R v Richard Schaaf
[2025] NSWDC 444
•30 October 2025
|
New South Wales |
Case Name: | R v Richard Schaaf |
Medium Neutral Citation: | [2025] NSWDC 444 |
Hearing Date(s): | 17 October 2025 |
Date of Orders: | 30 October 2025 |
Decision Date: | 30 October 2025 |
Jurisdiction: | Criminal |
Before: | Mahony SC DCJ |
Decision: | Intensive Correction Order imposed. For orders see [79]-[86] |
Catchwords: | SENTENCE – Stalk/intimidate intend fear physical etc harm – Assault occasioning actual bodily harm in company of others – Aggregate sentence – Intensive Correction Order |
Legislation Cited: | Crimes Act 1900 (NSW) |
Cases Cited: | Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 |
Category: | Sentence |
Parties: | Richard Schaaf (the offender) |
Representation: | Counsel: |
File Number(s): | 2021/00124978 |
Publication Restriction: | Nil. There is however a non-publication order regarding the name of the co-accused who is referred to as MS |
REMARKS ON SENTENCE
The offender who was born in 1992 is to be sentenced in respect of the following offences for which he has pleaded guilty:-
Count 1 – Offence pursuant to s13(1) of the Crimes (Domestic and Personal) Violence Act 2007 (NSW) (“the CDPVA”) of stalk/intimidate intend fear physical etc harm. The maximum penalty for this offence is 5 years imprisonment and/or $5,500 fine and there is no standard non-parole period prescribed.
Count 2 – Offence pursuant to s59(2) of the Crimes Act 1900 (NSW) (“the CA”) of assault occasioning actual bodily harm in company of others. The maximum penalty prescribed for this offence is 7 years imprisonment and there is no standard non-parole period prescribed.
The offences occurred on 14 April 2021, and the offender was arrested on 5 May 2021. At the time of the offence the offender was subject to an Intensive Correction Order (“ICO”) and Community Correction Order (“CCO”). The ICO had been imposed for a period of 2 years and 2 months commencing on 21 March 2021 for offences of knowingly direct activities of criminal group and supply prohibited drug greater than the indictable quantity. The CCO had been imposed for a period of 18 months, commencing on 1 September 2020 for an offence of stalk/intimidate intend fear physical etc harm (domestic).
The ICO was revoked by order made on 1 June 2021 with effect from 14 April 2021. The offender was therefore in custody serving a term of imprisonment for those offences for a period of 1 year, 4 months and 25 days. He was bail refused from the date of his arrest on 5 May 2021 until 11 August 2022 and has spent 1 year, 3 months and 7 days (464 days) in custody in respect of the index offences.
The sentence hearing
The sentence hearing took place on 17 October 2025. The Crown Sentence Summary became Exhibit A and included a Statement of Agreed Facts which may be summarised as follows.
On or about 14 April 2021, a co-accused MS organised for a supply of 2 kilograms of cocaine to another drug dealer referred to as “Person A”. Person A took the 2 kilograms of cocaine and handed over a block of paper of $50 notes on one end and otherwise contained blank paper instead of $660,000. MS held Stuart MacGill (“the victim”) responsible for Person A’s theft of the drugs because he had introduced MS to Person A. On 14 April 2021, MS met with the victim telling him that the victim needed to pay money to cover the theft or provide information as to the whereabouts of Person A. The victim denied responsibility for the debt left by Person A’s theft.
The conduct constituting the two offences commenced on 5:50 p.m. on 14 April 2021 when a co-offender, Frederick Schaaf was tasked to drive from his home in the Sutherland area to Cremorne with the intention of intimidating the victim into providing money or information about the whereabouts of Person A. The offender joined the co-offender, and they left Caringbah arriving at Cremorne just before 7 p.m.
At about 6:24 p.m. another co-offender, Feilo went to Bunnings at Rouse Hill and purchased a pair of long handled garden shears, three sets of gloves, cable ties and rope. The garden shears were later found in Frederick Schaaf’s car. Feilo then travelled from Rouse Hill to Bringelly arriving there at 7:20 p.m.
Throughout the afternoon and after the second meeting with the victim, MS waited outside the victim’s apartment building in Cremorne in his car. At about 7:00 p.m. the victim escaped his apartment in the boot of another resident’s car, met with friends and went to a friend’s house nearby. The victim was then lured back to his apartment by MS just before 8:00 p.m. under the guise of looking at photographs to identify Person A. The victim met MS on a street close by his home and MS took his phone and said, “The big guys are here to see you”. The victim kept walking towards his home and came across the offender who was standing in the street outside of a car. The offender said to the victim, “I don’t want to hurt you, we know you have nothing to do with it, we just want to talk to you, get in the car”. The victim resisted and the offender said, “Don’t make it difficult” and placed his hand on his own waist.
It is an agreed fact that the victim got in the car because he thought that gesture meant that the offender had a firearm. The victim did not see a firearm, nor did he communicate his belief to either the offender or co-offender and the Crown does not contend that the offender intended to imply possession of a firearm. Nor does the Crown contend that either offender or co-offender had a firearm. Nor does the Crown contend that either offender or co-offender actually knew or were reckless to the victim’s lack of consent to enter the car.
The victim got in the car and the offender sat next to him. The offender said, “We’ve got a problem because they (a reference to the drugs) were mine”. However it is not contended that the offender was actually involved in the failed cocaine deal or that the drugs in fact belonged to the offender.
The victim told the offender that the drug deal had nothing to do with him. The offender asked the victim about the whereabouts of Person A and the victim told him that he had been trying to contact Person A all day without success.
The co-offender Frederick Schaaf drove the car from Cremorne to Bringelly arriving at about 9:00 p.m. The car pulled over and the co-offender Feilo got in the car with a bag containing the garden shears. Feilo was wearing a balaclava and sat in the front passenger seat. It is an agreed fact that the intimidation commenced at the time that Feilo entered the car.
The car was driven to premises at Bringelly, being an unoccupied house with a driveway which led to a shed. When they arrived the offender and co-offenders got out of the car leaving the victim in the car for about 10 minutes. The victim was then told to go to the shed, photos of which are contained in Exhibit A. The co-offenders demanded proof that the victim was not wearing “a wire” and searched the victim which caused him to be intimidated. The garden shears were placed on the floor near the victim, and the offender slapped the victim across the face causing him to fall down. The offender asked the victim again about the whereabouts of Person A and was told that he didn’t know where he was. The offender then said, “They want me to take your fingers” and said they needed $150,000 and asked where he would get it from and how long it would take. The offender then asked for the victim’s phone which was provided.
The offender and co-offender Feilo punched the victim multiple times in the head. In this assault the victim suffered a cut lip. The offender then said it was enough, and the co-offender Frederick Schaaf then asked the victim, “Are you ok?”.
The co-offenders and victim then returned to the car and Frederick Schaaf drove to Belmore arriving at 10:30 p.m. The offender then had a conversation with the victim by the side of the road telling him that someone would provide a phone to him the following morning and that he should not leave home. The victim then took a taxi back to his home and the next day told his partner what had happened. The matter was reported by way of formal report to police on 20 April 2021.
Exhibit A contained photographs of the garden shears and the inside and outside of the shed at Bringelly. It also included the NSW Police Force report of convictions relating to the offender. Omitting offences in the Children’s Court, in 2011 he was convicted of a traffic offence for which a fine was imposed. In 2012 he was convicted of various driving offences. In 2013 he was convicted of offences of drive whilst disqualified and police pursuit/not stop-drive dangerously-first offence for which he was sentenced to concurrent terms of imprisonment of 9 months with a non-parole period of 4 months imprisonment. In 2016 the offender was convicted of offences of intimidate police officer in execution of duty and excluded person fail to leave premises when required to do so for which he was fined.
In 2018 the offender was sentenced to the Conditional Release Order referred to above for an offence of drive motor vehicle during period of disqualification. In 2018 he was convicted of two offences of dishonesty for which he was sentenced by way of Community Correction Orders for periods of 12 months respectively. In 2019 a further Community Correction Order for 18 months was imposed for an offence of stalk/intimidate intend fear physical etc harm (domestic). In 2019 he was convicted of two drug related offences for which convictions were recorded but no other penalty pursuant to s10A of the Crimes (Sentencing and Procedure) Act 1999 (NSW) (“the CSPA”). On 25 March 2021 he was convicted of the two offences in respect of which the ICO referred to above was imposed by way of an aggregate sentence, namely knowingly direct activities of a criminal group and supply prohibited drug greater than indictable quantity but less than commercial quantity.
In 2015 the offender had a driving whilst disqualified offence in the Northern Territory for which he was fined.
Exhibit A included the sentencing remarks of Judge C Smith SC dated 25 March 2021 imposing the Intensive Correction Order for a period of 2 years and 2 months.
Exhibit A also included the breach report in respect of the ICO under the hand of Ms L Bennett dated 21 May 2021, and the order of the State Parole Authority revoking the ICO dated 1 June 2021.
Exhibit A also included the order rescinding revocation of the ICO on 7 September 2022 and a bail chronology.
The offender’s evidence
The offender tendered a bundle of documents which became Exhibit 1 and comprised four documents, Exhibit 1.1 to 1.4. Exhibit 1.1 is an affidavit of Mrs B Fifita sworn on 17 October 2025 who is the mother of the offender and co-offender Frederick Schaaf. She deposed to the family history in which the offender, as the eldest of 5 children was exposed to domestic violence perpetrated by her husband towards the deponent and the offender which was alcohol fuelled and regular. Both the offender and his brother were exposed to and experimented with drugs from an early age and exposed to violence in the community. When the offender was 17 years of age, he was subject to an assault in which he was stabbed 4 times in the stomach. The offender completed school leaving after year 12. His parents separated in 2012 when the offender was 20 years old. The deponent developed a number of health issues including severe chronic diabetes which requires regular monitoring and has suffered a heart attack and a kidney infection. She deposed that the offender has assisted her with transportation to all of her medical appointments and she remains in daily contact with him.
Ms Fifita deposed that since his release from custody, the offender has worked hard to turn his life around and has devoted himself to his family, work and 4 young children. She deposed that she has encouraged and provided support for her two sons to ensure that they do not offend again.
Exhibit 1.2 is an affidavit sworn by the partner of the offender setting out their relationship history. They have 4 children aged between 8 years and 1 year. Ms Miles deposed to the difficulties faced by the offender during his remand custody during the COVID-19 pandemic. For a period of 14 months the family were unable to see the offender.
Ms Miles provided particulars of the offender’s previous conviction for an offence of intimidate with intent to cause fear and harm for which he was convicted on 12 March 2020 and received an 8 month CCO. This concerned text messages exchanged between the offender and Ms Miles during a heated argument. She deposed that whilst the message exchanges were unacceptable, she had never experienced any physical violence from the offender, and she regarded the messages as empty threats said in the heat of the moment, and she did not ask for an AVO nor did she report the matter to the police.
Ms Miles also deposed to the difficulties the offender faced during his childhood and whilst he has been on strict bail conditions awaiting finalisation of these proceedings. Further she deposed that the publicity surrounding the offending significantly impacted on her family’s lives and that the 5 year delay since his arrest has caused significant distress and anxiety for the offender “physically, emotionally and financially”.
Since the offender has been on bail, Ms Miles deposed that he has been working in his brother’s concreting business and “he is doing everything he can to be a good citizen and not get into trouble with the law”. He now understood the gravity of his offending conduct and wishes to be a good role model for his two sons. Ms Miles deposed that the offender now regrets his actions and that she will do everything she can to ensure that he does not reoffend again.
Exhibit 1.3 is a testimonial from Mr C Tamplin dated 8 October 2025. Mr Tamplin writes that he has known the offender for the past 5 years having met him through a friend. He described the offender as “a very nice guy, who has committed his time to building a concreting empire with his brother” and who loves to network and win new business. Mr Tamplin stated that the offender has expressed deep regret for his offences, that he has learnt from this “life lesson” and expressed his belief that the offender will not re-offend.
Exhibit 1.4 is a letter from the offender dated 9 October 2025 expressing his apology for being involved in the two offences. He states that he regrets his actions and is remorseful about the decisions he made in April 2021. The offender outlined the difficult and onerous conditions of his remand in custody during COVID-19 in 2021 and 2022 and acknowledged that his childhood exposure to alcohol, drugs and violence from an early age had impacted on the choices that he had made.
The offender states that he wants to be the best person and father that he can be and contribute as a good member of his community. He expressed gratitude for the support of his family, accepting full responsibility for his offending and expressing his sincere apology to the court, the community, to his family and to the victim.
The Crown submissions
The Crown relied on a written and detailed outline of submissions setting out the procedural history and noting that the offender is entitled to a 25% discount in respect of Count 1 and a 5% discount in relation to Count 2 for his pleas of guilty.
The Crown noted the offender had spent 464 days in pre-sentence custody but submitted that for the entirety of the time bail refused, he was also serving a term of imprisonment after revocation of the ICO imposed on 21 March 2021. The revocation of that ICO was consequent on the commission of the index offences. The Crown accepted the Court’s discretion to backdate any sentence to be imposed. In doing so, the Court must give effect to the principle of totality to avoid the imposition of a disproportionate sentence.
The Crown submitted that in assessing the objective seriousness of the offence where there is a joint-criminal enterprise the Court must assess the degree of participation of the offender. The Crown referred to Somba v R [2012] NSWCCA 214 where Hall J held that it was necessary to refer to and take into account particular conduct of each participant in a joint-criminal enterprise with a view to determine the level of culpability for which each must be sentenced. The Crown referred to the judgment of Latham J in KR v R [2012] NSWCCA 32 with respect to the distinction between the offender’s responsibility for criminal conduct and his moral culpability for the offending.
The Crown submitted the following features were relevant to the assessment of objective seriousness of the offences:-
(a)The offences were not spontaneous and involved a significant degree of planning and organisation, as evidenced by:
(i)The surveillance of the victim by co-accused MS and attendance at his personal residence by Frederick Schaaf and the offender.
(ii)The use of a ruse to lure the victim back to his home where the offender and Frederick Schaaf were waiting.
(iii)The purchase by Feilo of items for use or possible use in the offending, namely a pair of long handled garden shears, three sets of gloves, cable ties and rope.
(iv)The victim’s phone was taken by MS from him to isolate him and prevent him from calling for help.
(v)Prior arrangements had been made for Frederick Schaaf and the offender to pick up Feilo in Bringelly, and on the way to Robinson Road, Bringelly.
(vi)Feilo was wearing a balaclava when he entered the car.
(vii)The victim was transported to an isolated and semi-rural property, approximately 70kms from his home.
(b)Regarding the intimidation:
(i)The victim was in the presence of three unknown males, unable to contact police or other parties for assistance.
(ii)The victim was taken to an unoccupied property and directed to go with the offenders to a dilapidated shed type structure.
(iii)On entering the shed, the offenders demanded proof the victim was not wearing a wire and searched him. This caused him to be intimidated.
(iv)Feilo put the garden shears on the floor near the victim.
(c)Regarding the AOABH:
(i)Extent and nature of the injuries:
The victim suffered a cut lip as a result of the assault.
(ii)Degree of violence:
Richard Schaaf commenced the conduct comprising the assault by slapping the victim across the face and causing him to fall down.
Richard Schaaf and Feilo punched the victim multiple times to the head. The assault ended when Richard Schaaf said words to the effect that “That’s enough”.
(iii)Intention of the offenders:
The offenders intentionally caused harm to the victim. The offenders were motivated by obtaining information as to the location of Person A, or $150,000 from the victim.
The Crown submitted that this offender had the most significant role and was the leader among the co-offenders. He had travelled with Frederick Schaaf from Caringbah to Cremorne and had engaged with the victim outside his home. Further the offender had sat next to the victim in the back seat of the vehicle and asked about the whereabouts of Person A. He had assaulted the victim by slapping him across the face causing him to fall down and was otherwise primarily engaged with the victim as evidenced by his questioning of the victim and him requesting and being provided the login to the victim’s phone.
The Crown submitted that the offender, with Feilo, punched the victim multiple times to the head and directed that the assault end. At Belmore, the offender told the victim that someone would come by the victim’s home the next morning with a phone and that he should not leave home. The offender had also participated, with the other co-offenders, in the search of the victim to ensure he was not wearing a listening device.
The Crown submitted that it was an aggravating factor pursuant to s21A(2)(c) of the CSPA that the offence involved the threatened use of a weapon, namely the garden shears.
The Crown submitted that the offender committed the offences whilst on conditional liberty being subject to both an ICO and CCO at the time of the offence. The Crown submitted this militated in favour of a sentence that reflects the need for specific deterrence as well as forming part of the assessment of the likelihood of reoffending on the offender’s part.
The Crown submitted that the offender’s criminal history disentitled him to leniency.
The Crown submitted that the threshold in s5 of the CSPA had been crossed and no penalty other than imprisonment was warranted in the circumstances.
In his oral submissions the Crown accepted the evidence of the offender’s mother that he suffered disadvantage in his childhood years. However it was submitted the offender had shown clear improvement in his life given that he had completed his schooling, the nature of his family arrangements and his care for his mother. The Crown submitted this evidence demonstrated he had an understanding of responsibility in his life in which he had enjoyed some measure of stability which allowed him to progressively take on responsibility as the eldest child. For these reasons, the Crown submitted the Bugmy principles were moderated to some degree. An example of this was the description of him at school as a “gentle giant”.
The Crown referred to the evidence of Ms Miles concerning adverse publicity arising from the offender’s arrest to submit that the extent and impact of the publicity was not of a type or nature to amount to a mitigating factor to a significant degree. There were three media clips constituting 51 minutes in which the accused’s name was not mentioned.
The Crown submitted that it was open beyond reasonable doubt to infer there was a degree of planning given the agreed facts. Whilst this could have been planning by others, the offender must have been appraised of it.
The offender’s submissions
Counsel for the offender relied on a detailed written outline of submissions noting that both offences were capable of being dealt with in the Local Court with the lower jurisdictional sentencing limit. Counsel noted that an indictable offence of specially aggravated kidnapping contrary to s86(3) of the CA had been withdrawn upon the offender entering pleas of guilty to the index offences. He had earlier offered to plead guilty to the offence of intimidation, but that offer was refused. Therefore he is entitled to a discount of 25% for Count 1 and 5% for Count 2.
Under the heading “Objective circumstances” counsel submitted that the offenders were engaged by somebody else to do a job (possibly MS or someone connected to him, although the evidence is silent as to whom). The Crown does not contend that the co-offenders were involved in any drug transaction. Rather, the intimidation offence is said to have commenced when Feilo entered the vehicle wearing the balaclava, the relevant criminal act for Count 1 being the search of the victim to ensure that he was not wearing a wire.
Counsel submitted that the victim felt intimidated because he thought the offenders might not trust him, which was contrasted with acts of intimidation, consisting of threats of physical harm. That search was not particularly long nor was inappropriate force used in it.
The offending in Count 2 involved a cut lip which constituted actual bodily harm. The specific conduct upon which the Crown relies is that the offender and co-offender, Feilo punched the victim multiple times to the head. It was submitted that this must mean that the offenders punched the victim at least two or three times but it is not possible to be satisfied beyond reasonable doubt that the punches were more numerous than that.
Counsel submitted that planning was not a significant aggravating feature in this case. The evidence concerning the surveillance of the victim by MS, the use of a ruse to lure the victim back to his home and the fact that MS took the victim’s phone could not be used to aggravate the offender’s offending conduct.
It was further submitted that by placing the garden shears on the floor near the victim so as to constitute a threat was not a finding available to be made beyond reasonable doubt. Although of the three co-offenders, this offender communicated and engaged with the victim most, it was submitted he became involved because he was engaged “to do a job and did not play the role of the instigator”.
Counsel referred to the evidence of childhood and adolescent disadvantage that engaged the principles in Bugmy v R and rendered him less morally blameworthy.
Counsel referred to the previous sentencing of this offender by Judge C Smith SC by way of an ICO. The offender accepted that his breach of conditional liberty warrants consideration, however the Court should exercise its discretion to afford him a full backdate, namely, to give him credit for the entire 490 day period of pre-sentence custody. Outside of the periods of actual custody, the offender had been on stringent conditions of bail, although those conditions had been relaxed between 25 March 2021 and his arrest on 5 May 2021 when he was serving his ICO in the community.
Counsel referred to the good qualities demonstrated by this offender who was capable of acting responsibly and looking after his siblings, mother, de-facto wife and children. Counsel relies on the evidence of Ms Miles who painted a portrait of a good man. He had not re-offended since being released on bail in September 2022, which supported, on the balance of probabilities, that he has good prospects of rehabilitation and is unlikely to re-offend. Counsel submitted that his progress and rehabilitation should not be interrupted by him being returned to prison.
In his letter of apology the offender had acknowledged the impact of the offending on the victim. He had accepted responsibility for his offending and expressed contrition for it.
Counsel also noted that during the period in which the offender was bail refused in 2021 and 2022, coincided with the COVID-19 lockdown periods. Therefore his 490 days of pre-sentence custody ought to be regarded as longer and more severe than custody served in normal circumstances. It was submitted that a period of further incarceration would have an adverse impact on his wife and children which, whilst not constituting exceptional circumstances, would justify some weight in the mix of subjective circumstances relying on Carter v R [2018] NSWCCA 138 at [68]-[70].
Counsel referred to the 4.5 years the offender has been either on remand bail refused or subject to highly restrictive bail conditions as relevant to both backdating the sentence and moderating its length. When granted bail on 11 August 2022 he was subject to a curfew, a prohibition on him communicating with the co-accused which included his brother, Frederick and cousin Elijah, an abstinence condition and a prohibition on him using an internet capable mobile device. These conditions were endured for years in relation to a charge that was ultimately withdrawn. If he had been initially charged with the offences which he is now being sentenced, it was submitted he would not have been subject to such strict bail conditions, and the proceedings would have reached a conclusion much earlier.
Counsel submitted that the appropriate disposition is a sentence which does not require the offender to return to custody. He had now been on bail for more than three years without re-offending and his rehabilitation is progressing well. He has family support in the community, and his risk of re-offending is diminishing.
Counsel submitted there ought to be substantial concurrency between the sentences which are to be discounted by 25% and 5% respectively. In the event of a full-time custodial sentence, a finding of special circumstances was warranted because of the long delay, COVID-19 era custodial hardship and to ensure the offender has adequate time for supervision on parole. Giving full credit to his pre-sentence custody would produce a commencement date for the sentence of 14 June 2024, however the Court had a discretion to make allowance for the strict bail conditions referred to above.
In his oral submissions, counsel referred to the genuine remorse expressed by the offender in his letter of apology and accepted that publicity regarding this matter did not amount to extra-curial punishment as a significant mitigating factor.
Counsel rehearsed his submissions regarding backdating of any sentence.
With respect to the assessment of objective seriousness of the offending, counsel submitted that it was not necessary that the Court would find a point on a notional range of seriousness. The agreed facts involved a degree of vagueness, for example regarding the number of punches to the head of the victim. On the other hand, the offender had an impressive subjective case which demonstrated he was capable of acting in a responsible way. It was submitted that his risk of re-offending had diminished, he was now 33 years old and had taken on increasing family responsibilities. Counsel rehearsed his submissions regarding the structure of the sentence, advocating an allowance for stringent bail conditions which was of increasing significance given that the way that events have unfolded, namely that the original charge did not proceed.
Counsel rehearsed his submission regarding the Crown’s reliance on planning as an aggravating factor to submit that it was not, and further submitted that a finding of special circumstances should be made in the event of a sentence of full-time custody.
Determination
Section 3A of the CSPA sets out the purposes of sentencing as follows:-
“3A The purposes for which a Court may impose a sentence on an offender are as follows:
(a) To ensure that the offender is adequately punished for the offence,
(b) To prevent crime by deterring the offender and other persons from committing similar offences,
(c) To protect the community from the offender,
(d) To promote the rehabilitation of the offender,
(e) To make the offender accountable for his or her actions,
(f) To denounce the conduct of the offender,
(g) To recognise the harm done to the victim of the crime and the community.”
In assessing the objective seriousness of the offending in Count 1, the offence of intimidation, I have had regard to the fact that this offending took place against a background of a drug rip-off which resulted in the victim being held responsible for the loss involved by those suffering the loss who were keen to locate the person responsible, namely, Person A. While the agreed facts shortly summarise the context, I accept the Crown submission that the index offences were not spontaneous but did involve a significant degree of planning and organisation, but not by any of the co-offenders including this offender. The joint-criminal enterprise involving the offending conduct in both offences must therefore be assessed with respect to the role of each of the co-offenders assessed by what they did according to the agreed facts. Those facts support a finding beyond reasonable doubt that the offender had the most significant role in the offending conduct and was the leader among the co-offenders. He travelled with his brother, Frederick Schaaf from Caringbah to Cremorne and it was the offender who engaged with the victim outside his home at Cremorne at about 7:00 p.m. on 14 April 2021 after the victim had been lured there by MS. It was the offender who then encouraged the victim to get in the backseat of the car and then sat next to him and questioned him as to the whereabouts of Person A. The intimidation commenced when Feilo entered the car at Bringelly wearing a balaclava and continued when the victim was taken to the dilapidated shed structure on the property at Bringelly and was searched to ensure that he was not wearing a wire. The offender had told the victim, “They want me to take your fingers” and at the shed, Feilo put the garden shears on the floor near the victim.
Having regard to the circumstances of the offending and the offender’s role, I am satisfied that this offending was within the mid-range for an offence pursuant to s13(1) of the CDPVA.
The assessment of objective seriousness of the offending in Count 2 must be assessed by having regard to the conduct of the offender. The offender commenced the assault by slapping the victim across the face causing him to fall down. The offender and the co-offender Feilo then, according to the agreed facts, punched the victim multiple times to the head. No finding could be made as to the number of times that involved, however the assault ended when the offender said words to the effect of, “That’s enough”. I am satisfied that the offenders intentionally caused harm to the victim, and the victim suffered a cut to his lip. This assault fell in the middle of the low range for an offence pursuant to s59(2) of the CA.
I find that the following aggravating factors must be taken into account pursuant to s21A of the CSPA:-
ss(2)(c) – The offence involved the actual or threatened use of a weapon, namely the garden shears which were placed in the presence of the victim.
ss(2)(j) – The offence was committed while the offender was on conditional liberty, namely the ICO and CCO imposed on 21 March 2021 and 1 September 2020 respectively.
ss(2)(n) – The offence was part of a planned or organised criminal activity. Whilst the planning for the involvement of the co-offenders may have been initiated by others, and possibly by MS, I am satisfied that the offender must have been aware that he was being engaged with others in an organised criminal activity arising from the failed drug transaction. I accept, however, that the evidence does not support a finding that the offender engaged in planning the criminal conduct.
I have taken into account the maximum penalties prescribed for the offences of 5 years imprisonment for Count 1 and 7 years imprisonment for Count 2. The maximum penalties indicate the seriousness with which Parliament regards such criminal conduct and are guideposts in the sentencing synthesis.
General deterrence is important in sentencing for both intimidation and assault offending. A clear message must be sent to like-minded members of the community that Parliament has prescribed relatively lengthy maximum sentences of imprisonment for such offences, and that the Courts will impose condign punishment in appropriate cases. Specific deterrence is also important here given this offender’s history of prior offending.
I note that the offender is entitled to a 25% utilitarian discount on sentence in respect of Count 1, and a 5% discount in respect of Count 2 for his pleas of guilty. The pleas demonstrate some remorse on his behalf, however I accept that in his letter of apology to the Court the offender has expressed genuine remorse for his offending conduct.
There are a number of subjective features which need to be taken into account on sentence. First, the offender was 29 years of age at the time of the offending and is now 33 years old. He has an unenviable prior history of offending as set out above which culminated in his conviction for two serious offences of knowingly direct activities of a criminal group and supply a prohibited drug greater than indictable but less than commercial quantity for which he was sentenced by way of an ICO on 25 March 2021, less than a month prior to the index offending. He was also subject to a CCO at the time of the offending for a domestic violence related offence. Little weight can be given to the exculpatory explanation provided for that offending conduct by Ms Miles. In Veen v R [No. 2] (1998) 164 CLR 465 at 477 the plurality said:-
"The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted."
It is clear from the offender’s prior criminal history that he had, at the time of the offending, a disregard for the law which disentitles him to leniency on this occasion.
I accept, as the Crown conceded, that the offender suffered childhood disadvantage. In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 the High Court held:-
1. The circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his/her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way [40].
2. The effects of profound deprivation do not diminish over time and repeated offending and should be given full weight in determining the sentence in every case [42-44].
3. A background of that kind may leave a mark on a person throughout life and compromise a person’s capacity to mature and learn from experience [43].
The application of these principles, and their impact in diminishing the offender’s moral culpability for the offending and how that further impacts the purposes of sentencing set out in s3A of the CSPA was recently explained by Weinstein J (with whom Wright and Sweeney JJ agreed) in YZ v R [2025] NSWCCA 165 at [59] to [68]. The reduction in this offender’s moral culpability must therefore be given “full weight” in the sentencing synthesis (per Bugmy at [44]).
The offender has demonstrated since his release to bail a level of responsibility for his family members and has not re-offended. He has been subject to onerous bail conditions with which he has complied and has thus progressed his rehabilitation whilst accepting responsibility for his offending conduct. I do not accept the Crown submission that the application of the Bugmy principles should be tempered by the fact that he completed high school and has demonstrated increasing responsibility in his life since this offending. Rather, the escalating nature of his criminal conduct leading up to the index offending warrants the Bugmy principles being given full effect in sentencing.
I further accept that during the time he was in custody for the index offences between 5 May 2021 and 11 August 2022, he was subject to onerous conditions due to the COVID-19 protocols applied in NSW prisons and I have taken that into account.
I am satisfied that the threshold in s5 of the CSPA has been crossed and no sentence other than imprisonment is warranted in all of the circumstances. I intend to impose an aggregate sentence pursuant to s53A of the CSPA and provide the following indicative sentences:-
Count 1:- Offence pursuant to s13(1) of the CDPVA, 18 months imprisonment
Count 2:- Offence pursuant to s59(2) CA of assault occasioning actual bodily harm in company – 1 year and 11 months imprisonment
In assessing the aggregate sentence, I must have regard to the principle of totality. In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41, Howie J stated at [27]:-
“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”
Here, the offences occurred in the same course of criminal conduct over a period of a few hours. There should be substantial concurrency having regard to the totality of criminality involved and I intend to sentence the offender to a term of imprisonment of 2 years and 6 months. The sentence would ordinarily be backdated, and I note the divergence between the Crown assessment of pre-sentence custody of 464 days during which the offender was bail refused for the index offences, and the offender’s calculation of 490 days, being the term of imprisonment served by the offender following revocation of the ICO imposed on 21 March 2021.
As the sentence is less than 3 years, I have had regard to s66(1) of the CSPA and note that community safety remains the paramount consideration in assessing whether the sentence should be served by way of an ICO or by full-time detention. The determination is which of the two modes of serving his sentence is more likely to address this offender’s risk of reoffending, having regard both to the purposes of sentencing set out in s3A of the CSPA, and community safety. Having regard to the offender’s progress with his rehabilitation, his onerous conditions of pre-sentence custody and his compliance with onerous bail conditions over a lengthy period of time, I have concluded, on balance, that this is an appropriate case for making an ICO pursuant to s7(1) of the CSPA. I am entitled to take the period of pre-sentence custody into account in adjusting the period for an ICO which must commence on the day that it is made, namely today - See Mandranis v R [2021] NSWCCA 97 and Sarhene v R [2022] NSWCCA 79 at [42].
In exercising my discretion regarding the period to be taken into account, I have had regard to the fact that the index offending occurred a very short time after the previous ICO was imposed on this offender and he served a substantial period of his imprisonment following the revocation of that ICO as well as being bail refused in respect of the index offences. I find that the appropriate period for the ICO is a term of 1 year and 8 months.
Orders
You are convicted of the following offences:-
Count 1 – Offence pursuant to s13(1) of the Crimes (Domestic and Personal) Violence Act 2007 (NSW) of stalk/intimidate intend fear physical etc harm.
Count 2 – Offence pursuant to s59(2) of the Crimes Act 1900 (NSW) of assault occasioning actual bodily harm in company of others.
I sentence you by way of an aggregate sentence pursuant to s53A of the CSPA to a term of imprisonment of 2 years and 6 months.
Pursuant to s7(1) of the CSPA, that sentence is to be served by way of an Intensive Correction Order, commencing today for a period of 1 year and 8 months.
The standard conditions of the order will apply:-
(a)You must not commit any offence; and
(b)You must submit to supervision by a Community Corrections Officer.
The following additional conditions apply:-
(c)That you perform community service work for 200 hours.
I am satisfied pursuant to 17D(1)(a) of the CSPA that I have sufficient information before me to justify the making of the above Intensive Correction Order without obtaining an assessment report.
If you fail to comply with the conditions of this order sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions or it may include revocation of this order.
If the order is revoked, you may be required to a serve all or some of the period of your sentence in full-time custody.
Finally, you are now directed to attend the court registry where a copy of this order will be explained and given to you.
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