R v Stoll; R v McGrath; R v Smith; R v Triffit

[2022] NSWDC 612

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v STOLL; R v McGRATH; R v SMITH; R v TRIFFIT [2022] NSWDC 612

Hearing dates:

21 October 2022

Date of orders:

8 December 2022

Decision date:

08 December 2022

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Sentenced - see paragraphs [189] - [194]

Catchwords:

Sentence – grievous bodily harm with intent – extended joint criminal enterprise – differing considerations for each offender – fact finding after trial by jury – sentencing court not obliged to find facts most favourable to offender

Legislation Cited:

Crimes Act, 1900

Crimes (Sentencing Procedure) Act, 1999

Criminal Procedure Act, 1986

Drug Misuse and Trafficking Act 1985

Cases Cited:

Bugmy v The Queen [2013] HCA 37

Cheung v The Queen (2001) 209 CLR 1

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

Dungay v R [2020] NSWCCA 209

Filippouv The Queen (2015) 256 CLR 47; [2015] HCA 29

FS v R [2008] NSWCCA 301

Hoskins v R [2016] NSWCCA 157

Kinchela v R [2010] NSWCCA 167

Knight v R [2010] NSWCCA 51

Mbele v R [2021] NSWCCA 182

McCullough v R [2009] NSWCCA 94

Muldrock v The Queen [2011] HCA 39

Nowak v R [2008] NSWCCA 89

Quinn v DPP (Cth) [2021] NSWCA 294

R v AD [2008] NSWCCA 289; (2008) 191 A Crim R 409

R v Anderson [2012] NSWCCA 175

R v Elphick [2021] NSWDC 1

R v Mitchell and Gallagher [2007] NSWCCA 296

R v Quinlan [2021] NSWCCA 284

R v Storey is reported at [1998] 1 VR 359

R v Sukkar (2006) 172 A Crim R 151,

R v Talamalie & ors [2020] NSWDC 229

Strbakv The Queen (2020) 94 ALJR 374; [2020] HCA 10

Tepania v R [2018]NSWCCA 247

The Queen vOlbrich (1999) 199 CLR 270; [1999] HCA 54

Thurlow v R [2022] NSWCCA 20

Toller v R [2021] NSWCCA 204

Valentine v R [2020] NSWCCA 116

Category:

Sentence

Parties:

Regina
George STOLL
Haydn Patrick SMITH
Sara Anne McGRATH
Bradley TRIFFIT

Representation:

Counsel:
Mr M Pincott, Crown Prosecutor
Mr S Bouveng for the offender Stoll
Mr C Heazelwood for the offender Smith
Mr D Roff for the offender McGrath
Mr B Hart for the offender Triffit

Solicitors:
Ms S Ingold for the Office of The Director of Public Prosecutions
Ms H Skinner for the offender Stoll
Mr G Reynolds for the offender Smith
Mr M Bowe for the offender McGrath
Mr P Keane for the offender Triffit

File Number(s):

2020/175922 (Stoll)
2020/167043 (Smith)
2020/167076 (McGrath)
2020/240980 (Triffit)

Publication restriction:

No

REMARKS ON SENTENCE

1. On 23 June 2022 at the Wagga Wagga District Court each of the offenders appeared for trial and each pleaded not guilty to an indictment on which they were charged jointly that:

1. On 14 May 2020 at Junee in the State of New South Wales caused grievous bodily harm to Tim Orr with intent to cause grievous bodily harm; and further in the alternative to that count, that they

2. On 14 May 2020 at Junee in the State of New South Wales wounded Tim Orr with intent to cause grievous bodily harm.

2. The offender Triffitt was charged by himself with another offence of which he was ultimately acquitted by the jury. However, on 5 July 2022 the jury returned a verdict of guilty against each of the accused in respect of the primary charge of Cause Grievous Bodily Harm with Intent contrary to s 33(1)(b) of the Crimes Act, 1900. As the offenders pleaded not guilty and put the Crown to proof there can be no discount or consideration for a plea of guilty. That is not to suggest that the penalty is increased by reason of the offenders putting the Crown to proof – merely that there can be no discount or consideration for a plea of guilty.

3. The maximum penalty provided in respect of the offence of which the offenders were found guilty is 25 years imprisonment. Parliament has specified a standard non-parole period of 7 years in respect of that offence.

4. A number of the offenders also appear for sentence in respect of a number of matters attaching to Certificates pursuant to s 166 of the Criminal Procedure Act, 1986. It is appropriate that those matters be dealt with pursuant to the provisions of s 10A of the Crimes (Sentencing Procedure) Act, 1999 i.e. a conviction be recorded but no further penalty be imposed.

Facts

5. The day after the verdicts were returned, I had my Associate circulate to counsel a document I prepared indicating my preliminary view of the facts. After hearing oral submissions, it seems that no significant issue is taken with those suggestions however it will be necessary for me to review some of the evidence at the trial, in particular some of the exhibits in order to establish the facts for the purposes of sentence beyond reasonable doubt.

6. To make what follows more comprehensible the case relates to an incident that occurred in the home of the offender McGrath at Junee in the early hours of the morning of 14 May 2020. McGrath had previously been in a relationship with Timothy Orr, the victim in the matter. For some days before 14 May 2020 there was significant contact between Smith and McGrath by text messages. Clearly there was significant planning especially by Smith and McGrath to the effect that the victim would be assaulted. There was also contact between all four offenders by way of text messages and telephone. The victim spent several hours at McGrath’s home on the evening and night of 13 May 2020 after which he went home but returned to McGrath’s residence in the early hours of the morning of 14 May 2020. The offender Stoll went to that house arriving at a time after the victim had returned. The offender McGrath and Stoll were in a bedroom together with the victim for some time. McGrath left the room during which time Stoll struck the victim across the face with a machete causing injuries that the jury was satisfied amounted to grievous bodily harm. The victim significantly injured Stoll with a knife immediately after he (victim) was struck with the machete. Smith and Triffitt arrived at the scene very quickly and took Stoll to the Junee Hospital. The Crown case at trial relied on extended joint criminal enterprise.

7. Mr Heazelwood of behalf of the offender Smith submits relying on the decision of Cheung v The Queen (2001) 209 CLR 1 that I am obliged to find the facts most favourable to the offender. It is appropriate to consider the authorities on fact finding after a jury verdict. What follows in reviewing the authorities is largely drawn from what I said in R v Talamalie & Ors [2020] NSWDC 229 at [15]-[23].

8. Gleeson CJ, Gaudron, Hayne & Callinan JJ in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] said:

“As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey - that a sentencing judge

‘may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.’"

R v Storey is reported at [1998] 1 VR 359.

9. At p 2 of his written submissions on sentence Mr Heazelwood of counsel for Smith puts:

“After verdict Cheung v The Queen (2001) 209 CLR 1 summarised what previously been said in R v Isaacs as follows:

* Punishment is a matter for the Judge

* Judge’s duty is to determine the facts

* This determination must be consistent with the verdict

* Judge must be satisfied beyond reasonable doubt as to findings against the offender

* Because of the point immediately above that really means that the view of the facts to be taken is that which is most favourable to the accused

10. It is instructive to go to the decision of Cheung v The Queen. At [14] in their joint judgment Gleeson CJ, Gummow & Hayne JJ said:

“In Isaacs the Court of Criminal Appeal summarized certain well-established principles concerning the law and practice of sentencing in New South Wales as follows[11] (omitting references to authority):

‘1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury ...

2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. ...

3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. ...

4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.

5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. ... However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. ...’”

11. Even accepting what counsel for Smith submits it seems to me that the statement that because any reasonable doubt must be resolved in favour of the offender, the judge is required to sentence him on the basis of facts which are most favourable to him should be read with the words “according to the evidence” immediately following. It cannot be that a sentencing court is obliged to find the facts in order to proceed to sentence as an offender submits they ought to be.

12. There is of course the more recent decision of Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29. In that decision French CJ, Bell, Keane & Nettle JJ said at [64]:

“But, as was established in R v Olbrich, a sentencing judge may not take facts into account in a way that is adverse to an offender unless those facts have been established beyond reasonable doubt and, contrastingly, the offender bears the burden of proving on the balance of probabilities matters which are submitted in his or her favour. Where, therefore, the prosecution fails to prove a fact or circumstance which is adverse to the offender, but the judge is not satisfied on the balance of probabilities of an alternative version more favourable to the offender, the judge is not bound to sentence the offender on a basis which accepts the accuracy of the more favourable version. If the prosecution fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the offender but the offender fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the offender, the judge may proceed to sentence the offender on the basis that neither of the competing possibilities is known. As was stated by the majority in Olbrich:

‘[W]e reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. The incongruities that would result if this submission were accepted are well illustrated by the present case. The respondent swore that he was a courier but the judge disbelieved him. To require the judge to sentence the respondent on the basis that he was a courier is incongruous.’"

13. Their Honours went on to say at [70]:

“Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability. Even so, it is sometimes not possible for the judge to ascertain everything which is relevant, especially where an offender chooses not to offer any evidence on the plea. Where that occurs, the judge must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard. As was stated in Weininger v The Queen:

‘The sentencing judge may not be able to make findings about all matters that may go to describe [the] circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt. Accordingly, in the particular facts of Olbrich, where the offender asserted that he was no more than a courier of the drugs, but the sentencing judge disbelieved him, it was neither necessary nor appropriate to sentence him on the basis that he was a courier.’"

14. That accords with the requirements in s 21A(1) of the Crimes (Sentencing Procedure) Act, 1999 that facts be taken into account only in so far as they are "known to the court" according to the principles of proof laid down in Olbrich.

15. Further, none of the counsel made any submissions about the decision of the High Court of Australia in Strbak v The Queen (2020) 94 ALJR 374; [2020] HCA 10. In that decision the Court (Kiefel CJ, Bell, Keane, Nettle & Edelman JJ) said at [13]:

“When sentencing an offender where there is a dispute as to the facts constituting the offence, the judge should not draw an adverse inference by reason of the offender's failure to give evidence save in the rare and exceptional circumstances explained in the joint reasons in Azzopardi v The Queen. It follows that the appeal must be allowed, the appellant's sentence quashed and the matter remitted to the Trial Division of the Supreme Court of Queensland for the appellant to be sentenced according to law.”

Facts

16. Clearly enough and consistent with the jury’s verdict there was a plan developed between the offenders but in particular Smith and McGrath that the victim, Timothy Orr (the victim) would be attacked at the home of McGrath on the night of 13 May 2020 or the early hours of the morning of 14 May 2020. Again, consistent with the verdict, the offenders Stoll and Triffitt were aware of the plan and had some part to play in that planning.

17. The victim had been in a relationship with the offender McGrath. They had met in 2017. A son Kaden was born of that relationship in 2018. The relationship was dysfunctional and marked by use of illicit substances by both of them and domestic violence perpetrated by the victim. The victim described the relationship as being “on and off”. There were arguments about Kaden’s welfare. In early May 2020 there was an incident where Kaden went to the home of a friend for a sleepover. McGrath called the victim who collected the child and thereafter the child stayed with him. Both the victim and McGrath were using illicit drugs at that time.

18. Trial exhibit “U”, a chart showing call charge data between the four offenders, shows that there was contact between Smith, Triffitt and McGrath from the very early hours of 12 May 2020. There is communications involving the offender Stoll from the early afternoon of 12 May 2020. Trial exhibits “S” and “T” set out the content of text messages between the offenders. Exhibit S also sets out the content of text messages between the victim and McGrath. Clearly there was significant animosity between them. That animosity related to issues between them concerning the child Kaden.

19. Trial exhibit T sets out that on 12 May 2020 the following exchange of messages occurred between the victim Orr and the offender McGrath:

“McGrath:   I don’t want you I just want Kaden

McGrath:   I’m not home dickhead and I’ll repeat my earlier statement…I don’t want you I just want Kaden

Orr:   well fuckbu (sic) then you lying dog see I knew it

Orr:   You are a lying cunt Sarah fuck yiu (sic)

McGrath:   What am a lying about

…

McGrath:   Because I don’t want to be with you that means I lose my son?? Nah matey I’ll see you in court

Orr:   Yesbit (sic) does dog cos you don’t look after him just like your girls

McGrath:   Fuck off you know nothing about what happened with my girls. I hate your guts I’m coming to sort this now

McGrath:   Who’s this

Triffitt:   Fox call me its Triff (Fox is a reference to McGrath)

Orr:   (to McGrath) Go away fuckhead you had your chance and blew it ok

…

Orr:   You thought I was gunna put up with how you were taising (sic) him you were sadly mistaken and guess wat don’t need viagara.ha

…

McGrath:   Rito fuck you dog”

20. Beginning at 18:48 on 12 May 2020, McGrath sends Smith two messages, namely “Orry has nothing what a waste of time” and “He’s gotta get on wait till I say ok”. A little later at 20:13 on 12 May 2020, Smith sends McGrath a message, “why do u ask foxy il (I’ll) be out n about soon do you need me or want to see me? X” The parts of the extracts not set out were exchanges between McGrath and Nathan Standford. At 20:25 on 12 May, McGrath sends Smith a message, “Tell Tiff [reference to Triffitt] no good yet need to meet and talk about plan b”. There is a series of messages between McGrath and Smith between 00;14 and 10:18 on 13 May 2020.

21. On 13 May 2020 there was a deal of communication between the victim Orr and the offender McGrath. McGrath wished to see the child and the victim agreed to that. It was arranged that the victim would take the child to McGrath’s residence. At trial (p 24:09 and following) the victim correctly described the exchanges as argumentative. The victim’s mother dropped the victim and the child at McGrath’s home at about 5.30 pm or a little later on 13 May 2020.

22. Beginning at 17:29 on 13 May 2020 there was the following series of messages:

“Smith to McGrath:    “fuck me triffet hasn’t come back so no seeing my kids tonight. I’m disappointed as fuck.x”.

McGrath:   Weak as hey

McGrath:   Was nice of the big fella to promise me a couple then not come back

…

McGrath:   Too late now. I did say I didn’t have long like 30 mins ago when you weren’t going to be long

McGrath to Orr:   I’m going to et mike I’ll msg you when I’m home

…

McGrath to Smith:   Don’t bother coming

McGrath to Orr:   Oi

McGrath to Orr:   Are you still coming”

23. Significantly at 19:41 McGrath sends Smith a message, namely, “Please promise me nothing will happen till I give the okay…I want Kaden to be in bed asleep xx”. McGrath then sends Triffitt a message, “Tell painter to read his messages please”. Triffitt replies, “Kk”. There is then a number of messages between McGrath and Smith:

“Smith:   I give u my word, leave your laundry door unlocked the side gate adjar (sic) so it can be opened go over to big girls or tashes place to have a ciggie n coffee.

Smith:   tx me 5 mins before you go itl (sic) take them ten min to get there tops 5 min orso to work it then youll come home to the bloke you hate. Let no one near your ph

Smith:   you know nothing say you nothing be upset il (sic) see you after that. you got to watch crossing master fox it was always going to be this way. je ne regrette ren. im doing a major favor tonight for someone I adore please never under estimate that. Don’t waste time cos the karma train doesn’t like delays.xxx

McGrath (to Smith):   You know I’m very fond of you master fox xx I’ve got butterfly’s how stupid hey. If I can’t go anywhere I’ll just go to kadens room when they get here.

McGrath:   Do you know how good it is to have my baby home. You will hear from me when kadens asleep xx he’s still up and running at the moment

Smith (to McGrath):   try n be in kitchen or pegging clothing maybe lounge room then tend to your baby. they might come over the rear fence. im happy for you about baby boy being home. I understand your butterflys but Im excited I might get a carton of beer bought for me ha ha. Heres to a better life xx

McGrath:   Kaden’s still awake xx

Smith:      to easy let me know when you are good. Xx

McGrath:   I will

McGrath:   Kadens asleep but I’m not ready have to unlock the door n shit. Will msg you soon xxx

Smith:   no worries I smell pay back

McGrath:   Good

McGrath:   Doors open

McGrath:   He’s calling a taxi fuck me

Smith:   he’s leaving the baby yeah? Where is he going home?

McGrath:   Yes and not sure

McGrath:   I assume so but you never know

McGrath to Triffitt:   I have a phone for you to look at

McGrath to Smith:   Are you coming

Triffitt to McGrath:   Oh yeah what is it?

McGrath to Triffitt:   It’s a phone someone left here not long ago

Triffitt to McGrath:   Oh yeah you alright?

McGrath to Triffitt:   Yeah he wanted to fly into me but was more worried about getting out of here

Smith to McGrath:   fuck me thatl do me. Fuck fuck fuck at least u have little boy. did you warned (sic) or gave him a hint? that’s fuckn strange normally you have to beat him out the door

McGrath to Smith:   I swear to you on dad I didn’t give him a hint I’m not that stupid…he’s run straight home to protect his precious

McGrath to Smith:   He wants to come back

McGrath to Triffitt:   Don’t do it he has a fucking huge machete

McGrath to Triffitt:   We will do it when he leaves??

Smith to McGrath:   how are we looking Sarah

McGrath to Smith:   No he has a huge machete

McGrath to Smith:   No go I’m serious

Smith to McGrath:   he’s been warned he stil going to getting (sic) it

McGrath to Smith:   No I didn’t warn him

McGrath to Smith:   Wait till he leaves here or something

McGrath to Smith:   I don’t want to get in the middle of a knife fight

McGrath to Smith:   So tell me what it (sic) going on

Standford to McGrath: Triff ain’t got his phone”

24. At the trial the Crown relied very heavily on the messages that are set out within exhibit T to prove beyond reasonable doubt the joint criminal enterprise and the agreement between the four offenders. Consistent with the verdict of the jury clearly there was an agreement between the four offenders that the victim would be assaulted. Those messages clearly demonstrate that each of the four offenders were part of the agreement and that they were in contact with each other up until very close in time before the victim was actually attacked.

25. Exhibit U sets out the calls and messages made between the phones of the four offenders. The content of the messages are not included. Triffitt called Smith six times in the early hours of the morning (00:44) of 12 May 2020 but the calls were of short duration. Triffitt either calls or sends a message to Smith a further five times between 3.11 am and 9.10 am on 12 May 2020. Smith also phoned or sent messages to Triffitt a number of times in the early hours of the morning of 12 May 2020. There were also a large number of calls between Smith and McGrath. Triffitt sent a message to Stoll just after 2pm on 12 May 2020. Triffitt called McGrath at 5.36 pm on 12 May 2020. Triffitt called Smith and had two short calls (each 27 seconds) at 6.18pm on 12 May 2020. At 6.29 and again at 6.33pm on 12 May 2020 Triffitt called Stoll. From 8.52 Smith either called or attempted to call Triffitt a number of times. The call records show that Smith and McGrath were in very regular contact with each other.

26. At 8.51am on 13 May 2020 Smith calls McGrath and then very soon thereafter calls Triffitt twice but for a very short time on each occasion. From 11.45 to 11.58 there are a number of calls and messages made between Triffitt and Smith. McGrath calls Triffitt at 12.02 and 12.11 pm on 13 May 2020. Triffitt calls Stoll at 2.46 pm, again at 3.52 pm and again at 4.45 pm and 4.57pm on 13 May 2020.

27. Continuing with the calls Triffitt send a message to Stoll at 5.03pm. Smith calls Triffitt at 5.25 pm. Stoll calls Triffitt at 5.43 pm and 6.16pm. Smith sends a message to Triffitt at 6.54pm and immediately thereafter there are a number of very short calls from Triffitt to Smith. Triffitt sends a message to Smith at 7.58pm. There are further messages and calls after that. Smith calls Triffitt at 8.28pm. From 8.46pm (13 May 2020) to 8.59pm there are a number of messages from Triffitt to Smith and Smith to Triffitt. There is also a call from Triffitt to Smith. Again, there is a large number of calls between Smith and McGrath.

28. Smith calls Triffitt at 11.12pm on 13 May 2020. From 11.19 pm there is a number of calls made by Smith to Triffitt and at 11.56 pm Stoll makes a number of calls to Triffitt at 26 minutes past midnight and Stoll sends a message to Triffitt one minute later. Triffitt sends a message to McGrath at 33 minutes past midnight and then a minute later sends a message to Smith. McGrath and Smith both respond by message very quickly. There is a further exchange of messages between Triffitt McGrath and Smith commencing at 35 past midnight. At 57 past midnight (3 minutes to 1 am) Triffitt calls McGrath and a minute later Smith calls Triffitt.

29. McGrath sends a message to Triffitt at 1.46 am on 14 May 2020. There are a number of messages between Smith and McGrath after that.

30. McGrath makes a triple-0 call at 02:52:53 on 14 May 2020. It can be safely assumed that the injury to the victim has been occasioned by that time. At 7.34 am on 14 May 2020 Triffitt calls Smith and Smith calls Triffitt at 8.40 am.

31. It was necessary to go into some detail of the calls and messages for a number of reasons. One is to deal with the Crown’s submission that there was substantial planning as to enliven the statutory factor of aggravation within s 21A(2)(n) of the Crimes (Sentencing Procedure) Act. Another is to deal with the oral submission made by the Crown that the offender Triffitt was the “lynch pin” between Stoll (who actually assaulted the victim) and Smith and McGrath. Another reason is to deal with the submission on behalf of Triffitt that he (Triffit) played a limited role in the joint criminal enterprise and his culpability is less than the co offenders. Another reason is to set out the interaction between these four offenders as the actual events in McGrath’s house unfolded.

32. I could not be satisfied to the criminal standard that it was ever the intention of the participants in the joint criminal enterprise that the victim would actually be struck with a machete. This is no doubt the reason why the Crown relied on extended joint criminal enterprise at trial. However, there was clearly an agreement that the victim Timothy Orr would be assaulted. As much is clear from the verdict of the jury so far as each of the offenders is concerned.

33. So far as whether the Crown can establish beyond reasonable doubt that s 21A(2)(n) of the Sentencing Act is enlivened, I note that the whole of the Crown case in the matter was one of extended joint criminal enterprise. It is obvious that if there is a joint criminal enterprise that there must have been an agreement between the parties to commit a criminal offence. In the matter under consideration that was an assault on Timothy Orr.

34. In Kinchela v R [2010] NSWCCA 167. Kirby J (Hodgson JA, Whealy J agreeing) said at [49]-[50]:

“Here, counsel for the applicant complained that his Honour wrongly viewed the offences of aggravated break, enter and steal (Count 3) and robbery in company (Count 5) as having been aggravated by reason of s 21A(2)(n). Attention was drawn to Fahs v Regina [2007] NSWCCA 26, where Howie J said this (Simpson and Buddin JJ agreeing): (at [21])

‘The aggravating factor under s 21A(2)(n) is that 'the offence was part of a planned or organised criminal activity'. The wording of this provision seems to me to convey more than simply that the offence was planned. The fact that there was a 'level of planning in the offences' as found by the Judge does not necessarily give rise to the aggravating factor in s 21A(2)(n). In R v Wickham [2004] NSWCCA 193 the Court stressed the importance of making findings under s 21A in accordance with the words of the provision.’”

35. James J (McClellan CJ at CL, Rothman J agreeing) in Knight v R [2010] NSWCCA 51 at [16]:

“Section 21A(2)(n) has been the subject of interpretation by this Court. See for example R v Yildiz (2006) 160 A Crim R 218; Fahs v R [2007] NSWCCA 26; Hewitt v R (2007) 180 A Crim R 306. It has been consistently held by this Court that a sentencing judge should not find that the aggravating factor in s 21A(2)(n) was present, unless there is evidence that would permit a finding beyond reasonable doubt that the degree of planning in the instant case exceeded the degree of planning which would ordinarily be expected in an offence of that kind.”

36. The call records and the record of the text message exchanges in trial exhibits U and T demonstrate that there was substantial contact between the four offenders in the few days leading up to when the offence was committed. Clearly enough from the verdict the jury found that there was an agreement between the offenders to commit an offence. For these four offenders to be liable on the basis of joint criminal enterprise there must have been an agreement.

37. In respect of the participation of the offender Triffitt in further written submissions, the Crown sets out in detail the calls between Triffitt and the other offenders on 13 May 2020. For example, Triffitt calls Stoll at 6.11 am, McGrath phones Triffitt at shortly after midday, Triffitt phones Stoll a number of times in the afternoon. Smith phones Triffitt at 5.25pm and Stoll phones Triffitt at 5.43pm and again at 6.16pm. Triffitt phones Smith at 6.55pm and Stoll phones Triffitt a couple of minutes later.

38. In all the circumstances, noting the number of calls between the four offenders, the content of those messages and the attendance of the offenders at the home of McGrath, I am persuaded to the criminal standard that the planning meets the test of substantial planning in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act. I accept that minds might differ on this aspect of the case. However, the level of planning is one of the many factors that goes to inform the objective seriousness of the offending and accordingly while the factor of statutory aggravation is made out, as the level of planning has been taken into account in the assessment of the seriousness of the matter the factor of statutory aggravation does not achieve any further weight. If it was given further weight there would be an issue with double counting.

39. I return now to the actual events in McGrath’s home where the victim Timothy Orr was injured.

40. After arriving at McGrath’s home, the victim went with her to her bedroom. It seems from the evidence at trial that McGrath spent considerable time in that bedroom. They played with the child Kaden, who fell asleep. The victim told McGrath that the child could stay at her place overnight and that he would collect the child the following day. On balance I am satisfied that both the victim and McGrath consumed ice while the victim was at her home. It was the victim’s estimate that he was at McGrath’s home for about three hours. The victim returned to his home and arrived there at about 9 PM.

41. Thereafter he received a number of text messages from McGrath. The effect of those messages was that McGrath was wanting the victim to return to her home. The victim gave evidence to the effect that he was reluctant he eventually did so. A taxi was called and he arrived at her place at about 1:40am on 14 May 2020.

42. Adrian Ball was the taxi driver who took the victim to McGrath’s home in the early hours of 14 May 2020. At the time he dropped the victim at McGrath’s home there were no other cars in the driveway, he did not see anyone around and the cul-de-sac was in darkness.

43. Exhibit W at the trial was closed circuit television security type footage taken from the taxi that took the victim to McGrath’s home. The victim is clearly shown in that footage. I am satisfied from viewing that footage a number of times that the victim did not have a machete with him in the taxi in the early hours of the morning of 14 May 2020. However, under cross-examination Adrian Ball, the taxi driver, gave evidence that on other occasions when he had had the victim as a passenger, he had noticed that the victim had with him a sports bag with what appeared to be a machete handle sticking out of that bag - see generally page 238 of the trial transcript.

44. There was also evidence at the trial, which was not controversial, to the effect that sometime before 14 May 2020 the victim had taken a red handled machete to McGrath’s home and that that machete was under McGrath’s bed in her bedroom. When the victim was at McGrath’s home on the second occasion he checked under the bed to see if the machete was there.

45. Once at McGrath’s home, the victim and McGrath again went to McGrath’s bedroom. The victim was sitting to one side of the bed on a chair near a window and the offender McGrath was on the other side of the bed. While they were in the room there was a knock on the door. McGrath answered the door and the offender Stoll came into the room. The victim maintained that the offender McGrath introduced Stoll by the name of Luke. Some short time after Stoll arrived, McGrath offered those present coffee and left the room apparently to make coffee. After McGrath left the room there was some discussion between the two men about the child Kaden.

46. The victim gave evidence (page 35 trial transcript) that he heard a bit of a noise; he looked up and saw a machete was coming straight at his head. The machete struck in the region of the left ear and cheek. The victim maintained (p 36) that Stoll was standing at the time he delivered the blow. There was something of a wrestle between the victim and Stoll during which the victim headbutted Stoll. Stoll said, “Ring the boys Sarah, ring the boys”. Given the verdicts of the jury and the call records “the boys” is clearly a reference to Triffitt and Smith.

47. Later at pp 58-59 the victim described how and where the three people in McGrath’s room were sitting just before he was attacked. Given the description of the manner in which Stoll was sitting on the bed it is highly unlikely that he would have had the large machete secreted in this track pants. I am satisfied that the machete with which the victim was struck was already at the house and was not taken there by anybody in the early hours of 14 May 2020. I cannot be satisfied that Stoll had that machete secreted in his track pants immediately prior to the attack on the victim.

48. The victim maintained that he picked up the machete from the bed and swung that machete at Stoll. That blow landed on Stoll’s stomach. However, a blood-stained knife was located in the bathroom sink. The knife itself was trial exhibit M and there is a photograph of that knife, trial exhibit J.

49. On balance noting the DNA evidence relating to that knife set out at p 7 of trial exhibit EE I am satisfied that the injuries sustained by Stoll were inflicted with that knife rather than a machete. The trace DNA from the perforated section of the knife contains a mixture of four individuals of which the offender Stoll and the victim were contributors. The victim was a contributor to the DNA found on the handle of the knife. I am fortified in that finding by the evidence of the victim to the effect that he placed the weapon with which he struck Stoll in the bathroom. This is despite the protestations of the victim at the trial that he had not seen that knife before. In any event, the victim went to the front door and saw a silver coloured four wheel drive vehicle. Smith was in the driver’s seat and Triffitt was standing near the vehicle.

50. In any event, while I do not resile from my finding that it was more probably the knife found in the bathroom sink used by the victim against Stoll, ultimately it is of little consequence whether the victim used that knife or a machete. Stoll sustained substantial injuries that are set out within trial exhibit 5. The discharge summary noted that Stoll presented with a deep 10 cm abdominal incisional wound, an incisional wound over the left knee, a superficial wound over the left chest and a haematoma over the left forehead. The abdominal wound was closed with Vicryl and Prolene, the knee wound with Prolene and the chest wound was not closed further. The injuries sustained by Stoll clearly amount to extra-curial punishment that must be taken into account in determining the appropriate sentence.

51. The victim returned to Kaden’s room where McGrath was. McGrath rang an ambulance. Before the ambulance arrived, the victim retrieved Stoll’s bum bag from the kitchen table and secreted it in a mound in the back yard.

52. Stoll left the house. He was collected by Smith and Triffitt who took him to the Junee Hospital. Donna McCarthy was the Registered Nurse on duty at the Junee Hospital. She received a call over the intercom. She saw on the monitor a man at the door of the hospital who complained that his companion had been struck with a machete. First aid was apparently administered and then ambulance officers Gupta and Muscio transported Stoll to Wagga Wagga Base Hospital. The offender Triffitt identified himself to RN McCarthy and he also gave Stoll’s name. Stoll gave a history of having smoked two points (a point being one tenth of a gram) and that he was attacked at his girlfriend’s place. He nominated Sandra Landrigen as his girlfriend. She is a close neighbour of the offender McGrath.

53. Meanwhile Ambulance Officers Lynch and Cachia attended 7 Clarence Street, Junee, McGrath’s address and waited for the police to arrive before actually going to the house. Ambulance officer Lynch observed that the laceration the victim had to his face was about 15 cm long which started from the earlobe and went onto the side of his cheek. She was unable to estimate how deep the cut was but she observed the wound dribbling blood. She also said that the victim gave an account of fighting with the other person for a bit and cutting that other person across the abdominal area.

54. Trial exhibit CC is an Expert’s Certificate prepared by Dr William McFaul who was a General Surgical Registrar on duty at the Wagga Wagga Base Hospital. Within Exhibit CC the following appears:

“On reviewing Mr Orr he had a laceration on the left side of his face from his cheek to his ear. I conducted an examination of the nerve supply to his face to check for damage, I noted that he had difficulty in smiling, lip movement on the left side, but this may have been due to pain. In the operating theatre on further examination the wound appeared to be superficial this was washed and then closed. The patient then self discharged later that day prior to further review…It is likely that Mr Orr will make a complete recovery although scaring will be present”.

55. The doctor goes into more detail of the injury within trial exhibit DD. The following appears:

“Mr Orr had a wound approximately 6 cm in length, on the left side of his face extending to the helix of the ear. This could indeed be from a sharp object consistent with the patient’s version of events, however trauma from other objects can still cause lacerations… I did not see Mr Orr post operatively but all wounds leave some form of scarring, so it is likely Mr Orr will have a large scar to the left side of his face.

Mr Orr required closure and washout in theatre, requiring a washout because all wounds considered contaminated should be washed, also given the location this wound would have been difficult to do under local anaesthetic… I cannot recall the amount of sutures used as we do not regularly record the amount of sutures used to close wounds as this depends on the situation, and is not necessarily indicative of length of the wound… Enough sutures were used to allow approximation of the tissues and control scarring”.

56. The victim was in the witness box for a number of days. The scarring on the left side of the victim’s face was very obvious. It is plain enough that that scarring will be permanent. Trial exhibit K is two photographs of the victim, neither of which clearly show the scar that was clearly visible when the victim was giving evidence. The scaring appears to be the only ongoing issue so far as the victim is concerned.

56. While the jury were satisfied beyond reasonable doubt that the injuries sustained by the victim amounted to grievous bodily harm for the purpose of proceeding to sentence the injuries are very much towards the lower end of the scale of what might be considered to be grievous bodily harm.

57. For the purposes of proceeding to sentence I am satisfied beyond reasonable doubt that at some days before 11 May 2020, but no later than 14 May 2020 the offenders Smith and McGrath came to an agreement that the victim would be assaulted. The offender Stoll was recruited to carry out the assault. The evidence does not enable me to find beyond reasonable doubt on precisely what date Stoll became party to the agreement but given the exchange of calls and messages it was at least a day or so before the actual attack on the victim. Likewise, the evidence does not enable me to find beyond reasonable doubt whether Stoll was recruited directly by Smith and McGrath or whether the offender Triffitt was the “go-between” or point of contact between Smith and McGrath on the one hand and the offender Stoll on the other. Be that as it may, nevertheless Triffitt was an active participant in the joint criminal enterprise.

58. There was a great deal of contact and communication between Smith and McGrath. There was also contact between those two offenders and the other two offenders, but that contact was limited. Consistent with the jury’s verdict Stoll and Triffitt were aware of the plan to have the victim assaulted and were party to that agreement.

59. I am satisfied beyond reasonable doubt the motive for the assault was animosity between McGrath and the victim over issues relating to the child Kaden. Smith was well aware of that animosity, and he too had some animosity towards the victim.

60. The victim attended the home of the offender McGrath on the evening and night of 13 May 2020. Originally it was not the intention of the victim that the child would stay overnight at McGrath’s home. The child fell asleep and the victim took a taxi to his home.

61. In the early hours of the morning of 14 May 2020 the offender McGrath invited the victim back to her home. Both the victim and McGrath consumed “ice” or methamphetamine.

62. There was a good deal of contact by way of text messages between the offenders but especially between McGrath and Smith. The victim accepted the invitation to return to McGrath’s home and travelled there by way of taxi.

63. The victim had been at McGrath’s home for some period of time before Stoll arrived. Stoll when he arrived at McGrath’s home knocked on the door and was allowed in. the victim, McGrath and Stoll went to McGrath’s room, which was used as a living room as well as a bedroom. The victim, McGrath and Stoll talked for some time in the room before McGrath left ostensibly to obtain refreshments. After McGrath left the room there was some discussion between the victim and Stoll about the child who was in another but nearby room.

64. During this period of time Smith sent McGrath a number of messages urging her not to be inside the house and to leave the door open.

65. Meanwhile the offender Stoll had been at the home of Sarah Landrigen, who was a near neighbour of McGrath. There was a message sent to Triffitt by Stoll to the effect that he, Stoll was in town. I cannot be satisfied that Stoll had a machete secreted on him at the time he arrived. Further, I am satisfied that the machete was already in the house at the time that Stoll arrived at McGrath’s house. To that extent the use of the machete itself (as opposed to the assault on the victim) was spontaneous.

66. However, noting the jury’s verdict given the directions given on the issues of joint criminal enterprise and extended joint criminal enterprise it was clearly within the contemplation of the parties to the agreement that a substantial weapon such as a machete would be used in the course of the assault on the victim. In this regard I note in particular the message from the offender McGrath to the effect that she did not want to get into the middle of a knife fight.

67. Some short time after McGrath left her bedroom the offender Stoll struck the victim across the left side of the face with the large black machete. The victim sustained injuries set out in trial exhibits CC and DD. Clearly enough the victim sustained scaring that will be permanent. The jury were clearly satisfied that the injuries sustained by the victim amounted to grievous bodily harm. The injuries are very much towards the lower end of what is considered to be grievous bodily harm.

68. Very soon after the victim was struck with the machete the victim using the knife found in the bathroom sink struck the offender Stoll. He sustained the injuries as set out within these reasons and as set out within trial exhibit 5. Those injuries clearly amount to extra curial punishment.

69. Very soon after this Stoll said to McGrath, “call the boys, call the boys”, which can only be a reference to the offenders Smith and Triffitt. The offenders Smith and Triffitt attended the house very soon thereafter and must have been in close proximity being ready, willing and able to assist if needed. Smith and Triffitt take Stoll to the Junee Hospital from where he is transported to Wagga Wagga Base Hospital.

70. Stoll brought with him a “bum bag” which was left on a kitchen table. That contained a number of personal items including drug paraphernalia. That bum bag and contents was buried in one of the mounds in the back yard of the premises.

71. The offender McGrath called the ambulance for the victim by triple-0 call. The ambulance attended but waited nearby until the police attended.

Assessment

73. Ordinarily offences such as the one presently under consideration are result offences, i.e. generally the more serious the injury the more objectively serious the matter will be. In McCullough v R [2009] NSWCCA 94 Howie J (McClellan CJ at CL, Simpson J agreeing) said at [37]:

“Malicious wounding is principally a result offence. Generally speaking the seriousness of the offence will significantly depend upon the seriousness of the wounding. That is not to say that the manner in which the wound was inflicted, the reason for the infliction of the wound and the circumstances surrounding the wounding are irrelevant. The same can be said for an offence involving the infliction of grievous bodily harm: the more serious the harm inflicted the more serious the offence: see R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at [27].”

74. In Mitchell and Gallagher Howie J said inter alia at [27]:

“The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence.”

75. I have set out in as much detail as I am able (given the contents of trial exhibits CC and DD) the extent of the injuries sustained by the victim.

76. The more difficult aspect of determining the objective seriousness is determining the role each offender played in the joint criminal enterprise. The offenders Smith and McGrath were responsible for the bulk of the planning. As much is obvious from the messages that have been set out when dealing with the facts. I am satisfied to the criminal standard that for some days prior to 14 May 2020 Smith and McGrath were responsible for an agreement that Orr would be assaulted. Given the verdict, clearly it was within the contemplation of that agreement that a weapon such as a machete would be used.

77. The use of a weapon is a factor of statutory aggravation noting s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999. See also Nowak v R [2008] NSWCCA 89 per Buddin J at [15]ff. However, while that factor of aggravation is made out as I have taken the use of the weapon into account in determining the seriousness of the matter the factor of statutory aggravation is not given further weight in the determination of the sentence, as to do so would be to engage in double counting.

78. Given the content of the messages and the evidence of the victim I am satisfied to the criminal standard that the motive for the attack on Stoll was animosity felt by McGrath towards the victim, particularly relating to the child Kaden. I note the submission of Mr Heazelwood for the offender Smith that the motive was more complex than what I have found. As I understood the submission made the motive also had something to do with Smith’s perception of the victim’s conduct towards McGrath and the child. It seems to me that that is all part of the animosity towards the victim.

79. In this regard I note in particular the message at 17.33 (5.33pm) on 12 May 2020 in which McGrath says, “…I hate your guts I’m coming to sort this now”. The responses from the victim bring no credit on him. I also note the message from Smith to McGrath at 20.27 (8.27pm) on 13 May 2020, “5 min or so (or so) to work it then you’ll come home to the bloke you hate”.

80. Trial exhibit T indicates that the first contact (in the time frame contained within the exhibit) between McGrath and Stoll was at 2.22 (2.22 am) on 12 May 2020. There is contact between McGrath and Triffitt at 5.36pm on 12 May 2020.

81. Noting the harm sustained by the victim but also noting the number of offenders, the planning including that the planning went on over a period of days, the use of the weapon, the execution of the agreement I am of the opinion the matter is below mid-range but neither to a slight or substantial extent.

82. While that is the assessment of the criminality the moral culpability of each of the offenders will be slightly different. McGrath and Smith had been planning the attack for some time and given the text messages I am satisfied beyond reasonable doubt recruited the other two offenders. Despite the fact that neither McGrath nor Smith carried out the actual assault I am satisfied beyond reasonable doubt that their moral culpability is high.

83. There are a number of complicating and competing features so far as the offender Stoll is concerned. He carried out the actual assault. While given the verdict it was always within contemplation that a weapon such as a machete would be used, I am satisfied that the use of the machete was opportunistic to an extent in that it was a weapon at hand. McGrath being the occupier of the premises was aware that weapons were there. I also note the issue relating to developmental delay, which impacts on the moral culpability of Stoll – see Tepania v R [2018] NSWCCA 247 at [112] and [119] per Johnson J. Given that issue and the other matters to which I have referred although he was responsible for the actual assault on the victim Stoll’s moral culpability is slightly less than that of McGrath and Smith.

84. Triffitt was part of the agreement. While I remain very strongly suspicious, I cannot be satisfied beyond reasonable doubt that Triffitt was the connection between McGrath and Smith and Stoll. Triffitt’s moral culpability is less than the other three offenders and accordingly his sentence will be less. That being said, the submission advanced by Mr Hart that Triffitt’s sentence would be two years or less and could be served by way of Intensive Correction Order was aspirational. This is particularly so given that he was subject to an ICO at the time of the offending noting s 66(2) of the Crimes (Sentencing Procedure) Act.

Criminal History of the offenders

85. The offender Stoll was born on 18 May 1996 and accordingly was 23 at the time of offending and is now 26. Given the decision of the Court of Criminal Appeal in Dungay v R [2020] NSWCCA 209 I ignore his juvenile record. However, he has acquired a record as an adult that does not entitle him to any particular leniency. He has been convicted of various domestic violence offences and on some occasions was sentenced to imprisonment. In 2019 he was convicted and sentenced to imprisonment for being armed with intent to commit an indictable offence and larceny. On 28 March 2022 he was convicted and sentenced to imprisonment in respect of two charges of driving in a manner dangerous in the course of a police pursuit. He has also been convicted of other traffic matters.

86. The offending in respect of which Stoll was sentenced in the Local Court on 28 March 2022 was committed whilst he was subject to bail in respect of the matter presently under consideration. He was sentenced to a total sentence of eight months with a non-parole period of four months to commence on 13 February 2022. Accordingly, consideration will need to be given to the issue of totality so far as this sentence is concerned.

87. The offender Smith was born on 26 September 1970 and accordingly he was 50 years of age at the time of offending and is 52 years of age at the time of sentence. He has a limited record. He was dealt with without conviction in 2016 in respect of a charge of driving a vehicle with an illicit drug present in blood or oral sample. In 2017 he was released on a good behaviour bond for custody of a knife. The offender Smith is entitled to some meaningful degree of leniency because of the limited record particularly given his age.

88. The offender McGrath born on 28 April 1986 and accordingly was 34 years of age at the time of offending and is 36 at the time of sentence. On 6 February 2020 she was convicted and released on Community Correction Orders in respect of charges of Possess Prohibited Weapon without Permit and Sell Prohibited Weapon Without Permit. The offender McGrath was subject to these orders as at the date of the offending presently under consideration and accordingly the factor of statutory aggravation provided for by s 21A(2)(j) of the Crimes (Sentencing Procedure) Act, 1999 is made out. The offender McGrath has also been convicted of traffic matters and drug possession charges which were dealt with by way of fine. The offender McGrath is entitled to some very limited degree of leniency because of her record.

89. The offender Triffitt was born on 4 November 1990 and accordingly he was 30 years of age at the time of the offending and is 32 at the time of sentence. He has a record that does not entitle him to any particular leniency. He has been convicted of a number of times for domestic violence offences including damage to property, common assault, stalk/intimidate, and contravene apprehended violence order. On call up he was sentenced to an Intensive Correction Order in 2017 for domestic violence offending. He has also been convicted of serious driving offences including driving whilst disqualified. In March 2020 he was sentenced to imprisonment for 11 months to be served by way of Intensive Correction Order in respect of a charge of drive in a manner dangerous in the course of a police pursuit. On 17 March 2021 he was convicted and sentenced to imprisonment for Driving In a Manner Dangerous in the Course of a Police Pursuit and other serious traffic matters including Drive While Disqualified.

90. Given that Triffitt was subject to an Intensive Correction Order was subject to that order as at the date of the offending presently under consideration the factor of statutory aggravation provided for by s 21A(2)(j) of the Crimes (Sentencing Procedure) Act, 1999 is made out in respect of him as well.

Subjective cases

91. Exhibit 1 on sentence is a psychological report in respect of the offender Stoll prepared by Ms Thea Gumbert. The report notes at paragraph 2.2 that the offender was diagnosed with a mild intellectual disability in adolescence and he has been linked with the NDIS for some years. In that regard I note exhibit 2 on sentence which is a report dated 14 October 2022 by Jocelyn Marks a coordinator the organisation “Lifestyle Solutions”.

92. Returning to Ms Gumbert’s report, it is noted at paragraph 2.3 that the offender’s parents are both of part aboriginal ancestry from the Wagga Wagga area. His mother was apparently too young to care for him when he was born and therefore he was raised by his maternal grandparents. While his grandparents apparently took care of his needs, they were both heavy drinkers and the offender was often exposed to arguments between them. The offender denied to the author of the report any exposure to violence or abuse at home.

93. The offender reported that from adolescence he would often run away from home and stay with friends. Whilst for reasons outlined for the purpose of proceeding to sentence I ignore the juvenile criminal history of the offender the juvenile record would tend to confirm this. The offender came into contact with the criminal justice system at an early age and has had a number of sentences of juvenile detention imposed. He was sexually abused on two occasions in his early teens by officers within the juvenile justice detention centre. This was not disclosed until quite recently.

94. When he was 17 the offender moved in to live with his mother at her invitation. Shortly later however she was killed in a motor vehicle accident and the offender turned to drugs to cope with his grief and distress. He lived for a short time with an uncle in Forster, but his uncle sent him back to the Wagga Wagga area because he was “hanging around the wrong people and getting into trouble”. Soon thereafter his uncle committed suicide which caused further trauma and which in turn contributed to his use of drugs as a coping mechanism.

95. The report goes on to indicate that at about 18 or 19 the offender spent a couple of months living with his father. However, whilst he was in custody his father sold all of his belongings and their relationship broke down. The offender lives with his grandparents when not in custody.

96. The offender Stoll reported to the author of the report learning difficulties from the outset at school. He found school “too hard”. The offender apparently has inadequate literacy skills daily life and needs assistance with filling in forms or writing letters. Whilst not being sure the offender thought he was about 16 or 17 when diagnosed with intellectual disability.

97. It would seem the offender began using cannabis when he was about 12 and this quickly became a daily habit. He began drinking alcohol on weekends when he was about 13. He has also used Xanax, MDMA and cocaine in his later teenage years. His mother died when he was 17 and he again used drugs to help cope with that situation.

98. Further, relating to drug use the offender Stoll found it difficult to recall his patterns of use in detail but told the author of the report he had been addicted to ice MDMA oxycodone and Xanax. He has been abstinent during his present period in custody and Buvidal is apparently assisting in that regard. In his late teenage years he completed a residential rehabilitation program which he found helpful but he relapsed.

99. Not surprisingly, the offender became depressed after the death of his mother and uncle and it would seem that he still has ongoing issues relating to their deaths. Again, not surprisingly, the offender also has issues associated with the sexual abuse at the juvenile justice institutions. Close relatives have died while he has been in custody on this occasion and was unable to attend the funerals. He indicated he would be interested in receiving formal counselling and treatment upon his eventual release. A little later in the report (p 7) it is noted that the offender intends to move away from Wagga Wagga upon his release and that he would like to move into the workforce.

100. At paragraph 2.7 towards the bottom of page 6 of the report, the following appears, “as requested in the letter of instruction, Mr Stoll’s account of the index offence was not explored. However, he did offer that, ‘I’m remorseful. Sorry what happened to the person. I didn’t mean to hit him. I can’t take it back but if I could I’d do it’”.

101. The offender is entitled to a finding on balance that he is remorseful. However, noting that he maintained that he did not mean to hit the victim and noting the jury’s verdict it seems that the offender is not taking complete responsibility for his actions. In these circumstances the expression of remorse does not achieve the same weight that it might in other circumstances.

91. At paragraph 4 of the report the author notes that Ms Marks in a letter of 29 June 2022 notes that she has been the offenders NDIS coordinator since November 2020 and that he receives support in relation to a primary diagnosis of mild intellectual disability and presents with symptoms of complex post traumatic stress disorder which are yet to be formally assessed.

92. References then made in the report to the Interim Positive Behaviour Support Plan dated 18 February 2022 prepared in respect of the offender Stoll. The results suggest a moderate degree of overall impairment. The offender is also noted to have difficulties with emotional regulation which can result in behavioural escalation including verbal and physical aggression, substance abuse, property damage or absconding without notifying support persons.

93. At page 9 of the report the author opines that, “Mr Stoll presents as a vulnerable individual who despite the support of his grandparents has been socially marginalised and apparently left to fend for himself to a large extent… It must be acknowledged that individuals with intellectual disability present with particular social vulnerability, including the potential for exploitation by others. Moreover, intellectual disabilities are associated with deficits in emotional and behavioural regulation and the higher order processes of planning, problem solving and consequential thinking.” A little later in the report the author notes that the experience of custody is especially onerous for individuals with intellectual disabilities given that they are particularly vulnerable to exploitation or abuse by other inmates. The author recommends that the offender would benefit from a full-time residential rehabilitation program providing multidisciplinary care and stepped down discharge process.

94. At page 2 of the report by Ms Marks she notes that the offender has, “a significant cognitive deficit that affects all domains of function…” This confirms what is in the psychologist report on the issue of intellectual impairment.

95. Given the experiences of the offender in his formative years and the sexual assaults in the institutions clearly the principles enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 are enlivened reducing the moral culpability of this offender to a meaningful extent. Further, given the issue of intellectual disability Stoll’s moral culpability is further reduced.

96. The principles enunciated by McClelland CJ at CL in DPP (Cth) v De la Rosa (2010) 79 NSWLR 1 at [177]-[178] are enlivened not only as I have already found reducing the moral culpability of the offender but also reducing the impact of general deterrence so far as the offender Stoll is concerned. In this regard I also note that part of the judgment of the plurality in Muldrock v The Queen [2011] HCA 39 at [54].

97. Stoll will need intensive and extensive supervision upon his eventual release. This supervision will need to be directed at effective reintegration into the community, and effective rehabilitation in respect of substance abuse issues. That rehabilitation program may well involve quasi-custody in the form of a residential program. There is also the issue as Ms Gumbert points out in her report issue of custody been more onerous for persons with intellectual disabilities. All of these issues combined lead to a reasonably generous finding a special circumstances so far as the offender Stoll is concerned.

98. Given the criminal history of the offender Stoll and noting that there was further offending while on bail for this matter, I simply cannot conclude on balance that the offender is unlikely to reoffend. Essentially for the same reasons I am unable to make a finding on balance that the offender Stoll has good prospects of rehabilitation. However, on the issue of rehabilitation much will depend upon the manner in which the offender engages upon his eventual release with the relevant agencies and authorities. In particular if he successfully completes a course of residential rehabilitation his prospects of long-term rehabilitation are much better it seems to me.

99. Mr Bouveng, counsel for the offender Stoll submits that the sentence imposed date from 9 September 2020. The offender was in custody from 14 June 2020 until granted bail on 18 November 2021. He was arrested on fresh charges and bail was once again refused from 13 February 2022.

100. Parole was revoked and a sentence of four months was imposed for fresh offences. Given the principle of totality I am of the opinion that the sentence so far as Stoll is concerned should commence at a slightly later date.

101. Turning now to the offender Smith, no psychological report was tendered. Oral evidence was given by his father Kevin Smith and his mother Kathryn Smith, to which I will turn shortly. A report dated 4 October 2022 from Mr David Post, a counsellor of Introspective Counselling was tendered and became Exhibit 4. That sets out the offender Smith commenced counselling sessions in 2018 as a means of dealing with some of his personal behaviours such as long-term drug use. The report sets out that the offender Smith had shown a willingness to work towards learning new strategies and taking appropriate opportunities. The offender misreported at a session in April 2020 that he had ceased all personal drug use. Mr Post regularly visited the offender Smith while he (Smith) was on strict bail conditions to check on his mental health.

102. Returning to the oral evidence, the offender’s father gave evidence that the offender was the youngest of four boys. He attended local schools and completed year 10. He worked at the local abattoir until sustaining an injury with a knife to his left arm. The offender continues to have issues with limited use in his left arm because of this injury. The injury led to the receipt of compensation by the offender.

103. The offender then using the compensation payment began his own business at a motor vehicle repair shop known as Junee Panel and Paint. The business was operated by the offender for about 30 years. During that time the offender was involved in the community including sponsorship.

104. About 10 years ago the offender’s father noticed a significant change in the offender’s personality. It would seem that this was because of drug use he spoke to his son several times without apparent success. He was aware that in August 2016 police executed a search warrant at the business premises of his son, with the police being there most the day and the search receiving a lot of local publicity. The offender’s father was also aware that the offender has split with his partner Sammy has two children. There are some issues relating to the offender having access or spending time with the children.

105. Mr Kevin Smith saw his son at Mannus Correctional Centre when he was first arrested. Would seem the offender found custody a most unpleasant experience, noting that was the first time he had been in custody.

106. My note and memory is to the effect that Mr Kevin Smith indicated that his son, the offender Smith, was very remorseful for what he had put him and his wife through. He was aware that his son was on strict bail conditions and he was aware that his son had to travel to Wagga to report daily. Whilst his son was on bail he noticed a change in his son’s personality there were no longer any problems relating to drug use.

107. Bail was refused in respect of the offender Smith the day of the verdict of guilty. Mr Kevin Smith gave evidence that it has been difficult to visit his son.

108. An issue that is relevant to all offenders is the COVID-19 pandemic. Lockdowns have been longer and more frequent, there has been the severe restriction and even cessation of face-to-face visits, inmates have to isolate upon being moved from one institution to another, and there are limits on courses that inmates are able to undertake whilst in custody. All of this goes to make custody more onerous. I have regard to and take into account decisions such as Valentine v R [2020] NSWCCA 116, Mbele v R [2021] NSWCCA 182 and Toller v R [2021] NSWCCA 204.

109. Ms Kathryn Smith, the offender’s mother also gave evidence. She assisted her son with the book-keeping when he commenced his business. She became aware in early 2016 that her son was using drugs. She attempted to talk to him in order to get him to give up drugs. She too was aware of the raid on her son’s business premises in August 2016. The evidence continued that her son reacted badly to the search of his premises and in particular react badly about the local publicity that the raid generated. She said that her son was “very agitated” towards authority particularly the police. The police continued the surveillance of the offender’s Smith’s business premises which again caused further anger towards the police.

110. Ms Smith gave evidence of her son saying he was still using drugs at that time. She also gave an account of her son taking up with the offender McGrath and she was aware of domestic violence. She too noticed a difference when the offender was released on bail. The offender said to her upon his release on bail that he will not touch drugs again and he will not go near his old friends. Ms Smith also gave evidence that her son was very distressed for her and her husband while he (the offender) was in custody.

111. After he was released on bail in early April 2021 the offender obtained employment with Douglas Aerospace near the airport at Wagga Wagga. Exhibit 3 on sentence is a letter from Smith’s employer speaking well of the offender’s work ethic and ability. Mr Clarke would be prepared to employ the offender Smith in the future.

112. Exhibit 5 on sentence (for the offender Smith) is a series of results of drug tests indicating negative results.

113. Reasonable minds might differ in this matter on the issues as to findings relating to the prospects of rehabilitation and the unlikelihood of reoffending so far as the offender Smith is concerned. There are some very positive signs not the least of which is the stated desire to remain abstinent from illicit substances and not to return to his old associates. There is also the fact that he obtained employment for the period of time he was on bail. He also complied with what were undoubtedly very strict bail conditions. With some minor hesitation, which relates essentially to drug use and his associates, taken with the degree of planning involved in the offending for which he appears for sentence, I am prepared to find on balance that the offender Smith is unlikely to reoffend and that he has good prospects of rehabilitation.

114. The offender Smith also submits that he is entitled to some consideration by way of backdating of the sentence to be imposed because of what is submitted are onerous bail conditions. Exhibit 6 is a copy of the bail conditions to which the offender Smith was subject. Initially they provided essentially for what might be referred to as house arrest type bail apart from when he was attending employment or prearranged medical or legal appointments. There was also a condition that had the effect that he could not enter the Township of Junee. A surety with deposit of $10,000 was also a condition of the bail.

115. I accept that these were onerous bail conditions and they would have severely limited the freedom of movement of the offender. Given the decisions of the decisions of R v Anderson [2012] NSWCCA 175 and Hoskins v R [2016] NSWCCA 157 I am of the opinion that it would be appropriate to allow backdating of the sentence to be imposed to take into account the strict bail conditions to which the offender was subject. Rather than allow a percentage as has been done in some cases I am of the opinion that it is appropriate to back date the sentence for Smith by 4 months to take into account those bail conditions.

116. On this issue I note that the offence with which the offender was charged was a particularly serious one, carrying as it does a maximum penalty of 25 years imprisonment. Given the messages which are extracted earlier in these reasons the case against the offender Smith was always relatively strong.

117. I understood Mr Heazelwood to make submissions to the effect that the offender Smith also suffered from a psychological condition. Further, I understood the submission to be that I could take that into account as part of the overall subjective mix. In particular Mr Heazelwood relied on the letter from Mr Post to ground the submission that his client was suffering from a psychological condition. Exhibit 4, the letter from Mr Post sets out that the offender Smith consulted Mr Post for professional counselling for issues relating to long term drug use. I am not persuaded that anything in Mr Post’s letter rises to a diagnosis of any psychological condition.

118. In the absence of any expert opinion, I am not prepared to make a finding on any possible psychological condition from which the offender Smith may have been suffering at the time of the offending or since.

119. I understood Mr Heazelwood to submit towards the end of his oral submissions that I should find that the offender Smith is remorseful given the evidence of his parents. With respect I do not see anything in the evidence from either of the offender’s parents that would justify a finding on balance that the offender is remorseful. A statement to the effect that he will not touch drugs or go back to his old friends is hardly an expression of remorse for the criminality in which he engaged and of which he was convicted by the jury.

120. I have no note or memory of any submission being made on behalf of Smith so far as a finding of special circumstances is concerned. However, noting his age and that this is his first time in custody, the COVID-19 pandemic and the need for supervision on release to ensure his proper and appropriate reintegration into the community I will make some allowance of special circumstances so far as Smith is concerned.

121. I now turn to the subjective case for the offender McGrath. No oral evidence was called from or on behalf of the offender McGrath but Mr Roff, counsel for the offender read a comprehensive affidavit sworn by Michael Bowe, his instructing solicitor. That affidavit contains the subjective case, and what follows is drawn from that affidavit. McGrath was 34 years of age at the time of the offending and is 36 at the time of sentence.

122. The first four years of her life were spent travelling in a caravan with her parents. Both parents drank alcohol to excess and both abused cannabis. She witnessed her father being violent towards her mother on many occasions. When she was 11 her father was imprisoned for domestic violence offending. She attended a number of schools. Her mother was violent towards her, especially when her mother had been drinking. The offender’s family moved to Wagga Wagga when she was part way through Year 8 and she was expelled from school in Year 10. Accordingly, she has a limited formal education.

123. The offender met “Greg” while in Gundagai and had three children with him, those children being born in 2004, 2007 and 2014. Both the offender and “Greg” were heavy drinkers. He was physically violent to the offender on numerous occasions. Apart from alcohol both also “dabbled” (to use the word in the affidavit) with cannabis and methamphetamine and Greg also sold methamphetamine. They separated in 2016.

124. The offender’s children were removed, presumably by DOCS. Her own drug use escalated and she found herself homeless until her father was able to assist. Her father died in 2019

125. McGrath met the victim Timothy Orr in 2018 and it seems that when they initially met the victim was selling drugs. The offender McGrath and the victim Orr had a dysfunctional relationship characterised by abuse of drugs and physical violence. The victim admitted this in cross-examination at the trial. Some of the violence occurred in front of the child Kaden. The child Kaden was placed in the care of the victim after the offence.

126. The COVID-19 pandemic has also affected the offender, as it has anyone in custody.

127. McGrath expresses an intention to reunite with her children. She has seen a psychologist and has received some counselling for past trauma. Clearly, she will need further counselling.

128. Clearly, so far as the offender McGrath is concerned the factors enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 are enlivened to a reasonably significant extent, reducing the moral culpability of the offender. Mr Roff in his written submissions puts that McGrath’s moral culpability is reduced “somewhat”. I agree with that assessment. Further, the contents of the affidavit also go towards a finding of special circumstances. The offender will need an extended period of supervision to ensure that she is properly reintegrated into the community but also the supervision will be necessary to ensure that McGrath properly engage with the appropriate counselling for the issues set out in the affidavit. This is also her first time in custody.

129. So far as the offender McGrath is concerned there is nothing on which I could make a finding on balance that she is remorseful. She has a limited record but was subject to Community Corrections Orders at the time of this offending. She has some unresolved issues that require counselling. However, she has engaged in some counselling. Counsel put and I accept that the offender McGrath has obtained work at Dillwynia Correctional Centre in the garden. She has the motivation of wanting to be reunited with her children.

130. Reasonable minds may differ on findings as to the likelihood of reoffending and the prospects of rehabilitation. There are some very positive signs. However, at this point in time I am not prepared to make those positive findings (i.e. be unlikely to reoffend and having good prospects of rehabilitation) at this point. Much will depend on the manner in which the offender engages with the appropriate agencies and authorities upon her eventual release.

131. In his written submissions Mr Roff put that the appropriate disposition would be an Intensive Correction Order. That submission was abandoned at the sentence hearing. Although it was abandoned, for the sake of completeness I am of the very firm opinion that the total sentence would exclude the possibility of it being served by way of Intensive Correction Order. Further, I am also firmly of the opinion that the offending is simply too serious for that leniency to be extended to the offender. In arriving at that conclusion I rely on the authorities of Quinn v DPP (Cth) [2021] NSWCA 294 and Thurlow v R [2022] NSWCCA 20.

132. The issues of commencement date of the sentence and parity will be dealt with later in these reasons.

133. I now turn to the subjective case for the offender Triffit. No oral evidence was called by or on behalf of the offender, however, Mr Hart, counsel for the offender tendered exhibit 10, a report by Mr Peter Watt, Psychologist. I will initially go to that report.

134. The offender Triffitt was born in Albury but grew up on a farm at Gumly Gumly, a locality slightly to the east of the city of Wagga Wagga. As a young infant he was diagnosed with Echovirus Type II which was apparently acquired from sewerage leaking into a sandpit in which he was playing. The disease had polio type symptoms causing paralysis on the left side of his body and muscle wastage. He underwent three surgical procedures, one at 8, another at 10 and another at 14 years. At p 6 of the report Mr Watt sets out that the disease is debilitating.

135. The offender Triffitt had a limited formal education having completed Year 9 at TAFE. He commenced an apprenticeship as a welder. His TAFE teacher invited him to travel to Western Australia where he worked as a fly in/fly out position at the mines. He qualified as a welder at the age of 23. He went on to work in Queensland as a welder on a gas pipeline.

136. Triffit commenced a relationship that lasted about 6 years. Two children were born in that relationship, and they are now aged 9 and 7 years. The relationship ended apparently because of the offender’s extended absences for work. He commenced another relationship and had two further children. He and his second partner regularly used methamphetamine. After separating from that relationship he commenced another with a young lady who worked at a bank. There was one child of that relationship. He was unfaithful while using methamphetamine and another child was born. He formed another relationship in 2021 and that relationship is apparently still on foot.

91. Mr Watt’s report sets out that the offender reported being physically abused by a female teacher at primary school. After the break up of his first relationship he spent a week at the psychiatric ward of the Wagga Wagga Base Hospital.

92. The offender Triffit commenced using alcohol at 14 years of age and that developed into binge drinking. It seems that alcohol is no longer an issue. He was introduced to “ice” i.e. methamphetamine at the age of 26 and the habit developed to him smoking that substance on a daily basis until May 2022. He has experimented with cocaine.

93. Mr Watt opines that the offender Triffit suffers from a Major Depressive Disorder, Stimulant Use Disorder and Unspecified Stimulant Related Disorder, methamphetamine. He also opines that those conditions are “considered pertinent and worthy of clinical attention.

94. However, there is nothing in the report to suggest that the offender Triffit was suffering from those conditions at the time of the offending or that there is any causal connection between any of those conditions and the offending.

95. Further, Mr Watt goes on to opine that the offender’s main problem in recent years has been methamphetamine use. He strongly recommends that the offender seek out drug and alcohol treatment and rehabilitation programme once released to parole. The offender would also benefit from treatment for depression through medication.

96. Clearly the physical and mental conditions suffered by the offender Triffit are all part of the overall subjective case.

97. There is a case for a finding of special circumstances so far as Triffit is concerned. He too will need some assistance in properly reintegrating into the community but moreover he will need an extended period of supervision to ensure that he receives the appropriate counselling and treatment for substance abuse issues.

98. At the sentence hearing the offender Triffit was supported by a significant number of friends and family. Clearly, he does enjoy family support and that support will continue on his release from custody. His present partner was unable to be present at the sentence hearing but it was indicated that she wishes to continue with the relationship.

99. There is nothing on which I could make a finding that the offender Triffit is remorseful. Given his record, the breach of conditional liberty and the substance abuse issue I am not prepared to make a finding that he is unlikely to reoffend. The offender has had a substance abuse issue for some time. I am not prepared to make a finding at this point that there are good prospects of rehabilitation. Despite the family support that he enjoys much will depend on the manner and extent to which the offender engages with the appropriate agencies upon his release from custody.

100. At the risk of repetition but for the sake of completeness the COVID-19 pandemic has affected the offender Triffit as it has with all persons in custody in the manner in which I have set out earlier in these reasons.

101. Mr Hart submitted that the offender Triffit has also been subject to onerous bail conditions and relying on the authority of R v Quinlan [2021] NSWCCA 284 submitted that the offender Triffit was entitled to some consideration by way of backdating because of what were said to be onerous bail conditions.

102. Upon investigation (my Associate consulting JusticeLink), counsel not having to hand the bail conditions in respect of which he was making the submission, it was found that what were said to be onerous bail conditions involved reporting conditions and a curfew. I am of the opinion that the bail conditions under consideration in Quinlan were more restrictive than those to which the offender Triffit was subject.

103. Price J in Quinlan said at [87]-[89]:

“[87] Section 20A of the Bail Act 2013 (NSW) provides the general rules for the imposition of bail conditions to address identified bail concerns. Bail conditions imposed in accordance with s 20A will not ordinarily be considered to be “quasi-custody” so as to justify a lesser sentence or the backdating of a sentence as the condition(s) imposed will ordinarily be reasonably necessary to address a bail concern (s 20A(2)(a)), and reasonable and proportionate to the offence (s 20A(2)(b)), and appropriate to the bail concern identified (s 20A(2)(c)), and no more onerous than necessary to address the bail concern identified (s 20A(2)(d)), and reasonably practicable for the accused person to comply with the condition (s 20A(2)(e)). Most bail conditions restrict a person’s liberty in some way.

[88]   Nevertheless, there will be occasions when bail conditions are so harsh or restrictive that they may require a conclusion that at least some part of the period on bail should be treated as the notional equivalent of custody, conveniently referred to as “quasi-custody”. The onus of establishing whether an offender’s bail conditions amount to quasi-custody falls on the offender on the balance of probabilities. As Garling J explained (with the concurrence of Basten JA and myself) in La v R: [42]

‘[43] A sentencing court is entitled to take into account any conditions of bail granted to an offender awaiting sentence where those conditions may be particularly harsh or restrictive. Such terms are often referred to as “quasi-custody”. Prior to a court taking into account conditions of quasi-custody as a basis for reducing a sentence, or commencing a sentence from an earlier date than it otherwise would have, there has to be an evidentiary foundation to establish the nature, kind and effect of any restrictions: see Bonett v R [2013] NSWCCA 234 at [50] where Adamson J said:

“Whether restrictions outside of gaol amount to quasi-custody is a question of fact: see for example R v Cartwright (1989) 17 NSWLR 243 at 258 per Hunt and Badgery-Parker JJ and R v Serratore [2000] NSWSC 696 per Kirby J at [31]-[35]. The weight to be given to any such quasi-custody in reducing the sentence imposed is a matter for the discretion of the sentencing Judge. Although quasi-custody may be a relevant consideration it is not a mandatory relevant consideration. However, in circumstances where there is an evidentiary foundation for its being taken into account, the sentencing Judge may be obliged, in some circumstances, to have regard to it even when not specifically asked to.”” (emphasis in original)

[89]   An assessment of whether a person’s bail conditions amount to quasi-custody and whether and to what extent an allowance is made by backdating the sentence is a discretionary decision to be made by the sentencing judge in light of the particular facts and circumstances of the case. Such a decision is only reviewable by this Court in accordance with the principles of House v The King.’”

161. I also note the earlier decisions of R v Anderson [2012] NSWCCA 175 and Hoskins v R [2016] NSWCCA 157. In R v Anderson Davies J (Allsop P as his Honour then was agreeing with additional comments, Campbell J agreeing and with the additional comments of Allsop P) said at [41]-[45]:

“[41]   The Crown accepted that in appropriate circumstances an allowance can be made for periods on bail. Most of the cases which have dealt with this have involved rehabilitation "custody" by virtue of the offender being within a residential rehabilitation program: R v McHugh (1985) 1 NSWLR 588; R v Douglas (unreported, NSWCCA, 4 March 1997); R v Eastaway (unreported, NSWCCA, 19 May 1992); Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155; BJT v R [2011] NSWCCA 12; R v Delaney [2003] NSWCCA 342, (2003) 59 NSWLR 1.

[42] In Hughes Grove J (with whom McClellan CJ at CL and Simpson J agreed) said:

‘[38]It is appropriate for an offender to receive recognition and credit for time spent in rehabilitation which has been productive: R v Eastaway (unreported, NSWCCA 19 May 1992). An allowance of approximately 50% of the credit that would be given in respect of pre-sentence custody has been endorsed: R v Douglas (unreported, NSWCCA 4 March 1997). Pre-sentence custody and the similar concept of rehabilitation "custody" is preferably catered for by backdating of the commencement date of sentence: R v McHugh (1985) 1 NSWLR 588.’

[43] Once it is accepted that it may be appropriate in some circumstances to give a discount of 50% in respect of bail conditions the determination of what an appropriate discount might be in a given case is a discretionary judgment for the Sentencing judge. Accordingly, an error of the type referred to in House v The King (1936) 55 CLR 499 must be shown.

[44] Although the Respondent was not in what has been called rehabilitation custody the practical effects of her bail conditions were onerous. She was required to reside in a small town, was unable to leave it (except to attend court or legal conferences) and was subject to a curfew. Those conditions meant that she was unable to find employment (because of the limited job opportunities in such a small town) and was unable to further her rehabilitation because no facilities were available.

[45] Her Honour's approach to the Respondent's bail conditions was a lenient one. She did not, however, make any error of fact or law, she did not take account of irrelevant matters and she considered relevant matters. The result, whilst generous, was not plainly unjust nor unreasonable in the sense that it reduced the sentence to a level insufficient to reflect the objective seriousness of the offending: Delaney at [35]; Truss v R [2008] NSWCCA 325at [21].”

162. At the sentence hearing I inquired of counsel for Triffit as to where was the evidence of the impact on the offender of the bail conditions. He replied with words to the effect of, “There isn’t any”.

163. Since the sentence hearing the court has received an affidavit from Mr Keane, solicitor instructing Mr Hart for the offender Triffitt. With respect, that material should have been available to the court and should have been served on the Crown before the sentence hearing, particularly noting that counsel clearly intended to make a submission on the onerous bail conditions.

164. The offender Triffitt maintains that he has suffered hardship as a result of the bail conditions. Paragraph 8 of Mr Keane’s affidavit sets out that he was unable to follow employment as a fly in/fly out worker in Western Australia. I accept that this is a hardship as a result of the bail conditions. The other hardship relates to conflict with his domestic partners during the period he was on bail and an inability to socialise with his mates. It was more difficult to spend time with some of his children.

165. However, the offence with which Triffit was charged was one that carries a maximum penalty of 25 years with a standard non-parole period of 7 years. Noting that the offending occurred in the early hours of the morning the curfew was not inappropriate. The bail conditions were not particularly onerous but I accept that particularly so far as employment is concerned there were some hardships. I observe that the other bail conditions to which Triffit was subject were not unreasonable. But for the decision in Quinlan, I would not have been minded to make any allowance by way of backdating of the commencement date of the sentence. However, in light of that decision I will allow a back date of 2 months to recognise the issue relating to the conditions of bail.

166. Mr Hart’s primary submission was the sentence imposed on the offender Triffit would be two years or less and should be served by way of Intensive Correction Order. What follows is a repeat of the observations I made in R v Elphick [2021] NSWDC 1 at [89] ff:

“[89]   There has been a considerable amount of litigation on intensive correction orders, the latest decision (at least at the time of the preparation of these reasons) being Wany v DPP [2020] NSWCA 318. The controversy (for want of a better word) commenced with the decision of R v Pullen [2018] NSWCCA 264. Thereafter there was R v Fangaloka [2019] NSWCCA 173, Casella v R [2019] NSWCCA 201, Karout v R [2019] NSWCCA 253and Cross v R [2019] NSWCCA 280. Fangaloka and Karout were subject to applications for Special Leave to the High Court – see [2020] HCASL 12 and [2020] HCASL 56 respectively – with both applications separately being dealt with “on the papers” with Gordon and Edelman JJ concluding in Fangaloka that “…The Application does not give rise to any reason to doubt the correctness of the decision of the Court of Criminal Appeal…”. In Karout Gordon and Edelman JJ concluded that “…The proposed grounds…have insufficient prospects of success to warrant a grant of special leave”.

[90]   The doctrine of precedent dictates that judges at first instance should follow Fangaloka and Karout.

[91]   Basten JA (Johnson & Price JJ agreeing) in Fangaloka said at [65]-[66]:

“The better view is that the legislature has, appropriately, acted upon the available evidence by requiring the court to have regard to a specific consideration, namely the likelihood of a particular form of order addressing the offender’s risk of reoffending. That obligation, imposed by s 66(2), is not stated to be in derogation of the more general purposes of sentencing outlined in s 3A, nor in derogation of other relevant matters: s 66(3). Nor does the legislation limit the consideration of community safety to a means more likely to address the risk of reoffending; it merely identifies that as a mandatory element for consideration.

[66] There is no doubt that community safety can operate in different ways in different circumstances. It is conventionally accepted that a purpose of punishment, including by way of imprisonment, is to deter the offender from further offending; it is also accepted that removal of an offender from the community for a period may have a protective function. The purpose of s 66, on this approach, is merely to ensure that the court does not assume that fulltime detention is more likely to address a risk of reoffending than a community-based program of supervised activity. Consistently with that view, s 66 does not seek to address potentially conflicting demands of community safety in the short term, as opposed to the longer term, and the risk that leniency will be abused. In short, there is nothing in s 66 which favours an ICO over imprisonment by way of fulltime custody. Further, while s 66 expressly referred to s 3A, it did so, not by identifying it as a set of “subordinate” considerations, but as mandatory considerations. It would be wrong for a court to treat every consideration other than the means of addressing the risk of reoffending as a subordinate consideration.”

[92]   Hoeben CJ at CL agreed with the judgment of Fullerton J in Karout with Brereton JA dissenting. Fullerton J said at [90]:

“Adopting and applying that analysis (with which I agree), I consider that were the Legislature to have intended to impose on sentencing courts an obligation to give paramount consideration to community supervised programs as a means of ensuring community safety as one of the purposes of sentencing in s 3A(c) of the Sentencing Act, or to impose on a sentencing court a statutory obligation to give reasons for concluding that the other purposes of sentencing in s 3A, alone or in combination, dictate that even where the offender’s risk of reoffending is such that community protection can be sufficiently addressed by an ICO, a sentence of full-time custody is the appropriate sentencing outcome, I would have expected the Legislature would have made that plain when the 2018 amending Act was passed.”

[93]   Her Honour went on to say at [94]:

“The fact that his Honour made positive findings as to the applicant’s good prospects of rehabilitation and that he was unlikely to reoffend, findings which might, in addition to a finding of special circumstances, have supported the exercise of the power in s 66 for the making of an ICO, did not dictate that an ICO was the appropriate sentencing outcome. Consistent with the obligation in s 66(3) that his Honour also take into consideration the purposes of sentencing in s 3A of the Sentencing Act and any relevant common law sentencing principles, it is clear that in declining to make an ICO the objective seriousness of the applicant’s offending and the principles of general deterrence (being amongst the mandatory considerations his Honour was obliged to consider under s 66(3) in deciding whether the power to make the ICO should be exercised) overwhelmed other considerations that were in play.”

167. Since that decision was handed down there have been the decisions referred to earlier in these reasons of Quinn v Commonwealth Director of Public Prosecutions and R v Thurlow. The effect of Quinn is that Wany v DPP has been disapproved. Bellew J (Johnson & Davies JJ agreeing) in Thurlow said at [32]-[33]:

“The sentencing judge concluded, having regard to (inter alia) the purposes of sentencing in s 3A of the Sentencing Act, the objective seriousness of the offending, and what was described as a “serious assault on the justice system”, that the applicant should serve a period of full-time custody, and that no other sentence (including an ICO) was appropriate. So much is clear from the penultimate paragraph of her Honour’s reasons set out at [21] above.

[33]   Once her Honour reached that conclusion, any consideration of s 66(1) and (2) of the Sentencing Act became entirely unnecessary. So much is clear from the judgment of Simpson AJA (with whom Johnson J agreed) in Quinn v Commonwealth Director of Public Prosecutions where her Honour said the following:

‘[186] The flaw in the applicant’s argument is that it assumes, wrongly, that the criteria stated in sub ss 66(1) and (2) override, or at least precede, all other considerations. The truth is that, logically, the sub ss 66(1) and (2) criteria come into play at the end, not the beginning, of the process. If, in the opinion of the sentencing judge, any of the considerations in s 68, s 4B, or s 3A foreclose making an intensive correction order, sub ss 66(1) and (2) become otiose, and it is unnecessary for the sentencing judge to direct attention to them.

[187] In this case, it was the seriousness of the offending that brought the consideration of making an intensive correction order to an end. Once the primary judge concluded that the offending was too serious to be dealt with by way of a sentence served otherwise than by way of full time imprisonment, considerations of community safety (in the context of s 66) did not arise. It may be observed that s 66(1) requires community safety to be taken into account as the paramount consideration when a court is “deciding whether to make an intensive correction order”. Where a court has concluded, having regard to the relevant material, that the seriousness of the conduct precludes such an order, there is no further decision to be made.’”

168. The High Court has announced that the appeal in the matter of Stanley was upheld. However, at the time of that these reasons were delivered the High Court had not delivered reasons for that decision. Accordingly, the Court can only proceed on the law to date.

169. Returning to Mr Hart’s submission even if the sentence was two years or less, which in my view it cannot, sections 66(1), 66(2) and 66(3) of the Sentencing Act need to be considered. Triffit was subject to an ICO at the time of this offending. I am firmly of the opinion that full time custody will more appropriately deal with the issue of the risk of re-offending. Noting the fact he was subject to an ICO at the time of the offending I am of the view there is a very real issue of public safety. Then, there are general sentencing principles including general deterrence. Further, in the matter presently under consideration I am firmly of the opinion that the offending is simply too serious to warrant the extraordinary leniency of Triffit serving his sentence by way of Intensive Correction Order.

170. The offender Triffitt is also able to rely on assistance pursuant to s 23 of the Crimes (Sentencing Procedure) Act. In this regard Triffitt relies upon a confidential affidavit that became exhibit 11 on sentence. That material remains in a sealed envelope.

168. Section 23 of the Crimes (Sentencing Procedure) Act relevantly provides:

23   Power to reduce penalties for assistance provided to law enforcement authorities 

(1)    A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

(2)    In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters—

(a)   (Repealed)

(b)  the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,

(c)  the truthfulness, completeness and reliability of any information or evidence provided by the offender,

(d)  the nature and extent of the offender’s assistance or promised assistance,

(e)  the timeliness of the assistance or undertaking to assist,

(f)  any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,

(g)  whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,

(h)  any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, resulting from the assistance or undertaking to assist,

(i)  whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,

(j)     (Repealed)

(3)    A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

(4)    A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must—

(a)  indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and

(b)  state the penalty that it would otherwise have imposed, and

(c)  where the lesser penalty is being imposed for both reasons—state the amount by which the penalty has been reduced for each reason.

(5)    Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(6)    The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.

172. The assistance relates to the recovery of stolen firearms following the arrest of Triffitt in respect of Driving While Disqualified and him being refused bail. The firearms were recovered and two of them were prohibited firearms. No arrests were made nor do the police expect any to be made. The offender refused to give any further assistance given that the police would not consent to the lifting of the curfew conditions of his bail. The police officer providing the material sets out that there was no forensic evidence, which I presume to be a reference to fingerprints or DNA, found on the firearms. Police acknowledge the seizure of the firearms is of benefit to the community.

173. The significance of the assistance is the recovery of four firearms, two of which are prohibited weapons. That also deals with the nature and extent of the assistance. Given that the firearms were recovered clearly Triffitt was being truthful about the firearms. The timing of the assistance coincided with an application by Triffitt to have his bail conditions relaxed. There is no suggestion that Triffitt will suffer harsher custodial conditions and even if there was such a suggestion there is no evidence of that. There is no suggestion of any injury to the offender or his family or any threat of such injury. The assistance relates to unrelated offending.

174. Mr Hart submits on behalf of the Triffitt that the assistance is worth a numerical discount of 10%. I have a note and memory to the effect (which I accept may be inaccurate) that the Crown submitted at the sentence hearing that the assistance was worth no more than 10%. In his supplementary written submissions Mr Hart puts that the Crown did not necessarily agree that 10% should be allowed but the Crown did not submit any lesser discount. I note the authorities on the subject of assistance including R v Sukkar (2006) 172 A Crim R 151, FS v R [2008] NSWCCA 301 and R v AD [2008] NSWCCA 289; (2008) 191 A Crim R 409. In the circumstances at the risk of erring on the side of generosity I will allow a discount of 10% to Triffitt for assistance. I accept however that 10% is very much the upper end of the range for the assistance that was given.

General Remarks

175. In passing sentence I will need to properly consider and give effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

176. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. In the circumstances of this case noting the offending, the maximum penalty and the standard non-parole period clearly there must be a sentence of imprisonment imposed on all offenders.

177. Despite the Crown case being one based on extended joint criminal enterprise there are issues of parity to be considered. Stoll was responsible for the assault but he has issues relating to intellectual functioning that affect the assessment of the seriousness and moral culpability so far as he is concerned.

178. Smith and McGrath were clearly responsible for the planning of the assault on the victim. McGrath has in her favour what have become known in shorthand form as the “Bugmy factors” reducing her moral culpability “somewhat”. Smith has no such factors operating so far as he is concerned. Smith and McGrath are in my view more culpable that Stoll because of the nature of the planning. Despite the Bugmy factors so far as the offender McGrath is concerned I consider that McGrath and Smith are more morally culpable than is Stoll in this matter. On any view of the facts the offender Triffit is the least involved and his sentence will be less than the other three offenders.

179. Further on the issue of parity, McGrath has a slightly stronger subjective case including what are known in shorthand as the “Bugmy factors” than Smith. However, she committed the offence for which she now appears for sentence while subject to conditional liberty and her criminal history is slightly more serious than Smith. Ultimately the considerations balance out and any difference in the sentences for Smith and McGrath would be very slight to the point were they would, in my view, be measured in weeks rather than months. The sentences for Smith and McGrath will therefore be the same.

180. For various reasons each offender will have a different commencement date of the sentence.

181. Mr Bouveng, counsel for Stoll submits that the appropriate commencement date for Stoll’s sentence is 9 September 2020. However, it is also conceded that the period Stoll has been in custody has included 4 months, 3 weeks and 6 days for revocation of parole and then a further 4 months fixed term for fresh offences. It is not appropriate that a sentence where those two other periods of custody are wholly concurrent be imposed. However, due allowance will need to be made for totality and the issue of partial accumulation of sentence for Stoll will need to be considered so far as a finding of special circumstances are concerned. I will commence the total sentence and the non-parole period for Stoll on 9 December 2020.

182. The offender Smith spent 375 days in custody between arrest and being granted bail on 1 April 2021. He has been in custody since the jury returned the verdict of guilty on 7 July 2021. As previously set out in these reasons I will allow 4 months backdating to take into account the onerous bail conditions to which the offender Smith was subject. The commencement date for the sentence in respect of Smith is therefore 29 July 2021.

183. McGrath was in custody from 4 June 2020 to 9 September 2020 and then a further 1 day on 6 November 2021, making a total of 99 days, and then from 4 June 2022 (when she was arrested in respect of a breach of bail) to the present. Accordingly, the commencement date for McGrath’s sentence is 20 December 2021.

184. So far as the offender Triffit is concerned he spent two days in custody on 18 and 19 August 2020 and he too has been in custody since the verdict was delivered by the jury on 7 July 2022. For reasons given, I allow 2 months backdating for reason of the bail conditions. Accordingly, the commencement date for Triffit’s sentence is 5 May 2022.

185. I turn now to the various matters attaching to the various s 166 Certificates. Stoll has attaching to a s 166 Certificate two charges of Possess Prohibited Drug. Those matters would ordinarily be dealt with by way of fine and accordingly the appropriate disposition is that pursuant to s 10A of the Crimes (Sentencing Procedure) Act.

186. Smith has a regulatory traffic matter which carries a fine only by way of maximum penalty. That too is dealt with pursuant to s 10A of the Sentencing Act.

187. McGrath has a charge of “Knowingly Expose Child to Drugs” contrary to s 36Y(2)(a) of the Drug Misuse and Trafficking Act 1985. The child Kaden was very young and would not have been aware what was going on, and on the night in question would have been asleep for a good portion of the time. Accordingly, I will also deal with that matter by way of s 10A of the Sentencing Act.

188. There is no s 166 Certificate in respect of the offender Triffit.

Orders

189. In respect of the offence that each of you:

On 14 May 2020 at Junee in the State of New South Wales caused grievous bodily harm to Tim Orr with intent to cause grievous bodily harm;

You are convicted.

190. In respect of the offender Stoll:

Sentenced to a non parole period of 3 years 2 months with a balance of term of 1 year 10 months. The total sentence is 5 years.

The non-parole period will commence on 9 December 2020 and will expire on 8 February 2024. The balance of term will commence on 9 February 2024 and will expire on 8 December 2025.

The offender Stoll will be eligible for release to parole at the expiration of the non parole period and I recommend that release.

The sentence indicates a finding of special circumstances for reasons given earlier in these reasons. The non-parole period is 63% of the total sentence.

191. In respect of the offender Smith:

Sentenced to a non parole period of 3 years 6 months with a balance of term of 2 years. The total sentence is 5 years 6 months.

The non-parole period will commence on 9 May 2021 and will expire on 8 November 2024. The balance of term will commence on 9 November 2024 and will expire on 8 November 2026.

The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

The non-parole period is 63% of the total sentence which indicates a finding of special circumstances, the reasons for which were given earlier in these reasons.

192. In respect of the offender McGrath:

Sentenced to a non-parole period of 3 years 6 months with a balance of term of 2 years. The total sentence is 5 years 6 months.

The non-parole period will commence on 21 December 2021 and will expire on 20 June 2025. The balance of term on parole will commence on 21 June 2025 and will expire on 20 June 2027.

The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

The non-parole period is 63% of the total sentence which indicates a finding of special circumstances, the reasons for which were given earlier in these reasons.

193. In respect of the offender Triffitt:

The appropriate sentence so far as the offender Triffit is concerned is 4 years, given his lesser involvement. However, he is entitled to a reduction in that sentence to the extent of 10% for assistance, which issue was dealt with earlier in these reasons. The total sentence is therefore 3 years 6 months, with some minor rounding down in favour of the offender.

Sentenced to a non-parole period of 2 years 2 months with a balance of term of 1 year 4 months. The total sentence is 3 years 6 months.

The non-parole period will commence on 5 May 2022 and will expire on 4 July 2024. The balance of term will commence on 5 July 2024 and will expire on 4 November 2025.

The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

The non-parole period is 63% of the total sentence which indicates a finding of special circumstances, the reasons for which were given earlier in these reasons.

194. In respect of the offender Stoll I direct that a copy of the report of Ms Gumbert be forwarded to the Department of Corrective Services with the relevant warrant.

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Amendments

21 December 2022 - Ordered by Lerve DCJ 21/12/21:

The sentence given on 8 December 2022 is reopened pursuant to s43 of the Crimes (Sentencing Procedure) Act.

The non parole period is to commence on 9 May 2021, not 29 July 2021 as previously ordered.

21 December 2022 - Amendment 21/12/22 related to sentence of Haydn SMITH

Decision last updated: 21 December 2022