is not by character a traffic offence. More relevantly the offender has no history of offences of dishonesty. Bluntly put there is no like prior offending in his antecedent history.

57. Accordingly, whilst his driving record is appalling and displays some disregard for the law in very serious ways because we all are aware of the consequences of such driving; it is not highly persuasive in consideration of sentencing for the subject offence.

58. The documents tendered by the defence including in particular Exhibits A, B, C, D, E and most notably Exhibit G well establish circumstances of hardship and mental health issues. I say that at the outset because the subject offending is of that character which I described as an affront to the administration of justice. General deterrence, retribution and denouncement are typically paramount considerations. I will return to those considerations.

59. The offender is presently only 22 years of age. He is studying full time at Open Universities Australia, toward the obtaining of his Bachelor of Business. He initially completed almost two years of that course at the University of Western Sydney, but because of difficulties associated in his life at the time, he is continuing the course remotely.

60. The testimonials and the report of Dr Borenstein, refer to the offender’s great disappointment that his very much desired job working at Westpac was denied him because of the subject criminal offence conviction.

61. It is not an appropriate consideration of sentencing to manipulate application of appropriate principles under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), in order to win the offender employment. Nevertheless, the Exhibit H Westpac correspondence confirms that event did occur when the bank requested a criminal record background check.

62. It is evidence of hardship that he has experienced already consequent of his offending. To his great credit, reported in testimonials from his grandmother, his partner, and his aunt, the offender cares for his elderly grandmother and looks after his aunt. They are people of substantial needs. A letter from Ms Shane May, provides excellent reference of him as a worker, she being his manager at CitizenBlue Depot. A letter of reference from Noah Phelan, an old school friend, reports that when Mr Phelan’s waterproofing business had slowed consequent of the effects of the coronavirus pandemic, the appellant offered and completed days of work for free trying his best to help Mr Phelan’s business to survive those times.

63. He has for some years suffered from diagnosed post-traumatic stress disorder, anxiety, depression and attention deficit hyperactivity disorder. I will go in some detail to those matters.

64. I am satisfied on the evidence presented to me that apart from the subject offending the appellant is not a person of good character, he is a person of excellent character. His maternal grandmother who he helps is very sick. She is agoraphobic. The Court has through its experience some knowledge of agoraphobia and Mr Borenstein in his report, 30 June 2021, Exhibit G, reports the not unexpected very difficult circumstances of living with and helping that grandmother. The hardship of upbringing to which I referred is that the offender was raised from a very young age in an abusive household and he experienced significant physical violence against himself. He lives with his grandmother because he has very little contact with his parents.

65. Without going into long detail of circumstances which Courts sentencing people too often see; in his particular circumstances whilst in term 3 of year 9 high school he went to police to report physical abuse. He showed police his bruises. His mother was charged and he went to live with his father. His father was unsupportive to say the least and that is where he progressed to living with his grandmother in more recent years. There is substantial comment of pain due to injuries suffered whilst playing sport, which I do not consider highly persuasive of relevance to present consideration of sentence. What arrives from that history is that sport was his escape from the difficulties of life in which he grew. He became a person who was quiet, reserved and unable to trust others.

66. As I have said, the deliberate but misconceived failure to complete his obligation of disclosure, and one might call it a failure to co-operate with Officer Tracey to the extent that the law required, would appear on reasonable consideration to be partially informed by the appellant’s psychological ill health and maladjustments including inability to trust others. He is a person of very few friends. Test results of his personality, anxiety and depression are set out by Mr Borenstein. Suffice to say that those tests confirmed results which were moderate for symptoms of depression, extremely severe for symptoms of anxiety and mild for symptoms of stress. Mr Borenstein opined that the symptoms predict a lack of trust for the world and people.

67. In my opinion, that the appellant is troubled, anxious and depressed with trust issues which circumstances are fairly to be understood as moderating the culpability of his offending: Muldrock v The Queen (2011) 244 CLR 120. His deprived upbringing including suffering extensive physical assault from an early age, including when attempting to defend his siblings, is hardship moderating the culpability of his offending, as recognised by the High Court in Bugmy v The Queen (2013) 249 CLR 571. Those matters moderate of the s 3A considerations to which I referred of deterrence, rehabilitation and denouncement in sentencing. In my opinion the appellant is not an appropriate medium for making an example to others: Muldrock supra at para 53.

ORDERS

68. For those reasons the appellant is successful in his application that I proceed to sentencing, pursuant to the provisions of ss 9(1)(b) and 10(1)(b) of the CSP Act. The orders I make are as follows:

1. The conviction and Order for Costs, if any, be set aside.

2. I find the offence proved.

3. Pursuant to sections 9(1)(b) and 10(1)(b) of the Crimes (Sentencing and Procedure) Act 1999 (NSW) without proceeding to conviction I discharge the offender to a Conditional Release Order with a Bond to be on good behaviour and of standard conditions, and to appear for conviction if called upon for any breach occurring, for a period of 1 year commencing today.

4. The Bond is to be subject to the following additional conditions:

1. The offender is to keep the Registrar of this court advised of any change of his residential address.

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Decision last updated: 17 August 2021