R v Saunders

[2021] NSWDC 508

District Court

New South Wales

Medium Neutral Citation:

R v Saunders [2021] NSWDC 508

Hearing dates:

10 September 2021

Date of orders:

24 September 2021

Decision date:

24 September 2021

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full-time custodial sentence. For orders see [72]

Catchwords:

CRIME – sentence – take and drive conveyance without consent of owner – never licensed person drive vehicle on road – use offensive weapon to prevent unlawful detention.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900 (NSW)

Criminal Procedure Act 1986 (NSW)

Mental Health (Forensic Provisions) Act 1990

Road Transport Act 2013 (NSW)

Cases Cited:

Bugmy v R (2013) 249 CLR 571; [2013] HCA 37

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

R v Fernando (1992) 76 A Crim R 58

Zrieka v R (2012) 223 A Crim R 460; [2012] NSWCCA 44

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Dean Saunders (Offender)

Representation:

Counsel:
J. Menzies (Crown)
K. Stares (Offender)

Solicitors:
C. Minette (Offender)

File Number(s):

2020/228550

remarks on sentence

1. The offender is to be sentenced in respect of sequence 10, use offensive weapon to prevent lawful detention. The offence is pursuant to s 33B(1)(a) of the Crimes Act 1900 and the maximum penalty is 12 years imprisonment. There is no standard non-parole period prescribed.

2. The offender has asked that sequence 6, an offence pursuant to s 154A(1)(a) of the Crimes Act of take and drive conveyance without consent of owner, is taken into account on a Form 1. The offender has admitted his guilt in respect of that offence.

3. A further matter is to be dealt with by way of a certificate pursuant to s 166(1)(b) of the Criminal Procedure Act 1986, being sequence 9, an offence pursuant to s 53(3) of the Road Transport Act 2013, i.e. never licenced person drive vehicle on road – prior offence.

4. The offences occurred on 5 August 2020. At the time of the offences, the offender was on parole, having been released on 29 June 2020. His parole was due to expire on 29 June 2022. Following his arrest on 5 August 2020, his parole was revoked. He has therefore been in custody since 5 August 2020, referable to bail being refused on the present offences and serving the balance of his parole.

The sentence hearing

5. The sentence hearing took place on 10 September 2021. The Crown Sentence Summary became Exhibit A. It included a statement of agreed facts which may be summarised as follows. On 5 August 2020, police located two stolen vehicles in South Coogee and maintained surveillance of them. At 6:20pm, four people dressed in dark clothing were observed to approach and enter a Mercedes vehicle (registration number DQU-71C). They entered the Mercedes and drove along Hendy Street, when an unmarked police vehicle blocked its path. Two other police vehicles approached, one from the front and one from the rear, preventing the vehicle from reversing. Police observed the offender in the driver’s seat of the Mercedes.

6. The index offence occurred when the Mercedes reversed harshly, making heavy contact with the front of the police vehicle behind it. It then accelerated harshly, making heavy contact with another police vehicle. Police approached the vehicle and identified themselves, ordering the occupants to open the car doors. They refused and the police subsequently smashed the front driver’s side window with a window breaking implement. Whilst that was occurring, three of the occupants ran from the vehicle and were not apprehended. The offender suffered a facial injury as a result of the window being smashed. The offender climbed from the driver’s seat to the front passenger seat, exited through the front passenger door, then ran from the scene. He was apprehended and arrested. The offender exercised his right to silence and did not participate in an interview.

7. The cost of the damage to police vehicles totalled $28,800. The insurer seeks compensation from the offender for that amount.

8. The offender was born on 21 March 1998. He was 22 years of age at the time of the offending and is now 23. Exhibit A contained a criminal history which, on any view of it, is disturbing. Ignoring Children’s Court matters, his first offences as an adult occurred when he was 18 years of age. For two offences of assault occasioning actual bodily harm, and an offence of arm with intent to commit indictable offence, he was placed on three bonds pursuant to s 9 to be of good behaviour for 18 months. He was subsequently called up on those bonds within six months and directed to report to Community Corrections.

9. In February 2017, he was sentenced for a contravene prohibition/restriction in AVO by way of a section 10 bond to be of good behaviour for 12 months. Eight months later he was called up on that bond and directed to report to Community Corrections.

10. In October 2017, he was convicted of dishonestly obtain financial advantage by deception (Form 1) police pursuit – not stop – drive recklessly – second offence, for which he was sentenced by way of a section 9 bond for a period for 18 months and an offence of drive conveyance without consent of owner (Form 1).

11. On the same day, he was sentenced in respect of an offence of two counts of break/enter house and steal, and sentenced to 12 months imprisonment with a non-parole period of six months commencing on 24 April 2017.

12. In March 2018, he was called up in respect of the section 9 bond imposed for the police pursuit offence and sentenced to six months imprisonment commencing on the same date, 24 April 2017.

13. In March 2018, he was sentenced for an offence of aggravated break and enter dwelling in company to 12 months imprisonment with a non-parole period of six months commencing 30 November 2017.

14. In February 2019, he was convicted of an offence of possess prohibited drug and sentenced by way of section 10A to a conviction with no other penalty.

15. In June 2019, he was sentenced for the following offences:

Sequence 4 – drive recklessly/furiously or speed/manner dangerous – first offence, for which he was sentenced to five months imprisonment commencing 30 September 2018.

Sequence 13 – use offensive weapon to prevent lawful detention, to which he was sentenced to three years and nine months imprisonment with a non-parole period of one year and nine months, commencing 30 September 2018 and terminating on 29 June 2020. This was the offence for which he was released on parole some five weeks prior to the index offence.

Sequence 6 – resist officer in execution of duty, taken into account on a Form 1.

Sequence 11 – Drive conveyance taken without consent of owner, taken into account on a Form 1.

Sequence 5 – never licensed person drive vehicle on road – first offence, fine $300.

16. A further conviction occurred in 2017 for affray, for which he was fined $600 and sentenced by way of a section 9 bond for 12 months.

17. Exhibit A included the offender’s custodial history and a Breach of Parole report under the hand of Ms T Pfefferman and Mr C Hirst. The report detailed the offender’s failure to comply with a condition of his parole, namely, to be of good behaviour and not commit any offences. The author noted that whilst the offender appeared to be motivated to address his offending behaviour and denied associating with antisocial peers, his engagement with supervision appeared to be superficial. He was referred to Weave, a youth collaborative support service for case management, on 17 July 2020. Again he appeared motivated to engage in treatment however he subsequently did not respond to phone calls from the service and missed his initial appointment scheduled on 4 August 2020.

18. The author opined that his reoffending appeared to have been committed in the company of others, involve violence towards law enforcement in order to avoid apprehension and to demonstrate an escalation of his risk in the community. It was recommended that his parole order be revoked, and it was revoked on 26 August 2020 to take effect from 5 August 2020.

The offender’s evidence

19. The offender tendered a bundle of documents which became Exhibit 1.1 – 1.8. Exhibit 1.1 was a discharge referral dated 17 May 2012 from Sydney Children’s Hospital. It recorded that the offender had been hit by a car when he was two years of age. He had previously been treated for attention deficit/hyperactive disorder (ADHD) on medications and in 2004 he fell from a tree a distance of eight metres, suffering mild cerebral oedema and a fracture of the pelvis. In 2007, he suffered a further head injury when he hit his head on concrete and in 2012 he was assaulted with a golf club to the left side of his head, suffering blunt trauma to the eye. On 21 April 2012, he had been involved in a motor vehicle accident as an intoxicated driver and had been shot by police. He suffered an episode of cardiac arrest as a bullet caused a laceration to the right cardiac ventricle and liver. He also suffered a compound fracture of the left ulnar. He underwent an emergency sternotomy and a repair of his right ventricle laceration, together with a liver resection. The following day he underwent a further surgery to remove bullet shrapnel and to internally fix a plate in his left ulnar. He was intubated for ten days in ICU at St. Vincent’s Hospital. The discharge summary went on to note behavioural and complex social issues which were longstanding. An audiology assessment showed bilateral permanent sensorineural hearing loss and hearing aids were recommended. It was further noted that his parents were separated and that there was a long history of domestic violence between his mother and father. He was referred to the Aboriginal Medical Service and to his paediatrician, Dr Patrick Ho.

20. Exhibit 1.2 was a psychiatric report of Dr Ursula Ptok dated 27 June 2012. Dr Ptok recorded that he had no recollection of the incident on 21 April 2012 when he was shot by police. She noted his difficult developmental history, growing up in a family affected by transgenerational trauma and abuse, domestic violence between his parents, delinquent/assaultative behaviours of several siblings and his numerous head injuries. She noted he had a close relationship with his mother but was living partly with his mother and partly with a brother. Dr Ptok recommended it was appropriate to deal with his matters pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 and set out a comprehensive treatment plan for him in the community.

21. Exhibit 1.3 comprised three letters from the Department of Family and Community Services (“FACS”) dated 6 July 2012, 6 January 2013 and 3 September 2013 respectively. That correspondence confirms Dr Ptok’s diagnosis that the offender has an acquired brain injury (“ABI”). The ABI resulted from him being hit by a motor vehicle at the age of 18 months. At the age of five years, he fell out of a tree and was unconscious for five minutes from a blow to his head. A psychologist reported in 2006 that his behavioural disorder “is influenced by the disinhibiting effects of his multiple head injuries…” He was also diagnosed with a mild intellectual disability.

22. He had been assessed in 2012 as having hearing difficulties and requiring a hearing aid. His cognitive problems included poor memory, concentration and a low average in processing speed with respect to comprehension. He had a reduced ability to learn, plan and problem solve and was diagnosed with borderline reasoning capability. He further exhibited poor impulse control and disinhibition with respect to authority as a probable result of his adaptive limitations.

23. The departmental officer was of the opinion that the offender met the criteria for Conduct Disorder (child-onset type) and ADHD. Unfortunately, services provided him with little benefit.

24. A letter dated 6 January 2013 to the presiding magistrate at the Children’s Court referred to the offender’s diminished intellectual capacity which prevented him responding appropriately to programs to develop prosocial thinking. It was likely the impact on his brain due to alcohol foetal syndrome which led him to presenting with a raft of symptoms consistent with that syndrome, including low cognitive functioning.

25. A further report dated 3 September 2013 outlined the support provided by Aging Disability and Homecare (“ADHC”) since July 2010. The report highlighted the offender’s problems, his complex needs and the need for positive educational experiences for him.

26. Exhibit 1.4 was a record of school achievement showing that in 2013 the offender had completed a number of life skills courses developed by the Board of Studies, together with mandatory curriculum requirements for years 7-10.

27. Exhibit 1.5 is a report from Ms M. Player, psychologist, dated 29 September 2014. Ms Player recorded the offender’s history of trauma outlined above, together with a further head injury sustained in 2007 when the offender fell and hit his head on hard ground. In 2011, he had been assaulted and struck to the left-side of the head with a golf club, damaging his right eye and leading to a cataract developing in that eye. In 2012, he was shot by police when involved in a police pursuit. Two bullets penetrated his body, damaging his heart, liver and left forearm. He was unconscious, required CPR and surgery whilst in Intensive Care. He was intubated for 10 days and not discharged from hospital until almost a month after his injury. In 2013, he suffered a further assault whilst in residential rehabilitation when he fell and hit his head. He was momentarily unconscious, felt dizzy and his vision was blurred. At some later point he lost vision in one of his eyes as his optic nerve detached, but he has since recovered his vision.

28. Ms Player noted the offender was diagnosed with ADHD in Year 1; however he refused to comply with his medication regime. He thereafter struggled with anger and impulse control throughout his childhood and adolescence.

29. The offender had a history of poor adjustment and engagement with formal schooling, being often truant from school.

30. The offender’s history included him being easily led by negative peer affiliation.

31. In 2014, he had been in residential drug treatment but had left the program early and relapsed into drug abuse.

32. Upon testing, the offender’s verbal comprehension skills fell in the range of profound impairment and were adversely impacting upon his life management and emotional regulation skills, impulse control and ability to make adaptive and reasoned choices. Similarly, his working memory capacity was limited. Ms Player opined that his cognitive profile suggests that he has sustained permanent brain injury that has impacted upon his verbal, language based expression, comprehension and reasoning skills. Ms Player found that he was fit to plead, however she made recommendations to facilitate his engagement in the court process and for his rehabilitation post-sentencing.

33. Exhibit 1.6 was titled “Report on COVID-19 and the Impact on NSW Prisoners” dated 16 April 2020. Exhibit 1.7 was a report titled “Updated Report on the Impact of COVID-19 Virus on the NSW Prisoner Population” dated 3 September 2021. The reports outlined the measures taken by Corrective Services to ensure the safety of the prison population during the COVID-19 pandemic and the numerous hardships imposed on individual prisoners resulting from those measures. It is well established that those hardships are relevant to the sentencing process. The reports further outlined the particular vulnerability to Indigenous prisoners as a result of the pandemic and the Delta variant thereof. It also highlights the “prison to community transmission”, which is a high-risk for Aboriginal communities in western NSW.

34. Exhibit 1.8 comprised three chapters of the Bugmy Bar Book, the relevant passages from which are referred to below.

The Crown submissions

35. The Crown relied on a written outline of submissions which outlined the details of the offences and the prescribed maximum penalties. The Crown submitted that the objective seriousness for the index offence, sequence 10, was below mid-range but not at the lower end. The Crown highlighted that when the vehicle which the offender was driving had its path blocked by police vehicles, the offender reversed it harshly into the front of a police vehicle and then accelerated harshly into another police vehicle. When ordered by police to open the doors, the offender did not comply and police were required to smash the driver-side window. The offender then attempted to flee from the vehicle and resisted police arrest. The Crown noted that the cost of the damage totalled $28,800 and that the offender had never held a driver’s licence.

36. The Crown submitted that the s 5 threshold in the Crimes (Sentencing Procedure) Act 1999 (“CSPA”) had been crossed and that a sentence of full-time imprisonment was the only appropriate option. In her oral submissions, the Crown rehearsed her submission that the objective seriousness of the offending did not fall at the lower end of the range of objective seriousness. The offender had a lengthy criminal history which included convictions for like offences. He had been imprisoned for three years and nine months in respect of the same offence, namely, use offensive weapon to prevent lawful detention, which involved him using a vehicle to resist arrest. He had been released on parole for a period of only five weeks before he reoffended.

37. The Crown submitted that the offender’s criminal history denied him leniency in sentencing, however it acknowledged that the principles in Bugmy v R (2013) 249 CLR 571; [2013] HCA 27 applied. The Crown further conceded that it was open to the court to find special circumstances.

The offender’s submissions

38. The offender also relied on a detailed written outline of submissions. It noted the offender’s plea of guilty was made at the earliest opportunity and therefore a 25% discount was appropriate. It was also conceded that a full-time custodial sentence was appropriate.

39. The offender submitted that the objective seriousness of the offending fell at the lower end of the range and because of the brief nature of the offending, “no police officer was in imminent danger as is often seen in offending of this type, and the distance travelled is small as the vehicle was boxed in.”

40. The offender conceded that an aggravating factor was that he was on parole at the time of the offence. He also conceded that he would be deprived leniency on account of his criminal record, although his record did not aggravate the offending. It was noted the offender suffered a facial injury as a result of the incident.

41. The written outline of submissions set out in detail the subjective circumstances to be taken into account. The offender was a man of Aboriginal heritage, who experienced a dysfunctional upbringing marred by multiple adverse events. He was born with foetal alcohol syndrome and had suffered a number of complicating symptoms as a result of that syndrome. He had a mild intellectual disability as a result of an ABI, which he sustained at the age of 18 months after being hit by a motor vehicle. Further, at the age of five years he had fallen out of a tree and suffered a brain swelling.

42. It was noted that the offender’s overall intellectual capacity fell in the extremely low (mild disability) range. In testing conducted in 2014, the offender’s verbal comprehension fell at the bottom 0.3% of children at his age. This capacity was commensurate with earlier testing in 2009 and had therefore been long-standing throughout his development. Further, in 2014, his working memory index was assessed at the extremely low to low-average range, performing better than 3% of children his age. His adaptive behaviour functioning fell in the extremely low to borderline range.

43. The offender’s upbringing as referred to in the multiple source documents outlined a history of deprivation, including a long history of domestic violence between his parents, periods of homelessness in his teenage years and transgenerational trauma and abuse.

38. The offender had also suffered hearing loss requiring the use of hearing aids and has impaired vision, which placed him at a disadvantage whilst in custody, as well as in the community. Moreover, at the age of 14 he had been involved in a pursuit with police and was shot by a police officer, causing damage to his heart, liver and forearm.

39. The offender had completed limited schooling however he appeared to have completed a life skills program at the Niland School.

40. It was submitted that the offender’s moral culpability was reduced in respect of the offending as a result of the combination of the factors outlined above. He was also at high risk whilst in custody of contracting COVID-19, being particularly vulnerable in light of his health issues. It was noted that he had received one dose of a vaccine.

41. The offender was at risk of institutionalisation. Since turning 18 some five years ago, he had spent over half that time (approximately three years and two months) in custody.

42. The written submissions outlined relevant content in Exhibit 1.8, the Bugmy Bar Book chapters. With respect to his exposure to domestic and family violence, it was submitted the following principles were of significance.

“a.    Exposure to domestic and family violence during childhood can manifest into intergenerational cycles of trauma, violence and disadvantage (par 2)

b.    It can result in behavioural problems, poorer academic outcomes, externalizing behaviours (aggression, lack of emotional control, disobedience), learning difficulties, depression and poor mental health, low school attendance and bullying (par 15)

c.    Ongoing exposure to violence has been associated with the highest likelihood of behavioural difficulties (par 21)

d.    Prolonged exposure to violence can cause children to experience trauma symptoms, including depression, low self-esteem, anxiety, poor coping mechanisms, suicidal thoughts, eating disorders, self-harm, and substance abuse (par 24)

e.    Living in a violent home can be a significant contributing factor to a range of serious health conditions including alcohol and drug abuse and depression and even early death (par 29 and 30).”

49. In respect of his interrupted school attendance, it was submitted the research demonstrates:

“a.    Diminished educational outcomes are a predictor for future contact with the criminal justice system, as well as poor health and well-being outcomes. (par 7)

b.    There are high rates of suspensions for students from economically disadvantaged backgrounds (par 11).”

50. In respect of the offender’s early exposure to alcohol and other drug abuse, it was submitted that the following findings are significant:

“a.    Parental alcohol misuse has been linked to increased risk of child abuse including physical abuse and exposure to family violence (par 12)

b.    The destabilizing effect of illicit drugs on a care givers’ mental state can make physical abuse more likely (par 13)

c.    Children of parents who misuse alcohol and drugs are at greater risk of subsequently developing alcohol and other drug problems themselves (par 23)

d.    Parental use of drugs can normalize their use and cause children to model a particular kind of coping behaviour (par 25).”

51. It was submitted that as a result of the offender’s traumatic brain injury and intellectual disability, he was an inappropriate vehicle for general deterrence, and that a custodial sentence may weigh more heavily on him in accordance with the principle in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

52. Finally, it was submitted that the court would find special circumstances based on the offender’s risk of institutionalisation and that he will require a significant period of time on parole to adjust to community life.

53. In her oral submissions, learned counsel for the offender described his upbringing as “fractured”. When not in custody, he had lived with either his mother or brother but had come under the care of FACS at a very young age. Whilst he had grown up predominantly in Mt Druitt, he had also lived in Redfern. It was submitted that a lifetime of deprivation by exposure to domestic violence, early introduction to drugs and alcohol and limited education, became entrenched by the time he was aged between 12 and 14 years and living in Mt Druitt.

54. Counsel submitted that he had pleaded guilty at the first available opportunity and the matter could have, but for the breach of his parole, been dealt with in the Local Court. In that case, the maximum jurisdiction of two years imprisonment would have applied.

55. Whilst it was conceded that the fact he was on parole at the time of the offending was an aggravating factor, it was important for the court not to double count it so as to punish the offender. As he was in custody from the date of his arrest, it was open to the court to backdate any period of custody to 5 August 2020.

56. Counsel rehearsed her submissions regarding the risk of institutionalisation on this young Indigenous man, who had spent more than half his adult life in custody. In assessing his prospects of success in rehabilitation, many issues needed to be taken into account, including his physical problems, intellectual and cognitive deficits and the fact that he was easily led by antisocial associates.

57. Notwithstanding that he was the driver of the vehicle concerned in the incident, the court would take into account the impact on him of having been shot by police at age 14 years, as giving rise to an entrenched anti-authoritarian background.

58. Counsel advocated a sentence of not greater than two years and a finding of special circumstances so as to provide for the offender’s unique needs. Whilst he has the support of his family (but not of his mother), he will require housing on release into the community. The court was asked to make a number of recommendations including assertive supervision to ensure his ongoing association with prosocial persons, a referral back to Weave and programs connected to his cultural background, including the “Tribal Warrior” Program, drug and alcohol rehabilitation and mentorship involving individual counselling programs for him to avoid antisocial peers and relapse into drug and alcohol abuse.

Determination

59. 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.”

60. I accept that the offending in respect of sequence 10 is below the mid-range of objective seriousness for an offence pursuant to s 33B(1)(a) of the Crimes Act 1900. It is not, however, at the lowest end of the range given the circumstances in which the offender drove a high powered vehicle, reversed into a police vehicle and then accelerated into a second police vehicle. Whilst the agreed facts do not outline any imminent danger to the police present, and the offending occurred over a short period of time, it did cause $28,800 in damage to the police vehicles and no doubt a level of apprehension in the police officers present. I therefore find the objective seriousness was between the middle of the low range and the mid-range of an offence pursuant to s 33B(1)(a), which does cover a wide range of criminal offending.

61. I note that the offending in the Form 1 matter, sequence 6, an offence pursuant to s 154A(1)(a) of the Crimes Act 1900 of take and drive conveyance without consent of owner, was also relatively serious offending under that section.

62. I have taken into account the maximum penalty of 12 years imprisonment for the offence pursuant to s 33B(1)(a) of the Crimes Act as a guidepost in sentencing. However, I accept that but for the breach of the offender’s parole, the matter could have been dealt with as a summary matter in the Local Court where the maximum penalty would be a period of two years imprisonment and/or a fine of 100 penalty units – see Zrieka v R (2012) 223 A Crim R 460; [2012] NSWCCA 44.

63. The offender entered his plea of guilty at the earliest opportunity and is entitled to the 25% utilitarian discount on sentence. It is also evidence of some remorse on his behalf.

64. Whilst it was unfortunate that the offender placed no contemporary psychological evidence before the court, given his long interaction with the criminal justice system, there was ample material establishing his lifetime of deprivation, his physical and cognitive deficits including an ABI resulting in a diminished intellectual capacity, verbal comprehension deficits, a working memory at a very low range and adaptive behaviour within a borderline range of functioning.

65. The offender’s personal history of injury, trauma and abuse, including being shot by police at the age of 14, evidence the effect of a lifetime of deprivation on him. In Bugmy v R (supra), 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 High Court also noted that Aboriginal Australians, whether they live in remote or urban communities, may be subject to the grave social difficulties discussed in R v Fernando (1992) 76 A Crim R 58 and Kennedy v R [2010] NSWCCA 260. Notwithstanding that the offending was similar to the offending which led to his previous incarceration, from which he was released on parole five weeks earlier, I am satisfied that the offender’s moral culpability for his inability to control his impulses must be substantially reduced.

66. In accordance with the principle in DPP (Cth) v De La Rosa (supra), I am also satisfied that the physical and cognitive deficits suffered by the offender make him an inappropriate vehicle for the application of general deterrence, which would otherwise be an important factor in sentencing here. His diminished moral culpability also diminishes the importance of specific deterrence in sentencing this offender. It was appropriate that this matter was not dealt with summarily, given all of the circumstances.

67. The offender has conceded that the threshold in s 5 of the CSPA has been crossed and I am satisfied that no sentence other than a term of imprisonment is appropriate in all of the circumstances. The offender is to serve the balance of his parole in any event until 29 June 2022. From the date of his arrest and incarceration on 5 August 2020 that represents approximately one year, 10 months and three weeks in custody.

68. I am satisfied that special circumstances pursuant to s 44(2) of the CSPA have been established here based on the offender’s risk of institutionalisation, even at such a young age, as he has already spent more than half of his adult life in custody. He will require a significant period of time on parole and close supervision to ensure the cycle of criminal offending and incarceration does not perpetuate. I intend therefore to make a number of recommendations for consideration as conditions upon his eventual parole.

69. I intend to sentence the offender to a term of imprisonment of three years and 10 months commencing on 5 August 2020 with a non-parole period of one year and 10 months, concluding on 4 June 2022. Upon his release to parole, I will make the following recommendations:

1. That the offender be subject to assertive supervision whilst on parole;

2. That he be provided appropriate housing;

3. That he be referred to Weave and/or appropriate cultural mentoring programs such as Tribal Warrior;

4. That he receive appropriate drug and alcohol treatment;

5. That he be subject to mentorship to enable him to avoid interaction with antisocial peers and otherwise be provided with relapse prevention counselling.

70. I certify that I have taken into account the matter on the Form 1.

71. In respect of the related matter subject to the certificate pursuant to s 166 of the Criminal Procedure Act, the offender will be convicted with no further penalty pursuant to s 10A of the CSPA.

Orders

72. I hereby order as follows:

1. You are convicted, pursuant to s 33B(1)(a) of the Crimes Act 1900, of the offence in sequence 10, use offensive weapon to prevent lawful detention.

2. I sentence you to a non-parole period of 1 year and 10 months, to commence on 5 August 2020 and to terminate on 4 June 2022.

The balance of the term will be a period of 2 years from 5 June 2020 to 4 June 2024.

3. On the related offence on the s 166 certificate, namely, sequence 9 pursuant to s 53(3) of the Road Transport Act 2013, you are convicted but no further penalty is to be imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.

4. You are disqualified from driving for a period of 12 months.

5. I make the following recommendations for consideration as conditions of your release to parole:

1. That you be subject to assertive supervision whilst on parole;

2. That you be provided appropriate housing;

3. That you be referred to Weave and/or appropriate cultural mentoring programs such as Tribal Warrior;

4. That you receive appropriate drug and alcohol treatment;

5. That you be subject to mentorship to enable you to avoid interaction with antisocial peers and otherwise be provided with relapse prevention counselling.

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Decision last updated: 24 September 2021