R v SLD (No 4)

[2024] NSWDC 594

District Court

New South Wales

Medium Neutral Citation:

R v SLD (No 4) [2024] NSWDC 594

Hearing dates:

12 December 2024

Date of orders:

16 December 2024

Decision date:

16 December 2024

Jurisdiction:

Criminal

Before:

Fitzsimmons SC DCJ

Decision:

(1)   I impose a sentence of imprisonment of 1 year 6 months to date from 24 October 2023 and to expire on 23 April 2025.

(2)   I impose a non-parole period of 1 year 1 month to date from 24 October 2023 and to expire on 23 November 2024.

(3) As the sentence imposed is less than 3 years, pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 the offender is taken to be to be subject to a parole order (being a “statutory parole order”) directing the release of the offender on parole at the end of the non-parole period (being 23 November 2024).

(4) Therefore, the offender is entitled to immediate release on a parole pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW).

Catchwords:

CRIME – sentence – high risk offender – failing to comply with extended supervision order – verdict following judge alone trial – prior breaches of extended supervision order

Legislation Cited:

Crimes (Administration of Sentences) Act 1999, s 158

Crimes (High Risk Offenders) Act 2006, ss 3, 12

Crimes (Sentencing Procedure) Act 1999, ss 3, 21A(2)(d), 21A(2)(j), 66

Cases Cited:

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

DC v R [2023] NSWCCA 82

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322

Monteiro v R [2022] NSWCCA 37

Muldrock v R (2011) 244 CLR 120

R v SLD (No 3) [2024] NSWDC 480

Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3

State of New South Wales v SLD (Final) [2023] NSWSC 978

Category:

Sentence

Parties:

Rex
SLD

Representation:

Counsel:
Mr D Bhutani (Offender)

Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Ryan Payten Le Lawyers (Offender)

File Number(s):

2023/00337580

Publication restriction:

In accordance with s 15A of the Children (Criminal Proceedings) Act 1987 there is to be a prohibition on the publishing or broadcasting of the offender's name with respect to these proceedings.

Judgment

1. The offender is to be sentenced with respect to one offence of fail to comply with extended supervision order contrary to s 12 of the Crimes (High Risk Offenders) Act 2006 (the Act) following a judge alone trial commencing 30 September 2024. A verdict of guilty was entered following judgment on 16 October 2024, whilst verdicts of not guilty were entered with respect to two remaining counts similarly alleging breach of s 12 of the Act (R v SLD (No 3) [2024] NSWDC 480 (the verdict judgment).

2. The maximum penalty for the offence, being five years imprisonment, acts as a sentencing guidepost or reference point.

3. Admitted on behalf the Crown were following:-

1. Indictment

2. Criminal history

3. Custodial record

4. Facts on sentence for H93643906 and H80434767, 20/09/2023

5. Remarks on sentence for H93643906 and H80434767, 20/09/2023

6. Report of Mr Sheehan, Forensic Psychologist dated 19 August 2023

7. Transcript of call audio file dated 11 March 2024

8. Transcript of call audio file dated 12 March 2024

9. Pages 64 – 65 of Corrective Services case notes

10. Sentencing Assessment Report

4. Admitted on behalf of the offender were the following:-

1. NDIS plan dated 10 November 2023

2. OIMS notes – 17/10/2024, 7/11/2024 and 11/11/2024

3. Summons dated 4 November 2024

The circumstances of the offending and assessment of objective seriousness

5. The circumstances in which the offending occurred is encapsulated in the verdict judgment.

6. The offender had been the subject of an extended supervision order in accordance with the orders of Campbell J: State of New South Wales v SLD (Final) [2023] NSWSC 978. The orders included a non-association condition with respect to children. In making the order, Campbell J found that the offender posed “an unacceptable risk of committing a serious violence offence" and posed “a high risk of committing a serious sexual offence" if not under such an order: [39]. His Honour further determined that the offender’s personality disorder and high degree of institutionalisation was such that the risk “could materialise spontaneously if he felt his demands were frustrated or thwarted". Further, the risk could materialise “with a degree of premeditation". This was in circumstances where the offender’s personality disorder rendered him “self-centred and unempathetic" and that the offender was liable to offend where his will was denied: [41].

7. The offence was committed during a visit to Bulli beach when the offender interacted with the child's mother whilst in the presence of the child. Although there was no direct interaction with the child, the topic of conversation was the child. The interaction was relatively brief lasting no more than several minutes.

8. I am not satisfied, as contended by the Crown, that the offending was such as to elevate, in any material way, the risk of the offender committing a serious violent or sexual offence, including the possible commission of an offence of the same kind for which the extended supervision order was imposed: Monteiro v R [2022] NSWCCA 37 at [36]. The offence occurred during the day in a public area attended by numerous people. The interaction was brief, and following an inquiry of the mother to the whereabouts of the child’s father, the offender promptly removed himself from their presence.

9. However, it must be acknowledged that the purpose of imposing an absolute prohibition on the association with children is an acceptance that the commission of a serious offence against a child might be initiated through an association with the child.

10. In all circumstances, I find that the offence falls towards the lower end of the range of objective seriousness.

The offender’s criminal history

11. In January 2001 the offender was sentenced to 20 years imprisonment with a non-parole period of 10 years following a plea of guilty to the charge of murder. It was this offence which was the basis of the extended supervision order. In September 2003 the offender was convicted of an offence of assault occasioning actual bodily harm and was subject to a control order (Campbelltown Children's Court). In October 2004 the offender was convicted and sentenced to a term of imprisonment for a further offence of assault law enforcement officer.

12. In December 2013 the offender was sentenced to a period of imprisonment for the offence of send document threatening death or grievous bodily harm. At the same time the offender was convicted and sentenced to a term of imprisonment for wound law enforcement officer.

13. More recently in September 2023 the offender was convicted and sentenced to a community correction order with respect to three offences of failing to comply with an extended supervision order in June and July 2023.

14. The breach which occurred in June 2023 was relatively minor involving the offender entering the room of a fellow resident of a facility. The two breaches in July 2023 arose from the same incident and were more serious. They involved the offender removing a razor blade from a shaver and inflicting self-harm associated with threats of inflicting further self-harm such that it constituted behaviour that interfered with the offender’s supervision.

15. I accept the offender’s submission that the prior offences do not constitute an aggravating circumstance for the purpose of s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (the CSPA). However, it disentitles the offender to leniency that would otherwise be afforded to an offender with no prior criminal history.

The offender was on conditional liberty at the time of commission of the offence

16. As conceded by counsel for the offender, an aggravating factor pursuant to s 21A(2)(j) of the CSPA is that the offender was on conditional liberty at the time of the commission of this offence (community correction orders). It is not without significance that the offence for which the offender is to be sentenced was committed within a month of the orders having been made and within three months of those earlier offences having been committed.

Facilitating the administration of justice

17. I accept the submission of counsel for the offender that a mitigating factor is that the offender did not dispute the essential facts constituting the offence, reflecting a desire to facilitate the administration of justice. Rather, the defence case was that the agreed facts did not constitute associating with a child prohibited by the extended supervision order. Whilst it has been taken into account as a mitigating factor, as conceded by counsel for the offender in oral submissions, it is not of such significance that the quantification of a discount is necessary: Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322 at [98] to [105].

The offender’s subjective circumstances

18. I have considered the report of Patrick Sheehan Psychologist dated 18 August 2023 and the accompanying treatment plan.

19. The offender was in full-time custody since the age of 13 until his recent release. As a result, his formative teenage years were spent in juvenile detention before being moved to an adult correctional facility. As Patrick Sheehan observed: –

“[SLD] is known to have had a very poor start to life and could rightly be described as being born into circumstances of social deprivation".

20. Early reports indicated maternal heroin use during early stages of pregnancy and entry into a methadone program at 7/12 gestation. The offender’s general paediatric development was impaired. Two older siblings were stillborn due to his mother's drug use and a surviving older brother was made a ward of the State in 1989. His biological family were the subject of various notifications relating to emotional, physical and sexual abuse culminating in the offender and his sibling being taken into State care in 1990.

21. Whilst the offender accepted that at the age of six he was placed in a stable foster home, and adopted, he was subjected to strict discipline involving corporal punishment. His tumultuous early years developed into significant behavioural issues and anti-social behaviour. The offender also claimed that he was sexually abused by his older brother at the age of 10.

22. In the circumstances, it is unsurprising that the psychologist observed that the offender has had poor social adjustments since childhood and that his subsequent antisocial behaviours alienated him from other children and removed the opportunity for positive socialisation with his peers during his most formative years.

23. In the circumstances, I accept the offender’s family environment in his early years documented in the psychologist’s report is particularly relevant in determining an appropriate sentence and, to an extent, his moral culpability ought to be reduced: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [42] - [44]. However, as the High Court further observed in Bugmy, the Court cannot ignore the offender’s personality disorder, manifesting itself in his behaviour, including since release, in considering protection of the community and specific deterrence: at [44] to [45].

24. Further, I have taken into account the observations of Mr Sheehan that the offender has been diagnosed with a rare genetic syndrome associated with increased impulsivity, distractibility and difficulties with anger control in addition to the suggestion that the syndrome is linked to higher rates of anti-social features.

25. I am satisfied that the offender’s anti-social personality and developmental delay contributed to the commission of the offence given the circumstances and manner of the interaction with the child’s mother and accordingly the offender’s moral culpability is reduced: Muldrock v R (2011) 244 CLR 120; DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; DC v R [2023] NSWCCA 82.

Other sentencing considerations

26. I accept the Crown's submission that general and specific deterrence remain relevant in the sentencing exercise, although I further accept the offender’s submission that, given the circumstances of the offending, it is not the paramount consideration. The offender has demonstrated through his prior behaviour that he will not comply with conditions of the order with which he does not agree.

27. The sentencing assessment report dated 2 December 2024 records that the offender, whilst expressing a willingness to comply with the conditions of any extended supervision order, stated that if he felt a condition or direction was unreasonable he would essentially ignore them. This is consistent with the further observations of the author of the report that the offender’s interim and extended supervision had been “marked by statements and actions that confirm he is willing to purposely not adhere to conditions he does not agree with and engage in deception to circumvent detection breaches of his conditions". This is further demonstrated by the offender’s previous convictions for failing to comply with orders. It is also consistent with statements made by the offender in recorded calls with Mr Burton on 11 March 2024 and the Corrective Services case note dated 29 March 2023.

28. In determining the appropriate sentence, the Court cannot lose sight of the fact that the primary object of the making of supervision orders is to ensure the safety and protection of the community: s 3 of the Act. The offender’s previous statements regarding his attitude towards compliance with the extended supervision orders, and his previous convictions for failing to comply with previous supervision orders, does demonstrate the offender’s unsatisfactory attitude towards compliance with the orders.

29. That said, the further object of the Act is to encourage rehabilitation consistent with s 3A of the CSPA. As counsel for the offender quite properly conceded in written submissions, the offender’s prospects of rehabilitation must be considered as guarded.

30. Whilst the existence of a NDIS plan, documented in the offender’s material, will help to support the offender upon his release, given the offender’s prevailing and persistent attitude to some terms of the extended supervision order this is of limited significance in considering the prospects of rehabilitation.

31. Whilst the ongoing extended supervision order requires the offender to be within the line of sight of Community Corrections staff or their delegate, the Court cannot ignore the evidence adduced at trial. I am satisfied beyond reasonable doubt that this particular condition was not adhered to by the nominated delegate of Community Corrections. Indeed, it is concerning that despite the offender’s history of non-compliance with previous supervision orders occurring only a matter of months prior to the present offending, and which included an element of violence on the offender’s behalf, the offender was permitted to attend a beach where many children were present in circumstances where the apparent supervisor of the offender was ill-equipped by reason of his training and/or inexperience to adequately fulfil this important role.

32. I accept the offender’s submission that this was not a circumstance within his control, and he should not be penalised for it. However, it is relevant to the offender’s submission as to the prospects of rehabilitation. Whilst the Court is entitled to expect the terms of any supervision order will be adequately implemented, the circumstances in which the offending occurred cannot be overlooked.

33. That said, I accept the Court should take into account that the offender will be under an onerous and strict regime of supervision contemplated by the supervision order until November 2029.

34. Whilst it is submitted on the offender’s behalf that a finding of special circumstances ought to be made given the offender will be subject to strict supervision when released, further promoting his opportunity for rehabilitation, it is of no practical consequence given the sentence I intend to impose.

35. I am satisfied that given all relevant considerations the section 5 threshold has been crossed and that no sentence other than imprisonment is appropriate. In all the circumstances, an appropriate sentence is a term of imprisonment of 1 year 6 months and a non-parole period of 1 year 1 month.

36. In circumstances where the offender has been sentenced to a sentence not exceeding two years, it is necessary to determine whether the sentence is to be served in full-time custody or in the community by way of intensive correction order.

37. Section 66 of the CSPA provides as follows: –

“66 Community safety and other considerations

(1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.

(2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending.

(3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.”

38. In Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, Gordon, Edelman, Steward and Gleeson JJ observed: –

“[73] The identification of community safety in s 66(1) as the "paramount" consideration also indicates that s 66 is concerned with an aspect of the sentencing task that requires the sentencing court to have a particular and different focus at the third stage of the three-step process described earlier. When the court is deciding the discrete question whether or not to make an ICO, community safety is the consideration to which other considerations are to be subordinated, although other considerations must or may be taken into account as prescribed by s 66(3)[89].

R v Pullen (2018) 275 A Crim R 509 at 531 [86]; Mandranis v The Queen (2021) 289 A Crim R 260 at 270-271 [50]-[51]; cf Fangaloka [2019] NSWCCA 173 at [61].

[74] Section 66(2) explains how the sentencing court must engage with the paramount consideration of community safety. For the purpose of addressing community safety, s 66(2) requires the sentencing court to undertake a task of assessing the possible impacts of an ICO or full-time detention on the offender's risk of reoffending. Section 66(2) gives effect to Parliament's recognition that, in some cases, community safety will be better promoted by a term of imprisonment served in the community than by full-time detention. Section 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety. Thus, s 66(2) requires the sentencing court to look forward to the future possible impacts of the sentence of imprisonment, depending upon whether the sentence is served by way of full-time detention or by way of intensive correction in the community.

[75] The assessment required by s 66(2) is not determinative of whether an ICO may or should be made. To the contrary, as is plain from s 66(3), the assessment is required for the purpose of addressing community safety as the paramount, but not the sole, consideration in deciding whether or not to make an ICO. Thus, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). In that respect, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending.

[76] That said, community safety will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive. There may be cases where a court cannot be satisfied whether serving a sentence by way of intensive correction in the community or serving a sentence in full-time custody would be more likely to address reoffending. In those cases, other factors will assume significance and will be determinative. On the other hand, there will be cases where a court concludes that serving the sentence by way of intensive correction in the community is more likely to address reoffending.”

39. Given the offender’s previous convictions for failing to comply with supervision orders and his ongoing attitude towards such orders I am overwhelmingly satisfied that serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending and will meet the paramount consideration of community safety.

40. The offender has been in custody since his arrest for this offence on 24 October 2023. Despite the Crown's summary that the offender has been in custody since that date for this offence, and no written submission to the contrary, it was contended on the sentence hearing that the Court would take into account that in the intervening period the offender was arrested and charged for other offences for which he was bail refused. I was informed on the hearing that the offender was recently acquitted of those charges. I do not accept the Crown’s submission. The reality is that the offender has been in custody since the date of his arrest for this offence. Accordingly, the sentence is to be backdated taking into account this period spent in custody.

Orders

1. I impose a sentence of imprisonment of 1 year 6 months to date from 24 October 2023 and to expire on 23 April 2025.

2. I impose a non-parole period of 1 year 1 month to date from 24 October 2023 and to expire on 23 November 2024.

3. As the sentence imposed is less than 3 years, pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 the offender is taken to be to be subject to a parole order (being a “statutory parole order”) directing the release of the offender on parole at the end of the non-parole period (being 23 November 2024).

4. Therefore, the offender is entitled to immediate release on a parole pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW).

Decision last updated: 16 December 2024