R v Rudyk (aka Rudick)

[2019] NSWDC 692

District Court

New South Wales

Medium Neutral Citation:	R v Rudyk (aka Rudick) [2019] NSWDC 692
Hearing dates:	22 October 2019
Date of orders:	05 November 2019
Decision date:	05 November 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate sentence of imprisonment of 4 years with a non-parole period of 2 years
Catchwords:	CRIME — Firearms offences — Unauthorised use/possession of firearm CRIME — Firearms offences — Use/Possess prohibited pistol/firearm SENTENCING — Non-parole period — Principles to be applied SENTENCING — Non-parole period — Ratio of the non-parole period and balance of term SENTENCING — Non-parole period — Standard non-parole period SENTENCING — Non-parole period — Standard non-parole period SENTENCING — Relevant factors on sentence — Form 1 offences SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Multiple offences SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences SENTENCING — Relevant factors on sentence — Objective seriousness
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Firearms Act 1996 s 9 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 number 1 of 2002 [2002] NSWCCA 518 Callaghan v R [2006] NSWCCA 58 Markarian v R [2005] HCA 25 Muldrock v R [2011] HCA 39 Osenkowski (1982) 5 A Crim R 394 Qutami [2001] NSWCCA 353 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	Regina (Crown) Michael John Rudyk (Offender)
Representation:	Kylie Latimer (Crown) Greg James QC (counsel) (Offender)   Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2015/00315619; 2015/00207941; 2016/00109635; 2016/00120406 & 2018/00097277

EX TEMPORE REVISED JudgEment

SENTENCE

INTRODUCTION

1. These are the sentence proceedings part-heard against Michael John Rudyk. I note that he appears in this list by the name of Michael Rudick with his family name spelled R-U-D-I-C-K but all of the documents before me spell his name R-U-D-Y-K.

2. He was before me represented by Mr Greg James QC after he was committed to this court for sentence upon a series of charges, with additional offences to be taken into account in the determination of sentence on those four charges.

3. He was also before the court for breaches of bonds pursuant to s 9 Crimes (Sentencing Procedure) Act 1999. He consents to the court dealing with the breaches of the bonds and the Crown material tendered included a bundle of material relevant to those past episodes of misconduct.

4. The charges upon which he was committed for sentence he acknowledged and confirmed that he adhered to his plea of guilty in this court.

5. He confirmed that he wished additional offences to be taken into account in the assessment of sentences for the various principal offences to which they relate and he admitted that he was guilty of those additional offences.

THE OFFENDER

6. The offender is 45 years of age and presents as an unusual candidate for the punishment that I must impose, upon the synthesis of objective and subjective facts that have been put before me by way of the various documents tendered. He has for a relatively short period of time been the member of an outlaw motorcycle group. This is a term that I find to be somewhat emotive and colourful and no doubt of interest to the media. Ultimately these various associations of men, and women in what might be seen to be lesser roles within the organisations, are individuals who are motorcycle enthusiasts; who enjoy the outdoor life with the sense of freedom that they claim to have in the role that they take on in these various groups. These groups do involve themselves in criminal activities, including the distribution of prohibited drugs and offences of violence. I have been called upon to deal with these groups in various capacities in my life at the bar, as a member of the National Crime Authority, and now as a Judge. There is generally a level of immaturity displayed by the people who aspire to membership in these organisations. There is generally an attitude of resistance to authority and the norms of society. There is generally what might be described as an “outlaw mentality” resonant of the period in the late 1800s, predominantly in the United States.

7. When he was involved in such activities and had such interests the offender exposed himself to the punishment that he will face today, out of a misguided sense of loyalty to other members of his group to whom he might refer as “brothers”. Upon the material I have it would seem that he has recognised that at 45 years of age he needs to demonstrate more maturity. He has returned his “colours” and other paraphernalia of office, and no longer associates with his former group.

8. I know enough of these organisations to understand that they guard jealously their membership and look unfavourably upon those members who want to disengage, and that as a consequence there is a risk that people such as the offender must face from those who might see his decision to redirect his life as an act of disloyalty.

9. His association with this group seems to have been of relatively short duration according to some of the material I have read. He has only been “fully made” for some two years and before then was for a year and a half, or a little longer, an aspirant to membership, although the events that have been seminal in his life, reflected in his antecedent report, go back a little further.

10. The offender has not given evidence and I am required to approach what has been said on his behalf both by way of counsel and the documents tendered with a measure of circumspection, in accordance with what Smart AJ wrote in Qutami [2001] NSWCCA 353. Leaving aside submissions made on his behalf, the representations attributed to him elsewhere are admissible, but they are not under oath or affirmation. They have not been tested by cross-examination and one must examine the material carefully before accepting that they should be acted upon in the determination of sentence. That said, there is a consistency between the representations attributed to the offender contained in the documents before me. There is a medical history as well as a psychological history that is consistently described, and there is a pattern of behaviour that is exposed in the summary offences that are before me by way of the s 9 bond breaches, again reflecting the personality that is addressed in the documents tendered in the offender’s case.

11. I am satisfied that I can accept what has been said on his behalf in those documents and I can accept the representations attributed to him. It does not follow though that he walks out of this court room today unscathed. He has engaged upon misconduct that is deserving of punishment against a history of misconduct reflected in his antecedent reports. There must be a period of imprisonment which he must serve that has not yet expired after which he will be subject to parole for a period of time, longer than the period contemplated in s 44 Crimes (Sentencing Procedure) Act 1999. I am satisfied that there are special circumstances that require that the sentence be structured so that he has a longer period on parole.

THE OFFENCES

12. The first is contrary to s 62 (1) (b) Firearms Act 1996; this is sequence 14. This alleges that he possessed a shortened firearm, not a pistol, without authority, on 27 March 2018 at Tregear. The weapon concerned was a Japanese-manufactured single-barrel shotgun serial number 6612. The maximum penalty specified for that offence is imprisonment for 14 years.

13. The second offence, sequence 15, alleges that at the same time and at the same place he had possession of a 12-gauge Baikal N-18M single-barrel shotgun, serial number 8635449; again, an offence contrary to s 62 (1) (b) Firearms Act 1996 with a maximum penalty of imprisonment for 14 years.

14. Sequence 3 is the third offence. That is an offence of possessing an unauthorised pistol at the same time and the same place. This was a 0.22 calibre self-loading pistol fitted with a silencer. There was no authority to hold the weapon whether by licence or permit. The maximum penalty specified for this offence, contrary to s 7 (1) Firearms Act 1996 is imprisonment for 14 years with a standard non-parole period of four years. I have corrected the Crown Sentence Summary sheet to identify the correct year of that Act.

15. The fourth offence, sequence 10, is possession at the same time and at the same place of a handheld anti-personnel device, namely a Taser. The maximum penalty specified for this offence is imprisonment for 14 years with a standard non-parole period of five years.

STANDARD NON-PAROLE PERIODS

16. The standard non-parole periods for these offences are relevant in the determination of sentence. The provisions introducing standard non-parole periods are contained in Part 4, Division 1A Crimes (Sentencing Procedure) Act 1999, amended to their present form after the decision of the High Court of Australia in Muldrock v R [2011] HCA 39. The standard non-parole period for an offence is that which is included in the table to those provisions. The Act provides that the standard non-parole period represents the non-parole period for an offence in the table that falls within the middle of the range of objective seriousness taking into account only the objective factors affecting the relative seriousness of that offence. The Act provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account, and that the court must record its reasons for setting a non-parole period that is longer or shorter, identifying each factor taken into account.

17. Those provisions were the subject of discussion by Johnson J, in Tepania v R [2018] NSWCCA 247 where at para 110 in his Honour’s judgement there is a summary of the provisions identifying the sections where these propositions are promulgated. His Honour continued at para 112 with the following,

“In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by Statute). Factors such as motive, of provocation or non-exculpatory duress, may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences. Including (if it be the case) a mental disorder or a mental impairment. It was recognised at Common Law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence.”

18. Thus upon the summary that I have provided, read with that provided by his Honour, the court should not overlook that when assessing objective gravity of an offence which the court is required to do in all offences, and particularly in a standard non-parole period offence, objective factors affecting the relative seriousness of the offence are to be taken into account, without reference to matters personal to the offender, or class of offenders, subject to the comments made by his Honour which assert that one should not overlook matters personal to the offender that are causally related in the appropriate way to the misconduct. In this case I have before me a psychological history to which I shall come that impacts upon the assessment of objective gravity of this series of charges.

19. The fixing of the non-parole period is but part of the task whereby the court determines what is the appropriate sentence and that is so regardless of whether guilt is admitted or established after trial, and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences. The process that I have embarked upon is one of intuitive synthesis. It is not arithmetical or staged or tiered. I refer to the judgement of McHugh J in Markarian v R [2005] HCA 25.

20. When determining sentence for an offence for which there is a specified standard non-parole period, it and the maximum penalty are legislative guideposts for the sentencing court, along with other established sentencing practices and by reference to matters identified as relevant from s 3A, 21A, 22 and 22 Crimes (Sentencing Procedure) Act 1999.

21. Applying these principles I am satisfied that the objective gravity of the offences in each case falls below mid-range. That is so in respect of the offences without the standard non-parole period and those with standard non-parole periods. The extent to which they fall below mid-range is a matter of judgement and I would accept that minds will differ upon where the offences should be placed upon the scale of seriousness. It is an imprecise exercise. They will all, in my view of the matter, fall about the same point on that scale because of the circumstances in which the offences were committed. In my view, bearing in mind the nature of the weapons, that they could have had no purpose other than nefarious in the hands of those who had delivered them into the possession of the offender for safekeeping, requires a finding that objective seriousness in this matter falls somewhere about half way along that line from the lowest end of the range to the mid-range.

22. It does not follow that the standard non-parole period must therefore be applied with an appropriate calculation to reflect the percentage that might be applied placing these offences at those points on the scale. As I said this is an exercise in intuitive synthesis and the custodial component of the standard non-parole period offences must be informed by all of the material that is presented to me.

23. I need not specify a non-parole period, or notional non-parole period for other than the two standard non-parole period offences. I propose to announce indicative sentences for each of these four offences. The standard non-parole period offences however will require me to specify what I would have ordered by way of non-parole periods were the sentences to be imposed for those offences alone or separately. I shall, after determining the indicative sentences, and then set an aggregate sentence including a single non-parole period.

THE FORM ONE OFFENCES

24. When the offender is sentenced for the offence charged in sequence 14, possessing the shortened Japanese-manufactured shotgun, he asks that I take into account the possession of that weapon contrary to s 36 (1) Firearms Act 1996 for which the maximum penalty specified upon summary convictions is imprisonment for two years with a fine represented by fifty penalty units. In respect of the same weapon he ask me to take into account an offence of not keeping the firearm safely pursuant to s 39 (1) (a) Firearms Act 1996 for which the maximum penalty is imprisonment for two years and fifty penalty units.

25. I shall discuss how the Form 1 offences impact upon the sentence for each of the principal offences shortly.

26. When I sentence him for the offence charged in sequence 15, the Baikal N-18M single barrel shotgun that was shortened, he asks that I take into account in respect of the same weapon that he had possession of it when it was unregistered, again contrary to s 36 (1) Firearms Act 1996, and also for failing to keep that weapon safely contrary to s 39 (1) (a) Firearms Act 1996.

27. When he is sentenced for possessing the Baikal self-loading pistols, sequence 3, he ask that I take into account his possession of that weapon contrary to s 36 (1) Firearms Act 1996, it being an unregistered weapon, and that I take into account that he did not keep the weapon safely contrary to s 39 (1) (a) Firearms Act 1996.

28. When I sentence him for the possession of the Taser he asks that I take into account additional offences of cultivating a prohibited plant, namely six mature cannabis plants contrary to s 23 (1) (a) Drug Misuse and Trafficking Act 1985, with a maximum penalty of two years imprisonment and a fine of fifty penalty units, and possessing a prohibited drug, namely steroids, contrary to s 10 of the same Act with the same maximum penalty applying.

29. The Form 1 offences have effectively cleared the slate for the offender and he has avoided separate punishment for those crimes but in the exercise I am to perform he must be given credit for having taken the course that he has. The additional offences in respect of sequences 14, 15 and 3 will have some marginal impact upon the indicative sentences I will select for those offences, in accordance with the judgement of Spigelman CJ in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 number 1 of 2002 [2002] NSWCCA 518. I agree with the submissions made by Mr James QC that the possession of the weapons as unregistered weapons involves considerable overlap with possession simpliciter of the weapon in each case. Failure to keep the weapon safely has a marginal impact because of the circumstances in which the offender chose to store these guns, and thus the sentence which I will select for each of those offences will be increased to reflect the additional offences, to give effect to the weight required upon aspects of personal deterrence and the extent of the offender’s misconduct, and the community’s entitlement for retribution for the full range of the behaviour that brings him before the court. But even with those comments the impact is not going to be great.

30. In so far as the offences to be attached to the principal offence of possession prohibited weapon, the Taser, are concerned, there is a little more to be brought to account in regard to those because they are offences of a different type. I am aware of the reason he had the cannabis. As he told the police, he uses cannabis to assist him with his pain management and his anxiety, amongst other things. It was for personal use and rather than spend money on the acquisition of the drug he chose to cultivate it. But there are six mature cannabis plants; it is not an insignificant number. The possession of the steroids falls at a lower level of seriousness in my view, but applying the same principles to which I have referred, there will be an increase in the sentence that would have otherwise been imposed upon the principal offence, were it to be determined standing alone.

PRE-SENTENCE CUSTODY

31. The offender has been in custody for this matter from 19 April 2018. The sentence that I will announce at the end of this judgement will commence on that day.

32. I note that he was arrested on 27 March 2018 and he was required to serve the balance of his parole, to which he was subject, and which took him through to 19 April 2018. Thus he has been in custody in respect of these matters only from 19 April 2018.

33. I have discretion with regard to the commencement date of the sentence, as is now accepted after the judgement by Simpson J in Callaghan v R [2006] NSWCCA 58. At paragraph 23 her Honour wrote,

“It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek to be, and be granted parole, even after revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence, is to assume that, absent the subsequent offences, the offender would not have been granted the second chance at parole.”

34. In this instance the revocation of parole meant that he served a balance of parole of less than a month; in the exercise of the discretion I am satisfied that I should start this sentence on 19 April 2018 and I intend to do so.

THE PLEAS OF GUILTY

35. The offender pleaded guilty in the Local Court and was committed for sentence; he has therefore gained an entitlement to a discount for the utility of the pleas of guilty to be applied at 25% to the indicative sentences that might otherwise have been selected.

36. The discount is applied to the indicative sentences after the synthesis of objective and subjective facts, including the demonstrated contrition and remorse of which I am satisfied. There are prospects for rehabilitation but although I accept the offender’s sincerity with regard to his future, history is not his friend in that regard and one must be at least cautious when assessing whether or not there are prospects for rehabilitation. I am satisfied that there are some. Whether they could be described as good, though I have some doubt about, but as I say, I am satisfied there is contrition and remorse and I am satisfied of his sincerity and his desire to change his direction in the future.

37. The contrition and remorse is reflected in his response to the investigation. The police officers provided information to the Crown upon which the facts have been prepared which clearly indicate a measure of cooperation without any attempt to resist the task the police officers had. For example in paragraph 18 of the facts the following appears.

“The offender was taken back to Mount Druitt Police Station where he participated in an electronic record of interview where he continued to make full and frank admissions”.

THE FACTS

38. The facts are that on Thursday 27 March 2018, the police applied for and were granted a search warrant in the Local Court at Parramatta for premises in Tregear. The offender and his partner live at that address. About 4.45pm, police stopped him as he was riding a motorcycle in Tregear, with his colours identifying membership of the group of which he had become a member.

39. The investigating police were attending a briefing in preparation for the execution of the search warrant at his home. On notification that he had been stopped, the investigators arrived at that location and told the offender that they had a warrant to search the premises, provided him with an occupier’s notice, and cautioned him that what would be said would be recorded on video camera, to which he responded, “I’ve got a couple of dope plants out the back for personal shit”. He confirmed that this was marijuana. He explained that he smoked marijuana, “Fuck spending money. I put a couple of plants in”. He agreed to accompany the police back to the premises.

40. He paused briefly and then represented “I got dropped off a couple of guns, the other day fucken ...and they are under my bed ... two sawn off and a pistol with a silencer or something”. He told the police that he did not know whether the weapons were loaded. He said he briefly inspected the bag after “One of the boy’s mates dropped it off at the house”. He was arrested, he agreed to go with the police to his property, and there he assisted the police with the location of the weapons under his bed and admitted he did not have the required licence or permit or authorisation to possess them.

41. The police found the items. There are photographs included in the facts, depicting the hessian bag in which they were contained. There are photographs of the individual weapons and particulars of their nature and the application to them of the relevant provisions in the legislation. Two shortened shotguns are reduced to the pistol grip and the fore stock with the barrel cut just at the end point of the fore stock. There is a picture of the semi-automatic 22 calibre pistol with the silencer fitted and there are images of the cannabis plants. There is an image of the Taser. There were two vials of steroids located.

42. There is a summary of the information provided by the offender in responses to questions in the interview. He said he did not know who shortened the weapons. He had a look at them before they were put under the bed. He had been asked to pick them up and look after them for a week or so. He agreed that he was minding them. He said he thought they belonged to his group. He accepted that he would do such things for his club. He had no personal conflict with another person. He had not received any threats from anyone. He spoke of having run into members of a rival club up the road and after they stared at each other for a short period of time they each went their own way.

43. He spoke of his status as a member of the club for two years at the time of the interview, with nominee status 18 months before then. He declined to inform upon the persons who provided the weapons to him. He accepted possession of them because “That’s what you do” and then offered, “We are in a different world; a different lifestyle” and “‘a club brother” asked him to look after it.

44. The Taser originally came from his partner’s deceased ex-partner but acknowledged that he had appropriated it to himself. He said he had been growing the cannabis since Father’s Day or Mother’s Day the year before. They were for personal use and the testosterone came from somebody in the local hotel.

45. The weapons were examined by a ballistics expert and the findings are there discussed.

FURTHER SUBJECTIVE MATTERS

46. He is 45, born in 1974. He has extensive antecedents. The report is of 21 pages. His appearances in court began as a child in 1992, where he was charged with assault. Thereafter, in adult court, he was charged with assault occasioning actual bodily harm, common assault, failing to appear, breach of recognisance, breach of a community service order, common assault, assault occasioning actual bodily harm, custody of a knife in a public place, some traffic offences, more assaults, intimidation of a police officer, intimidation, street offences, resisting an officer in the execution of duty, damage to property.

47. The s 9 bonds were for offences dealt with in March 2017 and as well as the s 9 bonds to which I shall come, he was sentenced to imprisonment in the aggregate, for offences of damaging property and assault occasioning actual bodily harm.

48. The sentences were significant; the aggregate sentence was of 24 months including the non-parole period of 11 months. In light of that the resolution of the breach offences will include a nominal punishment; it seems that there might have been a measure of doubling up in the way the matter was approached in the Local Court.

49. Then there are more offences of intimidation, common assault, driving offences, offensive language, an apprehended violence order was contravened at one point and there is an offence of having an offensive implement in a public place and custody of a knife in a public place; again that is part of the material before me for the s 9 breaches.

50. The number of offences is of concern but properly understood his record of misconduct is towards the lower end of the range of objective seriousness looking at it in its entirety. Although there are episodes of violence including assault occasioning actual bodily harm and common assault and intimidation those offences are in my assessment on the material I have less significant than what I am dealing with today.

51. There is a breach of parole report written in respect of his prior sentence, the supervision to expire on 19 April 2018, for assault occasioning actual bodily harm, contravening AVO, damaging property. The breach was multi-faceted; he failed to be of good behaviour, he committed further offences namely those that are before the Court. His supervision was said to be initially appropriate but diminished over time. It was recommended that though he had a short time remaining on parole, given the seriousness of the charges his parole should be revoked as of 27 March 2018. This report was written on 4 April 2018.

52. I have a sentencing assessment report; this was written on 16 August 2019. His intention is to resume cohabitation with his partner once he is released. He has frequent visits from his partner and his friends. He has been unemployed and receiving a disability support pension for a significant period of time as a consequence of physical injuries that he has accumulated over his lifetime limiting his movement and the ability to use his hands.

53. His offending behaviour in the past has been attributed to alcohol and other drugs and his relationship with his ex-partner; that is a reference as I understand it to another woman with whom he was residing back in 2016 to whom there is reference in the s 9 breach papers. He is attributed with a representation that it was not his intention to commit the firearm offences which he linked to his associates at the time. His drug related offending was with regard to personal use and to address his injuries and mental health concerns; he expressed regret and remorse. He said he knew that he was doing wrong.

54. He referred to his membership of the group that led to his offending behaviour. He did not want to give information because of his concern about repercussions which I would accept and understand. He has since left the group. He said he felt that he had been set up by them and he has returned all of his memorabilia according to the report. Cannabis was cultivated for his own personal use to self-medicate because of his various medical issues. In recent years he has confined his use of prohibited drugs to cannabis, which is corroborated by the records to which the author had access. His history includes aggression and domestic violence as I summarised from his antecedent report. His relationship with his ex-partner was toxic and indeed one of the events that led to him being put onto the s 9 bond included an attack upon her to which I shall come.

55. He has been prescribed anti-psychotic medication and that has continued in custody. He is compliant he said with what is provided to him but he is not in favour of the strong pain killers that he receives and has stopped using them.

56. The offending has had a significant impact upon his partner, emotional and financial. He will undertake appropriate supervision, he cannot undertake community service, and his past supervision is deemed overall unsatisfactory. He is assessed with a medium risk of reoffending and there is reference to a supervision plan and what recommendations would be made should he be released; they will be matters for the Parole Authorities to consider.

57. Dr Sathish Dayalan wrote a report on 21 October 2019. This report is I might say quite comprehensive and helpful. He had in his formative years a difficult time and when one reads this and accepting the representations attributed to him one can see how he has ended up along the path that he has taken involving himself with a group of people that ultimately have been his downfall.

58. He did not know his biological mother until he was in his mid-20’s. His stepmother on the other hand was physically and sexually abusive; she hit him with chains and threw knives at him when in fits of anger. She would pull his hair and strike him. His father was neglectful and simply ignored what his stepmother was doing. Circumstances were such that he ran away at the age of 14, lived on the streets, and resorted to crime to support himself. He has spent a significant period of time in juvenile detention centres and correctional centres. I might pause to note that the antecedent report reveals the extent to which the Courts have applied all options available to them to assist in his rehabilitation but unfortunately he has persisted in offending.

59. The antecedent report, I should note, does not aggravate the custodial sentence to which he is exposed or the objective gravity of the offending but is relevant as an aggravating factor to the extent to which leniency might have otherwise had will not be available to him and it informs the aspect of personal deterrence that must be brought to account. That also applies to the fact that he was on conditional liberty at the time of these offences.

60. He was a poor student at school with limited concentration, easily distracted, hyperactive with poor impulse control.

61. His life has included multiple occasions when he has been assaulted. He suffered an attack with the assailant wielding a machete, leaving a permanent deformity and disability. He was the victim of a home invasion when about 20 years of age. He was badly assaulted. There are other incidents where he had been struck on the head with a baseball bat and when he had been stomped on his head. He suffers nightmares and flashbacks and symptoms consistent with post-traumatic stress disorder. He was diagnosed with bi-polar affective disorder in the Blacktown Community Mental Health Team. He has periods of low mood and suicidal ideation.

62. Medications prescribed over the years included Sertraline, Mirtazapine and anti-psychotic medications, Quetipine, Resperidone and Olanzapine. He had a psychologist in Wollongong upon whom he attended as part of a mental health care plan arranged by his general practitioner.

63. At the time of these offences, he was smoking cannabis to assist in his pain from his injuries and his anxiety. He was smoking a large amount of it.

64. There is reference to his association with the group to which I have referred. He had been longing for friendships when he fell within their influence. He found the members to have been caring and engaged upon activities which he enjoyed including riding his motor cycle and the outdoor life. He felt that he had found the family that he had not had as a younger man through his formative years. Regrettably, it was a poor choice and led to his present predicament.

65. He has been reviewed by psychiatrists in a correctional facility at Windsor. He has been prescribed medication including Lithium but that troubled him. That would leave him sedated and make him an easy target for assaults and he chose not to take that medication. He has been taking Resperidone orally and another medication which he could not name. He has ongoing symptoms of anxiety and post-traumatic stress disorder with reference to his pain and a disability from his injured forearm. He suffers osteoarthritis and eczema. He has had head injuries including loss of consciousness and there is also a reference to another condition, psoriasis which affects his skin and which has regrettably of a long term sequelae that no doubt his practitioner has discussed with him.

66. His drug and alcohol use is discussed; alcohol, cannabis, LSD, cocaine and amphetamine, up until the age of twenty five. He experimented with crystal methamphetamine and ecstasy but in the last eight years has confined his misuse of drugs to cannabis. He has not completed any substance use rehabilitation programmes. The psychiatrist refers to his abuse and neglect as a child and through his formative years. He has a good relationship with his grandmother and paternal aunt but limited contact with them.

67. He struggled academically at school. He worked in physical labour. There is a reference to his volatile relationship in the past and his current relationship which is said to be stable.

68. Case notes from the Wollongong Medical Centre refer to his ADHD, bi-polar affective disorder, post-traumatic stress disorder and eczema, difficulty with controlling his temper, and a history of having suffered violence and significant injury. He was diagnosed with attention deficit hyperactive disorder, post-traumatic stress disorder and cannabis use disorder and the psychiatrist provides an analysis of the consequences of those conditions.

69. I agree with what was said on behalf of the offender by Mr James that this is material upon which I could find that there was an impact upon his exercise of judgement in the commission of these offences and that in another environment under proper supervision, he is not likely to fall into the same pattern, but it will require that he take the opportunity that he will have on parole to submit to supervision and approach it with a positive mind, and accept the assistance that is likely to be available to him so that he does not come back to the Courts.

70. His physical health was the subject of the document from Justice Health written by Dr Jacques Ette referring to his bi -polar disorder in respect of which he has been assessed on many occasions, psoriasis affecting the skin of his limbs, scalp and trunk and the medication that he uses for that including topical ointment and tablets. He had the repair for an umbilical hernia in Blacktown Hospital on 23 September 2019. There are facilities in the Justice Health system to provide the care that he requires according to this report.

CONSIDERATION

71. Mr James has not provided written submissions but he addressed me on the day the matter was presented. He put forth findings of fact that he urged me to make in this matter.

72. I find that the cannabis plants were for his self-medication and the steroids too.

73. It was conceded that the line in s 5 Crimes (Sentencing Procedure) Act 1999 had been crossed. I was reminded of the disparity between the standard non-parole periods specified for these two matters. Clearly the firearms offence is far more serious than the prohibited weapon offence but Parliament in its wisdom has specified the longer standard non-parole period for the Taser offence, a matter with which this Court should not cavil because Parliament has pronounced its view by way of the legislation.

74. Mr James suggested there is limited room for specific deterrence. I do not agree with that submission. The offender needs to understand that if he keeps coming back before court, the prospect of other than custodial sentence will be remote; he has a demonstrated propensity for getting himself into trouble. He needs to be made aware and appreciate that if he commits offences, there will be consequences.

75. The question arises as to whether or not he is a suitable vehicle for general deterrence. In my view, he is. I am satisfied that there are explanations for his misconduct and the other offences including the demonstrated ease with which rise to violence, but he needs to take responsibility and to address the underlying reasons for his tendency to misbehave. Those in his position should be made to understand that for such behaviour, the product of their inability to control their emotions and/or inappropriate loyalty, there will be consequences from the misconduct. I agree that the Taser offence is of lower significance than the other weapons.

76. It is suggested that the offence is at the lower end of the range of seriousness; I have already dealt with that question. I accept the observations and the opinions offered by the psychiatrist. I note that the attack with the machete according to what was said from the bar table occurred when he was in custody. I am not quite sure of the circumstances in custody when that occurred but one way or another, it must have been horrific to face such an assault.

77. It is said that the judgement of King CJ in Osenkowski (1982) 5 A Crim R 394 applies. I tend to the view that Mr James is correct in that regard. What I have before me suggests that the offender is at the crossroads.

78. I agree that there are ample special circumstances and I agree that there should be a longer period on parole with an appropriate adjustment down to the custodial component. It was urged that I might consider an intensive corrections order. I do not believe it is appropriate in this case.

79. Mr James advanced a range of sentences that might be appropriate in his perception of the matter. It is not the usual course that counsel would take and it is something the Crown would never advance, but I take it for the assistance that was intended. I do not take offence at Mr James’ attempt to assist the Court in what he said.

80. The Crown in oral submissions spoke to the written submissions provided. The effect of the submissions with regard to objective gravity is as I perceive it is that it is within the range of my finding. Except for the Taser, the objective gravity is somewhere between low and mid-range. I was reminded of his past opportunity for supervision, that still led to his continued offending and I was asked to take the view that there is no evidence that he has left the clutches of the group of which he was a member, but as was made clear by Smart AJ in Qutami [2001] NSWCCA 353 those representations are admissible, and upon the material before me I would accept that he has decided to take another path. Hopefully, he will stick to it.

THE SENTENCE

81. That brings me to the imposition of sentences.

82. First of all I shall revoke each of the s 9 bonds to which the offender was subject. In each case he was already convicted. As I said, he was dealt with for other offences on or about the same time and served a significant period of imprisonment, imposed by magistrates but it remains that he was on conditional liberty for each of these offences. They are not without significance.

83. The first, by way of summary only was damage to property where he was charged with having damaged the motor vehicle of another person by punching, leaving significant damage to panels, including denting. His reason for doing so according to the material before me was that someone was taking a picture of him on his bike when he was wearing his colours. He responded when he was told he was being charged, “That nurse will be sorry. I know where he lives”. There has been no indication of any retaliation since that. It is conduct consistent with his propensity to react inappropriately he finds he is offended. That offence was on 5 May 2015.

84. There is an intimidation offence that occurred on 27 October 2015. This arose when he had a confrontation with a bus driver, described in the facts that have been included. He was on his way to get medication when that occurred. When it was all over, police came knocking on the door. He was there waiting and expecting their arrival.

85. The third offence is custody of a knife in a public place and custody of an offensive instrument in a public place. That referred to events on 5 April 2016 when he was sighted leaving a long-known drug premises. He was stopped. He was in his colours. When he stopped he immediately handed over to the police a knife that he had secreted under his jacket and he also was found to have a small truncheon or a baton that had been home made.

86. Then on 19 April 2016 there was an offence of hindering an officer and intimidating an officer. That involved him having assaulted his then partner but police intervened. He told her to get inside. That seems to have been the conduct that was said to be the hindering. When he was arrested and taken into custody, he threatened the police officer in terms that he was going to smash the officer when he got out. There has been no indication of any retaliation as a consequence of that again and emotional outburst.

87. In the circumstances, the outcome on those matters I believe should be that in respect of the offence of damaging property I will impose and specify as an indicative sentence, a term of imprisonment of 1 month. For each of the other offences in the circumstances that they have occurred, I am satisfied there should be no penalty and accordingly, in each of them, the conviction stands. But, pursuant to s 10A of the Crimes (Sentencing Procedure) Act, I shall impose no penalty.

88. Just take it easy Mr Rudyk; we are at the business end now.

89. In respect of the possess shortened shotguns, sequence 14 and sequence 15 respectively, and taking into account the additional offences, I specify indicative terms of imprisonment of 3 years respectively. In respect of the possession of the pistol, fitted with a silencer, I specify an indicative sentence of imprisonment for 3 years, with a non-parole period of 1 year, 6 months.

90. In respect of the possession of a prohibited weapon, the Taser, I specify a sentence of imprisonment of 1 year and 6 months, with a non-parole period of 9 months.

91. I specify an aggregate sentence. The aggregate sentence is, imprisonment of 4 years, including a non-parole period of 2 years, commencing on 19 April 2018. The non-parole period will expire on 18 April 2020, with the balance to expire on 18 April 2022.

92. Thus in respect of each of those offences he is convicted. The indicative sentences are as I have announced them. He is sentenced to a term of imprisonment of 4 years, commencing on 19 April 2018, to expire on 18 April 2022, including a non-parole period of 2 years. The exhibits are to remain on file for 28 days or as long a period as the parties might require.

93. I will certify the Form 1 in each case.

94. Can I just note that the documents, the Forms 1 have been signed by the offender but he did not include a date but it was signed in court, when the matter was before me on 22 October. I will note on the Court file that that is the date upon which it was signed and I will certify them in each case.

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Decision last updated: 22 November 2019