R v Tafra; R v Westaway

[2021] NSWDC 833

District Court

New South Wales

Medium Neutral Citation:

R v Tafra; R v Westaway [2021] NSWDC 833

Hearing dates:

Thursday 25 November 2021

Date of orders:

Thursday 2 - Friday 3 December 2021

Decision date:

03 December 2021

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

Ongoing Drug Supply Matter

(1)   The offender, Lawrence Tafra, is convicted.

(2)   Sentenced to a non-parole period of 18    months with parole thereafter of 9 months    giving rise to an overall term of 2 years and 3    months

Detain for Advantage Matter

   Tafra:

   RE: Sequence 14, 15, 19

(1)    For the three substantive offences, the    offender is convicted

(2) He is sentenced pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 to    an aggregate sentence comprising a non-   parole period of 2 years with parole thereafter    of 18 months giving rise to an overall term of 3    years and 6 months
   RE: Sequences 17 and 22

(3)    Form 1 offences taken into account.   

   RE: Sequences 3 and 7

(4)    Backup offences: withdrawn and dismissed.
   RE: Sequences 1 & 6

(5)    Convicted.

(6) Pursuant to s 10A, no further order is necessary.

(7)    In each case, he is disqualified for the    minimum period of 6 months.

   RE: Sequence 4

(8)    Convicted.

(9) Pursuant to s 10A, no further order is necessary.

(10) The offender is disqualified for a period of 18    months.

Westaway:

(1)    The offender is convicted.

(2)   For each offence he is sentenced to a term of    imprisonment of 18 months to be served by    way of an ICO.

Catchwords:

CRIME — Drug offences — Ongoing supply — methylamphetamine — Detain for advantage — Circumstances of aggravation — Detain for advantage offences arose because offenders thought person had stolen drugs from them — Each offender involved in a drug supply network —Charges range from below the mid-range of objective seriousness to the middle of the range — Offenders 33 and 47 at the time of offending — Both offenders have criminal records — One offender committed offences whilst regularly using drugs — Both offenders have mental health issues — Both offenders have history of drug use from young age — Both offenders express remorse and contrition — No victim impact statements provided — Excessive charges and delays caused by EAGP scheme negotiations discussed.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW): ss 10A, 53A.
Crimes Act 1900 (NSW): ss 33B(1)(a), 86(2)(a), 193B(2).
Criminal Procedure Act1986 (NSW): s 166.
Drug Misuse and Trafficking Act 1985 (NSW): s 25(1); S25A.

Category:

Sentence

Parties:

Regina (The Crown)
Laurence Tafra (Offender)
Anthony Westaway (Offender)

Representation:

Solicitors:
Ms. C. Black; Ms. T. Jay (The Crown)
Mr. S. Bouveng (Offender, Tafra)
Mr. F. Falcomata (Offender, Westaway)

File Number(s):

2020/00260460 (Tafra)
2020/00356072 (Tafra)
2020/00262669 (Westaway)

Judgment

1. The offenders, Lawrence Tafra and Anthony Westaway, come before the court for sentence on offences of aggravated detain for advantage and using an offensive weapon, a motor vehicle, to intimidate. The offender Tafra is also to be sentenced separately for an offence of ongoing drug supply. I will first deal with the ongoing drug supply matter involving Tafra, and in due course I will deal with the offences for which both Tafra and Westaway are to be sentenced as co-offenders.

The First Sentence Matter (2 December 2021)
Lawrence Tafra

2. The offender Lawrence Tafra is before the Court for sentence following a plea of guilty in the Local Court to the following:

A charge of the ongoing supply of the drug, methylamphetamine, contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW), occurring between 1 and 7 September 2020. This offence carries a maximum penalty of 20 years' imprisonment.

3. He asks that, when sentencing him for this offence I take into account two additional offences to be found on a schedule to a Form 1 signed by him and on behalf of the DPP and exhibited in these proceedings. These two are separate charges of supplying methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 each of which carry a maximum penalty of 15 years imprisonment. Specifically, those two Form 1 offences are:

Form 1 Offence (Sequence 4): A charge that on 2 July 2020 at Armidale he supplied .25 grams of methylamphetamine, and;

Form 1 Offence (Sequence 6): A charge that on 31 July 2020 at Uralla he supplied 1.75 grams of methylamphetamine.

4. Those two offences were sent to this Court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) as related offences and have been placed on a Form 1 to be taken into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1986.

The Facts

Five Co-offenders Involved in a Drug Supply Network

5. The offender is one of a group of co-offenders charged and sentenced in relation to the same general facts. I have already sentenced the co-offenders Brazier, Murray, Poulton and Symington in one joint sentence judgment finalised yesterday, 1 December 2021. They should have all been heard and determine together. I will not repeat the comments already made in relation to the way in which all of these matters came before the Court in a piecemeal and unconnected fashion. That means that I have had to sentence Mr Tafra separately, even though I ought to pull together one judgment for the other four offenders.

6. The sixth co-offender, Watson, is for sentence in the next Armidale circuit commencing 31 January 2022, having been adjourned on the last occasion to enable a Sentencing Assessment Report to be prepared. The way in which these offenders have come before the Court is not the way it should occur, not the way the Court of Criminal Appeal says it should occur and ought to have been coordinated much earlier than when the matters came before the Court at the last circuit in September. I will repeat some of the findings made in relation to the other sentence because they are equally relevant for the sentence involving this offender based on the Agreed Facts relevant to him and tendered.

Police Strike Force on Drug Supply in the New England Region

7. Tafra's offending came to light as part of a strike force established to investigate the supply of methylamphetamine in the New England region. It was initially targeting the co-offenders, Poulton and Symington, and the other four offenders, including Tafra, came to light as a result of telephone calls being intercepted.

Structure & Organisation of the Drug Supply Network

8. The Agreed Facts indicate that Tafra, Brazier and Watson were upline suppliers of amphetamine in the New England region and were said to be upline suppliers to Poulton, Symington and Murray. As found in the earlier judgment, an analysis of the actual facts relevant for each of the incidents of supply which comprised each of the ongoing supply charges for all of the six offenders indicates that this agreed fact is not quite as simple and straightforward as it might appear.

9. Each offender was part of an overall drug supply network or organisation but which, in reality, was a circular-type supply situation involving each of them, with no one of them falling into the role of principal, but with each of them engaged in supplying usually relatively small quantities in a street dealer situation, sometimes slightly more than that and often supplying to each other. They were all drug users in the Uralla/Armidale area, all drug addicts, and all supplied for financial reward, in part, to enable them to have an ongoing source of supply for their own use but also for their own general financial purposes.

10. None of the offenders at the time would appear to have been in any form of gainful employment and, thus, in addition to Centrelink benefits, each of them, to an extent, relied on this drug supply for general living expenses. Whilst it is usual in matters such as this to describe such a group as a syndicate with a hierarchy, this description, in my view, is difficult to apply here. It was certainly a group of people, all of whom were supplying methylamphetamine and sometimes one or other of them was the upline suppliers and sometimes they were the actual street level dealer.

11. To the extent that there was an organisation, it was unsophisticated. Every member used his or her own phone to conduct the deals and there were no burner phones. Whilst the majority of supplies were conducted for cash, sometimes funds were transferred to the actual bank accounts of those doing the supplying, particular Ms Symington who then often did so in order to fund Poulton's actual street-level supply. There was little, if any, attempt to hide or disguise what they were doing with no evidence of code being used or particularly clandestine methods. It was what you would expect from a group of drug users and addicts gaining access to their drug of choice and supplying it to each other and others in the community, albeit a relatively large group of users.

12. There is absolutely no evidence at all before the Court in the facts relevant for Mr Tafra, or for any of the other co-offenders, of the source of any of these drugs, despite months of intercepted mobile telephone conversation, except for some reference that, from time to time, one or other of the co offenders either went to Sydney or had contact with someone in Sydney to enable access to a quantity of drugs to be supplied and brought up to the New England region. It is a sad reality of life that this drug, methylamphetamine, is rife in regional NSW generally and seems to be readily available and frequently used.

13. All of the people to whom this offender supplied fell into this depressingly large group of users of this drug in the Armidale/Uralla region, including the offender himself. This was not, in my view, a hierarchy in the way the courts would normally describe organisations involved in the trafficking of illegal drugs.    

The Facts Specifically Relevant to Tafra

14. The specific facts relevant to Tafra for the substantive offence are that, during the time period covered, that is, 1 September to 7 September 2020, he supplied methylamphetamine on 21 separate occasions for financial reward. The total of these 21 supplies was 17.65 grams and the total funds, according to the submissions made on behalf of the offender, which I accept because it seems to me it ought not be my job to add up amounts in facts, having been received for these supplies was between $11,000 and $12,000.

15. The particulars of each of these 21 supplies is to be found in paragraph 8 of the Agreed Facts. I do not propose to set them all out in this judgment. They are capable of being summarised, and should have been summarised, by the DPP in addition to the agreed facts. The supplies fell into two classes or categories, actual supplies, of which there were 6, and agreements to supply, of which there were 15.

16. Whilst there is a very strong inference, given the overall way in which this whole drug supply network operates, that each of those agreements to supply gave rise to an actual supply, there is no evidence of that. All of the evidence relevant for these 21 occasions appears to have come from the contents of calls intercepted either on Mr Tafra's phone or on other phones referring to his involvement.

17. In all cases the supplies were to individuals who, as I have already said, were drug users in the area. Two of the agreements to supply were, in fact, to the co-offenders, Watson and Murray. The offender asks that I take into account two Form 1 offences when sentencing for this matter. They are for individual supplies which occurred before the substantive offence. Sequence 4 occurred on 22 July, on which date he supplied .25 grams of methylamphetamine to the co-offender, Watson. The offender sent Watson a text message offering to supply this drug to him and met him in a laneway in Armidale that day to do so. It was for financial reward, but the amount paid is not in the facts.

18. The second Form 1 offence, sequence 6 involves the offender's supply of 1.75 grams of methylamphetamine to the co-offender, Poulton, on 31 July 2020. Poulton contacted the offender to tell him he had some people asking for drugs. The offender went to Poulton's house and supplied him with 1.75 grams of methylamphetamine for financial reward, but the amount is not in the facts. The offender, Tafra, was arrested on the morning of 7 September 2020 in a motel in Armidale and did not participate in a record of interview. He has been in custody bail refused for this matter and other matters ever since. In addition, he has been serving a term of imprisonment following revocation of an Intensive Corrections Order (ICO).

19. At the time of this offending, he was serving a term of imprisonment by way of ICO for the offence of drug supply and possession. Following his arrest, he was ordered to serve the balance of that ICO term, namely, 3 months, 1 week and 6 days, after the ICO was revoked. That sentence was from 7 September 2020 to 19 December 2020.

Objective Criminality

20. I turn to assessing the objective criminality of the substantive offence. Each of the individual 21 supplies is small. One supply on 4 September was for 3.5 grams and that is the largest of any of the individual supplies. The gravamen of this offence is the continuing or, as the name suggests, ongoing nature of the drug supply. The offence is committed if a person supplies drugs on at least three occasions over a 30-day period. Whilst the number of supplies over that minimum is not necessarily determinative of the objective criminality of the offence, nonetheless it is a relevant consideration. The overall quantity supplied also is not determinative but is relevant.

21. This is a large number of individual supplies over the period of a month and larger than is often seen in charges brought pursuant to this section. The total quantity supplied of 17.4 grams is not large but nor is it at the bottom of the quantity of drugs often the subject matter of a charge of ongoing supply. Whilst is it often open to the Court when sentencing for any offence to determine whether or not it was an isolated event, it is not appropriate to consider such issues with an offence which, of its very nature involves ongoing criminality. Moreover, in this case the offender was, at least as early as July, also supplying this drug in the same area on apparently the same basis as appears in the two Form 1 offences.

22. The substantive offence is a snapshot of what he was doing in September, which would appear to have been at least ongoing from July. The offender, it is clear from the substantive and Form 1 offences, was significantly involved in the trafficking of illegal drugs in the Armidale area but I accept the description in written submissions tendered on his behalf that, from his perspective, he should be viewed as a relatively small-time supplier undertaken by a hopeless drug addict in a small city to a small circle of friend and associates all ensconced in the same drug milieu. All of this places it, in my view, well below the mid-range, or at least below the mid-range, in terms of objective criminality but not at the very bottom. The fact that he was serving a sentence by way of ICO at the time for exactly the same offence increases the seriousness of his offending.

Subjective Factors

23. I now turn to the subjective features surrounding him. He is now 33. He has a criminal record which started in the Children's Court with offences of larceny and break, enter and steal, then assault and contravening AVO conditions. There was a break for a period of time and then his adult record commenced in 2016 for offences involving drug possession and supply, including a period of imprisonment in 2016/17. In 2018 he received a further short term of imprisonment for drug supply and possession and s 9 bonds. The conditions of those bonds make it clear that even then there were considerable issues in relation to drug addiction and mental health issues.

24. It was that bond that was called up in December 2018 which gave rise to the 2-year term of imprisonment to be served by way of ICO, which he was serving at the time he committed the offences before me. There are other non-fingerprinted matters on his record involving driving offences, more larceny, shoplifting and the like. He was also charged with dealing with the proceeds of crime in April 2019 which, on appeal to the District Court was dealt with by way of a 12-month term of imprisonment and a 7-month non-parole period which expired on 29 February 2020. It is only relevant to the extent that he was still on parole for this offence until 31 July 2020, which is outside the date for the substantive offence but inside the dates for each of the Form 1 offences.

25. He had, however, just been released to parole and was on parole when he was supplying drugs in July and that term of imprisonment had only just ended when he committed the substantive offence before me. This does not amount to an aggravating factor, but it is an issue for consideration in determining his real prospects of rehabilitation and also a consideration in assessing the need for specific deterrence. The criminal record does not allow him to claim leniency as it would if he were a person with no criminal record, but it is not, in my view, of such a character that operates as an aggravating factor.

26. There are a number of reports and other documents before the Court providing some background and other material. Two of those psychological reports were from 2018 when he was clearly before the Court on an earlier occasion and the other is a more recent psychological report of Ms Bollinger. The offender has also written a letter to the Court, which I have read. I accept from the combination of material before the Court that he had a supportive upbringing and that his parents remain supportive of him.

27. Regrettably, like so many people who come before this Court, he was sexually abused, in his case at school by a priest and a groundskeeper. He had not reported it, as I understand, until seeing Ms Bollinger for the purpose of the report for this offence but I accept both on the basis of the experience of this Court and, in particular the findings of the Royal Commission into the institutional sexual abuse of children that such events are very likely to have had adverse impacts on him and, in fact, have done.

28. At the age of 12 he started to run away from home and spent some time with an older girl, which was stopped by his parents. He then became angry and started using cannabis and drinking alcohol. He lived in various houses and was couch surfing. His parents continued to look for him, but he was abusive towards them and did not accept their help at the time. He descended into a cycle of drug use and committed the juvenile offences that can be seen on his record. The domestic violence offences, as I understand it, involve his parents and his poor attitude towards them at the time. Some of the people with whom he was spending time also were a poor influence on him and I accept, more probably than not, influenced him to them engage in some of the stealing and break and enter offences that appear on his juvenile record at the time.

29. His school behaviour deteriorated after the sexual abuse and, whilst he ultimately enrolled in high school, he did not complete any of the years and was frequently truanting. By his own report, he would usually only go to school to sell cannabis or see friends. He did not complete year 10. He made a modest income by selling drugs but also did some tree planting and there is a reference from a person for whom he worked in that capacity on a casual basis in later years. There is some work available for him in that field when he is available for release, but I also accept more probably than not he may undertake music performance.

30. His drug use in high school escalated from cannabis at the age of 12 to amphetamines and MDMA and hallucinogenics at the age of 14 or 15. He was involved in relationships at the time, two in particular. Neither of them would appear to have been positive and one would appear to have involved him as the victim of some physical abuse.

23. It would appear from his self-report to Ms Bollinger that, at the height of that dysfunctional second relationship, he took an excessive amount or perhaps an overdose of pills and was hospitalised. In 2019 he started a relationship with a new partner, and they had their first child, as I understand it, after he went into custody. He had not been able to have any contact with that child and the mother of that child has refused to bring her to see him. It is uncertain at this stage what might be the ongoing nature of that relationship. It is likely to be a potential source of some anxiety, however.

24. I accept that the offender started to use the drug methylamphetamine after the violent relationship ended and he then used it daily for a long period as a way of coping. When he was in custody in 2017, I accept that he stopped using cannabis and detoxed from cannabis. There seems to have been a period when he was relatively free from drugs but there were then further traumas in his life, including a friend who was seriously assaulted, and he went back to using methylamphetamine, stopped working and never went back to a drug free life. By 2018 he was using up to 5 grams of methylamphetamine a day and not sleeping for weeks at a time. His father continued to support him and tried to get him away from drug taking and the drug milieu but at the time unsuccessfully.

25. He has been diagnosed with mental illnesses, including post-traumatic stress disorder (“PTSD”) and depression. There had been an earlier diagnosis suggesting that he might meet some of the criteria for a diagnosis of borderline personality disorder, but there is nothing concrete before me amounting to a current diagnosis of that. He does, however, suffer from PTSD and depression, more probably than not arising from the time that he was sexually abused. He has dealt with his mental illness to an extent by using drugs and also has engaged in self-harm by cutting from the age of about 12.

26. He thus is a person who comes to Court with a defined and diagnosed psychiatric illness and I accept that there is at least an indirect connection between his offending and his psychiatric condition, as confirmed by Ms Bollinger in her report. I accept that he was using drugs as a way of coping with the trauma of childhood sexual abuse. He committed the offences now before me at a time when he was using excessive amounts of methylamphetamine, had not slept for about 20 days and was engaged in increasing self-harm by cutting. He has been provided access to counselling and assistance in the past to deal with this longstanding drug addiction but has not to date taken advantage of it to any real extent.

Involvement in Programs and Jobs in Custody

35. Since going into custody this time, however, I accept that he has done so. I accept that he has stopped using drugs and taken advantage of what programs may be on offer, limited as it is and has been during the present system because of the limitations arising from the COVID-19 pandemic. I accept from other material before the Court that he is a gifted and talented musician and has been able to earn a lawful income in the past in that field. When he first went into custody he was housed at Clarence and, whilst there, was employed as a peer tutor, teaching inmates to read, write and play music and also performing for inmates and staff.

36. He also involved himself in educational programs that were available, including a tertiary preparation program through the University of Southern Queensland. He also attended Narcotics Anonymous regularly at Clarence. He was transferred to Shortland in August this year where the same level of programs has not been available. He was, however, at Shortland employed as a sweeper in a COVID-19 isolation area until that position was made redundant. The Court is aware that being employed in the prison system in that capacity carries with it a degree of trust.

37. His time in custody has been somewhat more onerous than it might be because of the impact of the COVID-19 pandemic, which has included not being able to see family face to face and also a limitation on the availability of people providing services and programs. He has however, I accept, taken advantage of what is available and there are certificates tendered which establish that. In the letter that he has written to the Court, I accept that he has expressed real remorse and contrition and has some insight into the impact his offending by way of drug supply has had on the community.

Prospects of Rehabilitation & General and Specific Deterrence

38. His prospects of rehabilitation must be regarded as guarded given his lengthy history of drug addiction, but they are entirely dependent on remaining free of prohibited drugs, which has a connection to also being assessed and treated in relation to his psychiatric condition.

39. He will need assistance in the community to do that. He will have his parents available to him when he is ultimately able to be released and, on the material before me, I accept will probably be able to obtain some employment with his previous employer for whom he undertook some tree planting work. All of these aspects will assist his prospects of rehabilitation.

40. I accept that the existence of identified mental health conditions means that he is a somewhat lesser vehicle for general deterrence than others but, despite that, general deterrence must play a part in the sentence to send a strong message that those who would engage in drug supply, as he has, given the impact that that has on individuals and the community generally, must expect terms of imprisonment as a result.

41. The sentence should also indicate the need for a degree of specific deterrence for him, given his background. I do accept, however, that at least at present, he is doing everything that might be expected of him towards his own rehabilitation.

42. I must take the two Form 1 offences into account in a meaningful way. They are very small quantities, the subject matter of those two individual supply charges, and they are indicative of his ongoing involvement in the supply of drugs in the New England region at the time. They ought not, in my view, increase the appropriate penalty for the substantive offence, even when taken into account in a meaningful way. If dealt with separately, they almost certainly would be dealt with in the Local Court but way of something far less than a full-time term of imprisonment.

The Sentence

43. Taking all of that into account, I have concluded that the starting point for the sentence for this offender is 3 years, which I reduce by 9 months to take into account the 25% discount for the plea of guilty, which gives rise to an overall term of imprisonment of 2 years and 3 months.

44. There are some special circumstances, namely, the need for a longer than normal period of supervision in the community, the fact that COVID-19 has had an impact on the way in which he has experienced his custody to date and the fact that there will be some partial accumulation with the pre-existing sentence. I have concluded that there should be some partial accumulation with the sentence imposed following the revocation of the ICO. It should not be entirely concurrent, but I propose to overlap it by one month to take into account some totality.

45. Whilst I am conscious that whatever decision I make about the appropriate length of the non-parole period, the finding of special circumstances will be of limited value because the offender will not actually be eligible for release to parole then because he is facing at least one further sentence and perhaps another. Nonetheless I am required to do so and will do so and will deliver a second sentence and structure the commencement date of that sentence, taking into account the sentence for this offence. On those findings of special circumstances, I have concluded that there should be a non-parole period of 18 months, with a parole thereafter of 9 months.

Formal Sentence Orders

46. For those reasons then I make the following formal orders:

1. The offender is convicted for the substantive offence.

2. He is sentenced to a non-parole period of 18 months commencing 7 October 2020 and expiring 6 April 2022, with parole thereafter of 9 months commencing 7 April 2022 and expiring 6 January 2023, giving rise to an overall term of 2 years and 3 months commencing 7 October 2020 and expiring 6 January 2023.

3. Form 1 offences taken into account.

4. Re 166 certificate, sequences 4 and 6 are related offences dealt with on Form 1.

The Second Sentence Matter (3 December 2021)
Anthony Westaway & Lawrence Tafra

47. The second matters for sentence involve both offenders, Lawrence Tafra and Anthony Westaway. They are before the Court for a number of offences for sentence following pleas of guilty in the Local Court.

Offences related to Tafra

48. The offender, Lawrence Tafra, is facing three substantive offences as follows:

Sequence 19: A charge that on 5 September 2020 at Llangothlin he used an offensive weapon, namely, a motor vehicle, to commit the indictable offence of intimidation. That is an offence contrary to s 33B(1)(a) of the Crimes Act 1900, which carries a maximum penalty of 12 years' imprisonment.

Sequence 14: The second substantive offence is a charge of aggravated detain for advantage, contrary to s 86(2)(a) of the Crimes Act 1900, specifically that between 2am and 9am on 5 September 2020 at Llangothlin he detained Scott Handbo with the intention of obtaining drugs and money from him whilst in company with two unknown males and an unknown female.

Sequence 15: The third substantive charge is a further charge of aggravated detain for advantage, specifically that between 2.00am and 9.00am on 5 September 2020 at Llangothlin he detained Jody Bodsworth with the intention of obtaining money and drugs from her while in the company of two unknown males and one unknown female. Both of these sequences are contrary to s 86(2)(a) of the Crimes Act 1900 and carry a maximum of 20 years imprisonment.    

49. Yet again, like almost every one of the sentences which confronted the Court over the last two circuits in Armidale, there is a list of offences to be taken into account in one way or another. For him there are four offences to be taken into account as additional offences which are shown on a schedule to a Form 1 signed by him and on behalf of the DPP. They are to be taken into account when sentencing for sequence 19, the offence contrary to s 33B(1)(a).

50. Those four offences are as follows:

Form 1 Offence (Sequence 17): A charge of supplying 25.1 grams of methylamphetamine, an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, which, if sentenced separately, would carry a maximum penalty of 15 years imprisonment.

Form 1 Offence (Sequence 20): A charge of using an offensive weapon, contrary to s 33B(1)(a), namely, an axe, with the intention of committing an indictable offence, namely, destroying or damaging property. This also carries a maximum penalty of 12 years if sentenced separately.

Form 1 Offence (Sequence 21): This is also a charge contrary to s 33B(1)(a) of using an offensive weapon, namely, a knife, to commit the indictable offence of intimidation and also carries a maximum penalty of 12 years if sentenced separately.

Form 1 Offence (Sequence 22): A charge of dealing with the proceeds of crime, namely, $28,750 in cash, which is an offence contrary to s193B(2) of the Crimes Act 1900, which would carry a maximum penalty of 15 years imprisonment if sentenced separately.

51. Each of these Form 1 offences is a serious offence in its own right as the maximum penalties indicate. These Form 1 offences must be taken into account in a meaningful way when sentencing for sequence 19.

52. I will deal with an analysis of these Form 1 offences in due course but, again, this sentence has been rendered lengthy and complicated because of the number of additional offences to take into account.

53. Even if that were not enough, there is a group of entirely summary matters sent up to this Court pursuant to s 166 of the Criminal Procedure Act 1986 to be dealt with as related offences following sentence for the substantive matters. They are the following:

Related Offence (Sequence 1): A charge of driving with a cancelled licence on 5 September 2020 at Guyra.

54. Whilst I have the offender's traffic history and the facts relevant for this, I am not provided with any information whatsoever in relation to the maximum penalty for this offence or the disqualification periods which attach. No doubt that will be rectified before this sentence is concluded. Alternatively, I will do this myself, requiring extra time involved by way of research, which ought to be unnecessary. In any event, this matter should have stayed in the Local Court where it belongs and not taken up the time of a busy District Court circuit.

Related Offence (Sequence 4): A charge of driving in a manner dangerous. It is part of the factual matrix of the substantive offence, sequence 19, and again I am provided with no assistance by way of the maximum penalty for this offence and any relevant disqualification period or the like. Again, it is a matter that ought to have stayed in the Local Court where it belongs.

Related Offence (Sequence 16): The remaining related offence is another charge of driving with a cancelled licence on the same day in Guyra and the same comments apply.

55. These three related offences are completely unnecessary, ought not be in this Court and ought not be taking up the time of this Court dealing with much more serious offences. The other two related offences on the s 166 certificate have been dealt with now as additional offences on the Form 1. I repeat the comment that I have made on more than one occasion over the last three weeks for this circuit, and three weeks in the previous circuit, that it is hard to see what the point of all of the lengthy negotiations and case conferences in the Local Court is, under the provisions of the EAGP Scheme, which often delays serious offences like the ones before me today coming before the Court at an appropriately early time, being offences which were always going to have to come before this Court for sentence given the nature of the offences. It often takes up to a year for this process to be finalised and, even then, with lengthy negotiations, offences sent to this Court as related offences then end up being placed on a Form 1 and others are sent to this Court which ought to remain in the Local Court. In any event, the result here is that I am to sentence Tafra for three substantive offences, four offences on a Form 1, and three related offences, so ten offences all together.

Offences related to Westaway

56. For Anthony Westaway, he is to be sentenced for two substantive offences. He pleaded guilty in the Local Court and was committed for sentence with a Charge Certificate, which is how it should have stayed, but he fell into the curious practice then in place at Armidale District Court of being re arraigned on indictment. That occurred on 30 July, and he pleaded guilty to those two offences for which he had already been committed for sentence. Thus, whilst on the face of it, he appears to have pleaded guilty in the District Court on arraignment, in fact, he pleaded guilty early in the Local Court to sequences 2 and 3 and was committed for sentence on them.

Sequence 2: This is count 1 in the indictment and is a charge of aggravated detain for advantage, namely, that on 5 September at Llangothlin and elsewhere, in company with others, he detained Scott Handbo without his consent and with the intention of obtaining an advantage from him, namely, amphetamine and cash.

Sequence 3: This is count 2 in the indictment and is a charge in identical terms, and involving the victim, Jody Bodsworth.

The Facts

57. As will be clear both in relation to Westaway and Tafra, the facts are before the Court by way of Agreed Facts, which clearly have been the subject of some negotiation. They do not match the particulars of the four detention charges relevant for each of the two offenders as to the time at which the detention occurred and the place at which the detention occurred. Clearly enough I will act on the Agreed Facts in determining the nature of the offences and the objective criminality, not the particulars in the charge.

58. As I have said, Mr Westaway is then facing sentence for those two substantive offences, being counts 1 and 2 in the indictment, which are sequences 2 and 3 to which he originally pleaded guilty in the Local Court. Mercifully, there is no Form 1 document relevant for Mr Westaway, nor any related offences, nor any backup offences, from what I can see. All of those, whatever they might have been, if at all, were dealt with, where they always should have been, in the Local Court.

59. The relevant facts, as I have said, are before the Court by way of Agreed Facts for each of them. The matters are to be sentenced separately but the facts overlap. There would not appear to be any real conflict between the two offenders so far as the Agreed Facts are concerned and I will deal with them together, but they will be separately sentenced on the particular facts relevant for each of them.

60. In the early hours of Saturday 5 September 2020 three people went to an address in Brewery Lane at Armidale for the purpose of stealing methylamphetamine from Lawrence Tafra. Lawrence Tafra was a person at the time who was involved in drug supply. Those three people were Scott Handbo, Jody Bodsworth and Jessica Davis, two of whom are the victims of the detain for advantage offences relevant for each of the offenders. Handbo picked up a half an ounce of methylamphetamine from a bench when Tafra was looking away and took it back to his car without paying. Bodsworth and Davis were apparently in the car. He told Bodsworth to drive away, which she did, with Davis also in the car. They drove out of Armidale on the New England Highway and stopped at the Black Mountain Roadhouse to get some water. Tafra discovered the theft and pursued them in his car.

61. When the trio came out of the roadhouse and drove back onto the highway, they noticed that Tafra was driving closely behind them, which caused them to be fearful. His licence was cancelled at the time, which is the subject matter of one of the related offences of driving with cancelled licence. It is hard to know exactly how I am supposed to deal with that , but deal with it I must in due course as a related offence. As they drove through Guyra with Tafra close behind them, all were travelling at well in excess of the 50 kilometre per hour speed limit. Tafra tried to ram the back of the other vehicle, which caused Bodsworth to lose control of her vehicle. It spun around, the engine stopped, and the car came to a stop.

62. Ms Davis got out and moved away. Handbo also got out, before Tafra approached the car and smashed the rear passenger window with a tomahawk. That is one of the Form 1 offences, namely, using an offensive weapon, particularised as an axe, with intent to commit the indictable offence of destroying or damaging property, namely, sequence 20. It may be that that could have easily been dealt with as part of the factual matrix but, nonetheless, it is a Form 1 offence that I must take into account in a meaningful way. Bodsworth managed to get the vehicle started again, Handbo got back in, and they then drove the vehicle north, again at speed.

63. Davis did not get back into the car at that stage. Tafra went back to his car and followed the other two through Guyra, both travelling well in excess of the speed limit. They reached speeds of about 180 kilometres per hour on the highway north out of Guyra. Handbo and Bodsworth tried to get away but could not. Tafra tried to overtake them.

64. Bodsworth and Handbo thought that they would be involved in a crash and so slowed down when they were in Llangothlin, travelling at just in excess of 100 kilometres an hour. Tafra tried to overtake them again and his car collided heavily with the other car, causing it to spin around and lose control and it rolled. In the collision Bodsworth lost consciousness but apparently regained it relatively quickly.

57. Tafra approached the car armed with a 60-centimetre knife in a sheath on his hip. He demanded his drugs back. He told Bodsworth and Handbo to search the car wreck for the drugs, which they did. They located the drugs and handed them back to him, but he believed that there were some still missing and forced them to continue searching around the collision site with their hands whilst he was armed with the knife in a sheath on his hip. These would appear to be the facts for another of the Form 1 offences, namely, using that knife with the intention of committing the indictable offence of intimidation, namely, intimidating them to continue searching for drugs in the car wreck.

58. At about 4.00am Tafra called the co-offender, Westaway, and, according to the facts, also Ahoy, and asked them to come to the scene to drive him home. According to the facts before me, Ahoy arrived, followed by another car driven by Sarah Westaway with Anthony Westaway in the front passenger seat. All of them searched various parts of the highway for the missing drugs but they were not located.

59. Handbo and Bodsworth got into the car, which had arrived driven by Ahoy according to the facts, and drove back to Armidale. Apparently, although the facts are a little unclear about this, they picked up Davis on the highway or thereabouts where she had got out of the car when the first collision occurred and, at that stage, all three, Bodsworth, Handbo and Davis, were in the back of the car, with Ahoy driving and the offender, Tafra, also in the front.

60. They all went back to Westaway's house in Armidale and, according to the facts, Tafra went into the shed to charge his phone. At that stage Handbo and Bodsworth were in the driveway. The facts are silent about where Davis was at that stage. It was at this point, according to the facts relevant for both of the offenders, that the detention of Handbo and Bodsworth commenced. The Westaways, including the offender before me, turned up in their car.

61. The facts are then cast in the passive tense without indicating who, in fact, conducted most of what occurred next but, according to the facts, Bodsworth and Handbo were ushered into the garage and from them on were not free to leave. There was an unknown male there already who was holding a lawnmower blade. Whilst the facts do not make it clear, the pleas of guilty by each of the offenders before me to both the detention offences involving both victims, together with the facts indicating that the detention commenced at that point, must indicate that each was at least physically present from then for a period of time. Clearly enough from his plea of guilty, Mr Westaway indicates that he was involved in the detention from then, but the facts tendered in relation to him also indicate that at this stage he was upset because it was apparently a family day at his house, and he was keen to get everyone away from the house.

62. He offered everyone cool drinks, including it would appear the victims of the detention. Sarah Westaway, according to the facts, took Bodsworth into a room and searched her for drugs but located none. According to the facts, Handbo was also searched, although it does not indicate by whom, but nothing was located. Handbo was told, again not indicating by whom, that he needed to come up with $4,000 to pay for what he had done. He made contact with his mother who transferred $1,000 to him so he could pay some money to them. The facts then say Tafra left at some stage. The facts also indicate that, whilst Tafra was waiting outside for a taxi, Handbo approached him and offered to come with him to withdraw the $1,000 but Tafra declined and left. According to the agreed facts, this seems to be the conclusion of the detention.

63. There is nothing in the Agreed Facts from which I can determine how long the detention lasted, except for what follows in relation to Tafra and an intercepted telephone conversation in which he was engaged. However, not long after the end of the detention, or at around about the end of the detention, those who were involved in it, or otherwise remaining at Westaway's house, were apparently smoking ice in the garage and Handbo and Bodsworth ran away over the rear fence to a nearby house where they sought assistance from the police.

64. The facts seem to indicate that Tafra had left by that stage but others, including the offender, Westaway, tried to locate them when it was discovered that they had gone. In particular, Mr Westaway used a drone to do so, which is something he had told another person, but that attempt was unsuccessful. Westaway was not arrested until 9 September and has been in custody since then, bail refused, and for other reasons, which I will deal with soon.

65. The following day Tafra spoke to another person named in the facts and explained what had happened. In particular, he admitted that he had tried to run the victims off the road because they had, in his terms, ripped him off, that they had flipped into a ditch, and that he made them search through the wreckage at knifepoint to find the drugs.

66. He admitted that he had held them hostage and said that he then left and went home and that they escaped within an hour. That is the only evidence from which I can make any finding about the length of this detention. Apparently, this occurred during the course of an intercepted telephone call. As is known from the sentence otherwise dealt with today in relation to Mr Tafra, his phone was being intercepted by police at the time as part of a strike force investigating the supply of methylamphetamine in the New England region. During the course of this intercepted call, Mr Tafra made admissions in relation to each of the three substantive offences before me here.

67. In the early hours of 7 September Mr Tafra booked into a room in the Powerhouse Motel. He apparently drove there in his car and yet again his licence remained cancelled, which is yet another of the related offences which I must deal with. Again, how to do so and why are two unanswered questions. At about 10 that day police went to the motel and arrested Tafra. They searched him and found three resealable bags, which contained .1 grams of methylamphetamine. They also searched his car and the motel room.

68. They found a clear resealable bag with methylamphetamine in the bedside table and there were three clear bags containing various quantities of methylamphetamine in a speaker in the car. The total of methylamphetamine in his possession at the time of his arrest was 25.1 grams. That is sequence 17, a deemed supply charge, one of the Form 1 offences to take into account. Also, in the speaker police located a quantity of cash in $100 and $50 notes with a total of $31,750. It is agreed that $28,750 were the proceeds of crime and are the subject matter of the last of the Form 1 offences.

69. Mr Tafra has also been in custody, bail refused, since the time of his arrest on 7 September for this and for offences of ongoing drug supply. His custody also subsequently involved a term of imprisonment backdated to 7 September following the revocation of an ICO. He was subject to that ICO for an offence of drug supply and possession at the time he committed these offences which, of course, increases his criminality.

70. The commencement date for the sentence which I will impose on Tafra is further complicated by the fact that today he was also sentenced for the charge of the ongoing supply of methylamphetamine, and that sentence was a non-parole period of 18 months commencing on 7 October, which expires on 6 April 2022, with a 9-month parole period thereafter. The starting point for the sentences which I must impose for the offences now before me must reflect the total criminality for all of the offences.

71. Westaway has been in custody, bail refused, for this matter since 9 September. At the time he too was serving a term of imprisonment by way of ICO, which was also for an offence of supplying a prohibited drug and dealing with the proceeds of crime. The longer of the two terms was a term of 18 months to be served by way of ICOs and both commenced on 26 May 2020.

72. He was serving those terms at the time he committed the offences before me, which, in his case, also increases his criminality. That ICO was revoked by the parole board on 22 September 2020, and he was sentenced to a term of imprisonment of 1 year 2 months and 3 weeks, effectively the balance of the term of imprisonment originally ordered to be served by way of ICOs.

73. That term commenced on 9 September, the date that he went into custody. It did not expire until Monday this week, 29 November. From documents produced by the Parole Board, it is clear that it has been reviewing that decision, awaiting the outcome of these sentence matters, which themselves, did not apparently come on for sentence until the circuit in September 2021. In effect, he has served most of the 18 months term of imprisonment full time without any opportunity to be released to parole because he was bail refused on the matters that are before me. The commencement date of his sentences must also reflect this.

Objective Criminality

82. I now turn to assess the objective criminality of the offending for both offenders. For Mr Tafra the three substantive offences obviously are serious. The detain for advantage offences are serious offences, as is reflected by the maximum penalty of 20 years. Further, the offence of detain for advantage or kidnapping has long been regarded as a serious offence. It is a very serious matter to detain a person and to deprive them of their liberty. Each detention offence, however, must be judged by its own facts and, in my view, both from the perspective of Tafra and Westaway, none of the detention offences here is a serious example of that offence.

83. There are factors relevant for both of them that inform a finding of objective seriousness. One is that the victims were detained for a relatively short period. At best, from the facts, it was for about an hour. Further, there was no evidence that during the detention at Westaway's house there was any physical violence or threats of violence being made and no weapons used during the course of the detention. They were not physically harmed. Further, they would appear to have been relatively free to leave, notwithstanding the pleas of guilty, and, certainly, as already stated, at one stage Handbo left and waited outside with Tafra for a taxi and offered to come with him to obtain more money.

84. The purpose of the detention is also a matter that I take into account, namely an attempt to recover either drugs that were stolen or money value for them from Handbo and Bodsworth. There is, of course, no legal claim of right to do so, but I take into account the fact that the victims of these two offences were equally involved in the drug culture in Armidale and Uralla and, whilst stealing or, in the vernacular, ripping off Mr Tafra's drugs may not amount to provocation, as it is understood in the Crimes (Sentencing Procedure) Act 1999, nonetheless the offence occurred in circumstances where it was Handbo, Bodsworth and Davis who commenced the offence by stealing drugs from Tafra and then running away. It is no excuse for detaining someone for advantage, but this does provide some surrounding circumstances for consideration of the objective criminality. In my view, the detention charges for Tafra are below the mid-range in terms of objective seriousness on those considerations.

85. For Westaway, the facts for him, in reality, are virtually silent about the circumstances of the detention, but equally, the detention was short. His involvement would appear to have been largely to allow his house to be used but, again, not only is there no evidence that he was involved, or anyone was involved in any level of violence or threats, on the contrary, he offered cool drinks and appeared to be hospitable. There is no evidence as to why he became involved in this offence at all and it would appear, more probably than not, just because of his association at the time with Tafra and the fact that he was spending time in the company of people in the drug-taking milieu in Armidale and Uralla. He arrived and was in a position to commit the offence he did, it would appear, merely at the request of Mr Tafra to come to help to drive him back from the collision scene. The objective criminality from his perspective is low and lower than Tafra in those circumstances.

86. The sentence relevant for each of them for the detain for advantage offences should incorporate an element of general deterrence. As I have said, the community regards the deprivation of someone's liberty as serious and there needs to be a message sent that members of the community are not permitted to do so to deal with some perceived wrong or to recovery money or property. Clearly, the threshold for imprisonment is reached in each case. There needs to be a strong message sent that this is the outcome should people involve themselves in such behaviour, even if they themselves share part of the blame, as these two victims did do.

87. The objective criminality for the other offence faced by Tafra, however, is more serious, that is, the offence of using the offensive weapon to commit an indictable offence of intimidation. His driving was very dangerous. Bodsworth was rendered unconscious as a result of the collision that occurred using the offensive weapon to intimidate in the way that he did. Fortunately, given that it was in the early hours of the morning on the New England Highway around Guyra in September, the roads were, it would appear, empty but the potential for harm was ever present. Even though it has a lower maximum penalty of 12 years compared to the two detention offences, in my view it is by far and away the most serious of any of the offences that he faces. Fortunately, he is not before the Court facing far more serious offences because his manner of driving had led to the death or serious bodily harm of one of the occupants of that car. The objective seriousness of that offence, in my view, is it is around the middle of the range, perhaps a little below in the circumstances.

88. The sentence that I must impose for him too must take into account in a meaningful way the four Form 1 offences. None of them is a minimal offence. The drug supply involving 25 grams of methylamphetamine is not a low-level drug supply. Using the axe and knife in the way he did are also examples of using an offensive weapon in violent ways to commit indictable offences, the latter being another case of intimidation. They must be taken into account in a meaningful way when sentencing. Because of that, the appropriate sentence for sequence 19 will be somewhat higher than it might have been had there been no Form 1 offences to take into account.

ANTHONY WESTAWAY

Subjective Factors

89. I now turn to deal with the subjective circumstances for each of them, starting first with the offender, Westaway.

90. He is now aged 47. He has a criminal record, but it seems to me that it is not a particularly lengthy record. He has entries in the Children's Court from 1990 for break enter and steal and some relatively minor summary offences as an adult for offensive conduct, malicious damage and destroying property. There then appears to be a long gap between those offences, the last of which was in 1995 and offences have then started to occur in 2019 when he began a spree of offending, including drug supply. These offences were committed in June 2019 and are the offences for which he was ultimately ordered to serve terms by way of ICOs, to which he was subject at the time he committed the offences before me. There is also one driving offence around the same time and, just before his arrest for this offence, a larceny matter dealt with by way of fine. His criminal record is not extensive and, in my view, is indicative of what appears in other material before me, of his life getting out of control from about 2018 and following.

91. I have read the affidavit of his mother and from that I accept that this is exactly what did occur. I accept that his marriage broke down in about 2018 and he lost his business, two close relatives and the job that he had held as a diamond driller. He had been in solid employment in the mining industry as a diamond driller from about 1992. He had been prescribed medication for his worsening depression, but this had some adverse impacts on his ability to return to work.

92. I accept that from around about this time his life spiralled out of control. He started to use large quantities of methylamphetamine and that meant that he started to associate with those people with whom he committed the offences before me. Up until his arrest he was the sole parent of two boys and the carer of his father, who is blind. His father has also recently been diagnosed with cancer and is about to undertake treatment. His parents are looking after the two boys, who are now aged 6 and 13, with some input from their mother, and his mother's affidavit makes it clear that the combination of factors makes her ability to care for the boys difficult and she would benefit from the offender being released as soon as possible to return to his role as carer of the children.

93. From other reports tendered I accept that the offender had a disrupted childhood. Like so many who come before this Court charged with offences, he too apparently was sexually abused as a child, not in an institution but by a neighbour when he was aged between 5 and 10 and also by a family member when he was a young teenager. He did not disclose this to anyone until he was about 24 and, when he did so, he was well supported by his parents. However, as the Court is aware, these matters normally have traumatic adverse impacts on people and he was no different. At the same time, when he was in high school he was witness to at least one very traumatic death of a friend and was also significantly adversely impacted by the death of another friend.

94. He went to counselling as a child in relation to behavioural issues and had difficulties at school, getting into fights. More probably than not he was suffering from mental health issues well beforehand but from about 2017 and onwards these became more manifest and particularly so following the breakdown of his relationship. He started to use alcohol and the drug known as ice, or methylamphetamine, to manage his emotions and, at the same time, he was taking on the role of a single parent and became overwhelmed. He attempted an overdose on one occasion in 2018 and had one suicidal attempt after he went into custody. Fortunately, I accept from the most recent report, these feelings are, at best, currently only fleeting and no longer a cause for concern and I accept he is suffering from a major depressive disorder and also an anxiety condition.

95. It would appear that he is an Indigenous Australian man but, apart from that description, there is nothing much before me in relation to that. As I have said, he would appear to have had a lengthy period of non-offending and also stable employment in the mining industry both in Queensland and NSW. That seems to have been between 1992 and 2018 but his life spiralled out of control thereafter as a result of his ongoing mental health issues and the fact that he started to use methylamphetamine, in particular, in large part to deal with his mental health and the other stressors of his life.

96. He had used other drugs, including cannabis, and was a heavy user of ecstasy and amphetamines generally in the past and he also had a long-term overuse of alcohol from mid-adolescence, but the major issue involving substance abuse arose when he started to use methylamphetamine from about 2017 onwards, which spiralled out of control quickly. He used more and more drugs to deal with the trauma of his relationship breakdown and this was overlaid on his severe depression and moderate anxiety. I accept that, since going into custody, he has taken steps towards his own rehabilitation. He has indicated a degree of insight to report writers. He has constantly said that he felt sorry for having committed the offences before the Court and I accept that they are genuine expressions on his part.

Prospects of Rehabilitation

97. It seems to me that his prospects of rehabilitation are relatively good in the circumstances. He needs treatment in the community as soon as possible to deal with his mental health issues and also drug counselling to prevent relapse into drug use. In deciding what would be a commencement date of any sentence for this matter, I take into account, as I have said, the fact that he was sentenced to one year and more following the revocation of the ICO for a drug supply charge. Whilst a submission is made on his behalf that whatever sentence I impose should be entirely concurrent with that term of imprisonment, it seems to me that it should not be entirely concurrent. The sentence of 18 months was imposed for a drug supply. I know nothing about it apart from the fact that it was a drug supply, which was significant enough to give rise to a term of imprisonment of 18 months, albeit to be served by way of ICO. He breached that by committing the offences before me. He had completed only four months of that ICO at the time he did so. He has remained in custody for the rest of the time.

The Sentences

98. It is necessary for the Court to find a way of determining the totality between the two offences before me and that other offence, the drug supply offence. It is difficult to know how to do that. However, it is also clear from the material tendered from the Parole Board that they may well have released him back to an ICO or to have reinstated the ICO had he not been bail refused for these matters, at the very latest from 1 May, being the date of the first document that is tendered.

99. He was required, however, to serve effectively the whole of 18-month sentence except for 4 months because he was bail refused for these matters. There should be, in my view, some partial accumulation and I propose to do that by effectively commencing the sentence from 5 months after the date on which the Parole Board imposed a sentence following the revocation of the ICO. That was on 9 September, which means that I am considering a sentence which would start from 9 February. By that reasoning, he has served almost 10 months in custody for these offences only, even though, in fact, remaining in custody following the revocation of the ICO.

100. There is a submission before the Court that I would consider imposing a sentence that would allow for a finding that it be served by way of ICO. I accept that the sentences should reflect the low objective criminality for him and would likely give rise to a sentence for which an ICO could be considered. There are two victims, so two offences, but in my view, this is one episode of criminality, and, in the circumstances, it is not necessary to effect any partial accumulation. The relevant sentence should be the same for each and each served concurrently with the other.

101. I have concluded that a starting point for each of these two offences would be 3 years, which would mean, after deducting 25% for early pleas of guilty, that would mean a term of imprisonment of 2 years and 3 months. In determining what the appropriate sentence ought be, however, I take into account the 10 months that I have determined he has already spent in custody using the process of reasoning that I have already outlined, that is, approximately 9 or 10 months.

102. For those reasons, I have determined that the appropriate sentence for each of these matters should be 18 months, each served concurrently with the other, and it is, therefore, open to the Court to consider whether the sentences could be served by way of an intensive correction order. I have determined that this is an appropriate course.

103. The offender's rehabilitation, in my view, would be better served in the community with access to psychological counselling and drug counselling, allowing him to be available, therefore, to provide care for his children and his father. He does not have a history of violence on his record and this offending behaviour, even at the low level that it is, is out of character. There is no risk to the community of him serving these sentences in that way. What I propose to do then is to order 18 months, each concurrent with the other, and order that it be served by way of ICO.

104. I do note that it is the submission of the Crown that, even if the length of the sentence is determined in a way that would enable it to be served by way of an ICO, that would be inappropriate given that the offender committed these offences while subject to an ICO. I take that submission into account, but it seems to me that this is an offence of a very different nature to the one the subject of the earlier ICO and is of very low objective criminality from the perspective at least of this offender and, on this occasion, allowing him to serve the sentences by way of ICO is appropriate. It also takes into account the fact that he has served the equivalent of 10 months in custody for this offence, on my calculation.

Formal Sentence Orders

105. For those reasons then, for Mr Westaway I make the following formal orders:

1. For both offences, Sequence 2 and 3, he is convicted.

2. For each offence he is sentenced to a term of imprisonment of 18 months to be served by way of an ICO.

1. He is to be subject to the standard conditions.

2. Additional conditions that:

1. He engage with a psychological for treatment to manage symptoms of depression, and;

2. That he engages in substance use treatment to prevent future drug relapse, and;

3. That he seeks psychiatric review in relation to psychiatric medication.

LAWRENCE TAFRA

Objective Criminality

106. I now return to the specific judgment in relation to the co‑offender Tafra and return in particular to the findings made previously in relation to the objective criminality of the detain for advantage charges relating to Mr Tafra. I have reviewed the facts in relation to him and it is clear that the objective criminality for him on those two detain for advantage offences is also very low, and a closer examination of the facts does not in reality in my view show that his objective criminality was higher than that of Mr Westaway. That was a finding made yesterday which I have revisited and revised.

107. Mr Tafra's involvement in the detention of Handbo and Bodsworth only occurred at all because the offender Mr Tafra made it possible, and it was for his benefit that the detention occurred. The object of the detention was to obtain the advantage for him, namely the return of his drugs or money to pay for them, so his motivation to commit the offence was more direct than that of Westaway, for whom there was no real reason advanced for his involvement in the detentions except for his connection with Mr Tafra and the others involved in the drug taking milieu in Armidale.

108. However, whilst that was the purpose of the detention and therefore is more closely connected to Mr Tafra, his physical involvement in the detention on a review of the actual facts tendered for him is even less, it seems to me, than that of Mr Westaway. The facts indicate that when the two victims were brought back to the Westaway's property, Mr Tafra went to a shed to charge his phone and left the two victims standing in the driveway, after which the Westaways and others arrived. The facts indicate that they were then ushered into a garage but do not say by whom.

109. It was Sarah Westaway who took Bodsworth into a room to search her and someone else, not identified, searched Handbo. Someone, also not identified, informed Handbo that he had to pay $4,000 for the drugs and Handbo arranged access to $1,000 from his mother, but there is no reference in the facts relevant for Mr Tafra at all in relation to any part that he played in all of this. I can only infer from the plea of guilty that he was involved, more probably than not present, but involved whilst they were detained in the garage, but he was there for an even shorter period than Westaway and the others.

110. As is also set out in the facts, he departed and waited outside for a taxi, at which stage Mr Handbo, apparently free to leave the garage, notwithstanding during the period of detention, came outside and offered to go with him to withdraw the $1,000 that he had organised. Mr Tafra declined and left. It would appear from the facts that Handbo at that stage either went back to the garage, or in any event everyone else who was remaining, including Westaway, were in the garage smoking methylamphetamine, at which point Handbo and Bodsworth are stated to have left or escaped and jumped over the back fence. By this stage, the end of the detention according to the facts, Tafra had already left and appears to have withdrawn from the detention at some stage before it came to an end.

111. His involvement for an hour at most can only be gauged by what he told another person the following day which was captured from the intercepted telephone conversation. He was not there at the end and did not, unlike Westaway, try to locate the two victims after they escaped. Even though the whole detention was for his benefit, and in reality would not have happened at all if he had not called people to come and collect him from the crash scene on the New England Highway and arranged to have the victims and Ms Davis taken back to Westaway's property, in fact he was not even as involved in the physical detention as was Westaway.

112. The same considerations apply to which I already referred yesterday, namely that the detention was short, for him even shorter than for Westaway, there was no physical violence used on either of them and no evidence of threats of violence. There were no weapons used. There was even, it would appear, notwithstanding that this is a plea of guilty to detention, nothing in particular preventing at least one of them from leaving to stand outside whilst he waited for a taxi.

113. Overall, it seems to me that these considerations mean that the objective criminality for Mr Tafra in relation to the detention charges is about on par with that of Mr Westaway. As such, I make the same finding, namely that as for offences capable of being charged under this section, they are very low-level offences, in addition, as I have said, to all of the other factors I have already identified.

114. Similarly, as for Mr Westaway, in determining the appropriate penalty for each of these detention charges I also take into account that there is more than one victim, but it is one overall episode of criminality and as such similarly for Mr Westaway the sentence for each of the detention charges should be served concurrently with each other. The threshold for imprisonment is clearly crossed, and in the case of Mr Tafra only full-time custody will suffice for a variety of largely practical reasons, including the fact that he is already serving another sentence for which the non-parole period does not expire until April 2022.

115. For the s 33B offence, however, I repeat the findings already made, that it is a more objectively serious offence. The offensive weapon used was a car and so to that extent the offensive weapon is towards the bottom of the range for implements that fall within that category. This is not a case in which the offender used a knife or similar offensive weapon capable of causing immediate harm, but nonetheless the way he used the motor vehicle amounted to an offensive weapon, and he did so in a way that was very dangerous. The speeds that he reached whilst chasing the two victims along the highway were extremely high, and he drove dangerously. That is a matter that I take into account in determining the objective criminality overall of the 33B offence, which therefore minimises the extent to which that separate offence of dangerous driving should increase the appropriate penalty as a Form 1 offence. One of the two involved in the crash, Ms Bodsworth, was knocked unconscious as a result of the car rolling.

116. As I said yesterday, it seems to me that it is around about the middle of the range for offences capable of being charged under this section, albeit perhaps a little below. It is not necessary in circumstances where this is not an offence which carries a standard non‑parole period to make any specific determination of where this lies, but it has always been necessary for sentencing judges to determine where on the continuum of offences any particular offence lies. I must also take into account the maximum penalty of 12 years when determining the appropriate penalty.

117. The circumstances of the offending of themselves, without more, mean that the s 5 threshold is clearly crossed, and only full-time custody will suffice. Fortunately, it would appear that nobody was seriously injured. There is nothing before the Court by way of victim impact statements, which is hardly surprising, and whilst it was that Ms Bodsworth was knocked unconscious, it would appear that she regained consciousness quickly and there is nothing to suggest that in relation to either of the three offences there is any ongoing serious injury suffered by either of the two victims of the offences.

118. Before turning to the subjective factors surrounding Mr Tafra, I also note that these pleas were entered early and he is entitled to the 25% discount to represent the utilitarian value of those pleas.

Subjective Factors

119. In large part I simply repeat the findings made in a sentence delivered yesterday for Mr Tafra for the offence of ongoing drug supply. He is now 33. He has a criminal record which started in the Children's Court with offences of larceny, break enter and steal, then assault and contravening AVO conditions. Those offences were in about 2004. His adult record does not appear to have commenced until about 2016, and largely involves drug possession and supply charges. There was a period of imprisonment in 2016. In 2018 he received a further short term of imprisonment for drug supply and possession plus a 2-year s 9 bond for those offences.

120. The conditions of those bonds make it clear that even then he had considerable issues in relation to drug addiction and mental health issues. The bond was called up in December 2018, which gave rise to a term of imprisonment of 2 years to be served by way of intensive corrections order from 18 December 2018 to 17 December 2020. That was for the offence of drug supply. This was the ICO in existence at the time he committed the offences before me, which was revoked by the Parole Board after he was arrested on 7 September. The fact that he committed the offences whilst subject to this ICO clearly increases the seriousness of his offending.

121. There are other non-fingerprinted matters on his record, including driving offences, more larceny and shoplifting. He does have a criminal record which disentitles him to leniency, but it is not of such a character which operates as a circumstance of aggravation. Of particular note is that his adult record appears to commence from about 2017/2018, a matter to which I will return soon.

122. I accept that the offender had a supportive upbringing and that his parents remain supportive of him. There is a letter to the Court from his father which indicates that level of support, both currently and in the past, and other material supporting that. The letter from his father also provides some support for other matters contained in reports.

123. He was, as I have already found, sexually abused at school by a priest and a groundskeeper. He did not report it until the report undertaken by Ms Bollinger for the purpose of these proceedings. But I accept, as I said yesterday, on the basis both of the experience of this Court and the published findings of the Royal Commission into the Institutional Responses to Child Sexual Abuse, that events such as this are very likely to have had, and in his case have had, serious adverse impacts on him. At the age of 12 he started to run away from home, spending time with an older girl, which was stopped by his parents. This made him angry, and he started to use cannabis and alcohol and lived in various houses and was couch surfing. His parents continued to look after him, but he was abusive towards them and did not accept their help at the time.

124. It was at this point that he descended into drug use and committed those offences which appear on his juvenile criminal record, including break enter and steal and the assault and AVO offences which, as I understand it, were largely involving his parents. The other offences would appear to have been committed because of the association that he had with those who he was living with on a transient basis at the time.

125. His school behaviour deteriorated at the time of the sexual abuse. He did enrol ultimately in high school, but according to the reports did not complete any of his high school years and was frequently truanting. By his own report he would usually only go to school to sell cannabis or see his friends. He did not complete year 10. He made a modest income by selling drugs but also did some work later on tree planting. The person for whom he worked has provided a positive reference to the Court and there may be some work available in that field on his release from custody.

126. He does not have a significant employment history however, but there is the opportunity for employment with this same employer on his release from custody. He is also a gifted musician who has engaged in gainful employment in the past in that field, and hopefully that will remain available to him too. His drug use in high school escalated from cannabis at age 12 to amphetamines and MDMA at age 14 and 15. His relationship history has involved two previous relationships up to the present immediate former partner. The second of those, according to the reports, involved his being the victim of some physical abuse.

127. The report indicates that during the worst of this second relationship he appeared to have taken either an excess or an overdose of pills and was hospitalised for that. In 2019 he started a new relationship, and they had a child it would appear, after he went into custody. The status of that relationship is unclear and as at present this partner or former partner has refused to bring the child to see him in custody, even if that had been possible during the time of COVID restrictions. He has a desire to have contact with and a relationship with his child, but it may be that the attitude of the child's mother is a source of some potential anxiety in the future. I accept that he started to use methylamphetamine after the violent relationship ended and has been using it daily since about 2018 as a way of coping. His father in the letter to the Court has identified this as the beginning of the slide into serious drug addiction, which I accept to be the case.

128. When he was in custody in 2017/2018 he detoxed from using cannabis. There seems to have been a period where he was able to be relatively free of drugs, but then there was a trauma involving a friend being seriously assaulted, and he also had the trauma of the breakup of his relationship. He started to use methylamphetamine, stopped working and never went back to a drug-free life. By 2018 he was using up to 5 grams of methylamphetamine a day and not sleeping for weeks at a time. He has reported that at the time he committed the offences before me he had not slept for 20 days as a result of his extensive use of methylamphetamine. Through all of this time his father continued to support him and tried to get him away from drug taking and the people with whom he associated in that milieu, but unsuccessfully.

129. The offender has been diagnosed with mental illnesses, including post-traumatic stress disorder and serious depression. It is possible that he may meet a diagnosis of borderline personality disorder, but there is no concrete diagnosis for that. The diagnosed mental illnesses, particularly depression, which I accept he has had since he was 12 have manifested themselves by self-harm by cutting. He is a person who thus has diagnosed psychiatric illnesses, and I accept, as I said yesterday, there is at least an indirect connection between his offending and the offences before me, and to that extent I accept Ms Bollinger's opinion in that regard.

119. He was using drugs as a way of coping with the trauma of his childhood sexual abuse, and it was his drug addiction that was the basis of his commission of all of the offences before me, committed as they were in circumstances where the victims of the offences had stolen half an ounce of methylamphetamine from him, knowing that they could visit him as a known drug dealer in the area. He himself, I accept, was dealing drugs as a way of supplying his extensive habit at the time.

120. As I have said, at the time he committed these offences, he was using drugs extensively, was not sleeping, and was also engaging in self-harm by cutting. He has not in the past taken advantage of assistance provided to him to deal with his substantial drug addiction, but since going into custody he has taken advantage of what has been offered. I accept that he has stopped using drugs and has engaged in various programs to the extent that they have been made available, even on a limited basis, during the time of COVID-19 restrictions. As I have said, he is a gifted and talented musician which appears from some of the references tendered for him.

Involvement in Programs and Jobs in Custody

132. After his arrest he was initially housed at Clarence and while there was employed as a peer tutor teaching inmates to read, write and play music and also performing for inmates and staff. He also involved himself in educational programs that were available including a tertiary preparation program through the University of Southern Queensland and attended Narcotics Anonymous. It would appear, however, that he was assaulted whilst he was there by other inmates. This is evidenced in a letter from his father, but also in the Corrective Services records. The assault led to his having a broken finger, a matter of some concern, because his musical talent is as a gifted guitarist who had earned money from that source legitimately in the past. According to his father he also had a nose broken and an eye injury as a result of this assault.

133. He was transferred to Shortland in August this year and the same access to programs and the like was not available. However, he was employed there as a sweeper in the COVID-19 isolation area until that position was made redundant. The Court is aware that employment in the prison system in that role indicates a degree of trust. His time in custody has been somewhat more onerous than might otherwise be the case, not only as a result of the assault that occurred earlier in the year, but also because of the impacts of COVID-19 restrictions. He has not been able to see his family face to face and was not able to attend his grandfather's funeral recently.

134. He has taken advantage of whatever has been made available to him, and the Court is aware that there are certificates evidencing this which were tendered in the sentenced finalised yesterday, which were meant to be copied to the bundle of exhibits tendered on his behalf today. I recollect the nature of those certificates.

Prospects of Rehabilitation & General and Specific Deterrence

135. He has expressed real remorse and contrition in the letter that he has written to the Court, and I accept has some insight into the impact his offending has. He has in particular expressed real contrition and remorse because these offences before me today indicate a level of violence which is out of character on his record. He has expressed real insight into the fact that for him this is a matter of some shame, and he did not regard himself as a violent person. His prospects of rehabilitation must be guarded given his lengthy history of drug addiction, but they would appear to be entirely dependent on remaining free of prohibited drugs and also having access to treatment to deal with his mental illnesses.

136. He will need assistance for a longer than normal period in the community to do that. Fortunately, he has parents still available to provide him with that support which assists his prospect of rehabilitation. Again, I repeat that the fact of his mental illnesses means that he is a somewhat lesser vehicle for general deterrence than others.

137. But there must be some general deterrence reflected in these sentences. Members of the community, whether they feel they are pursuing a drug debt or something that has been stolen from them or not, are not entitled to take the law into their own hands, and certainly not in a way that puts other members of the community at risk, and detains them, even if for a brief period of time. The sentences for offences brought particularly as kidnapping charges and also the offence involving his use of the motor vehicle in the way that he did, must carry some message of general deterrence, so that it is clear that doing so will inevitably lead to periods of imprisonment.

138. As for specific deterrence, while the connection between his offending and his drug addiction means that there is a need for specific deterrence in an overall sense, nonetheless as I have said, he does not have a criminal history of violence, except for those matters on his juvenile record in 2014 which I accept would appear to have involved ongoing disputes with his parents at the time. Whilst they ought not be minimised, they are in a different category of offending to general offences of violence. He does not have general offences of violence on his criminal record. Everything after that juvenile record are for offences of drug supply and possession and other more minor summary matters.

Sentences: Substantives, Form 1, and Back-up Offences

139. Taking all of that into account, I have concluded that similarly to Mr Westaway, the starting point for him for the detention offences is 3 years. They will each be reduced by 25% to 2 years and 3 months to take into account the pleas of guilty. As I have already said, in my view, they ought to be at least treated as being concurrent with each other.

140. For the s 33B offence, on the basis of the findings I have made, but taking into account the Form 1 offences, some of which are relatively serious, I have concluded that the starting point should be 4 years, reduced by 12 months, to take into account the plea of guilty. That would give rise, if each of these two groups of offences was accumulated on the other, to a total of 5 years and 3 months. That, in my view, is excessive to represent the total criminality of all these three offences, even taking into account the Form 1 offences.

141. In my view the term of imprisonment to represent the totality should be 3 years and 6 months, which I will impose by the imposition of an aggregate sentence of 3 years and 6 months. There will be an aggregate non-parole period of 2 years.

142. There are special circumstances;

1. The fact of some partial accumulation on this group of sentences with an earlier sentence, and;

2. The need for a longer than normal period of supervision in the community on release to deal with mental health and drug addiction issues, and

3. The circumstances of his custody to date being somewhat more onerous during COVID-19 restrictions.

143. The issue then becomes when to commence this sentence. On 2 December, yesterday, Mr Tafra was sentenced to a term of imprisonment of 2 years and 3 months with a non-parole period of 18 months, which commenced on 7 October 2020 for the offence of ongoing supply of methylamphetamine. That starting date itself represented a partial accumulation with the term of imprisonment imposed by the Parole Board following the revocation of an ICO for drug supply. That non-parole period is due to expire on 7 April 2022.

144. The commencement date of the sentence which I am about to impose must take into account the total criminality overall of all of the offences for which he will serve periods of imprisonment. The latest date at which that term should commence is 7 April 2022. If I were to commence this sentence on 7 April 2022 then he would spend 3 and a half years in custody with 18 months on parole overall, which in my view is somewhat excessive to represent totality. I have concluded that a consideration of totality requires an overall sentence of 4 years, with an overall non-parole period of 2 years and 6 months. To implement that, I will be commencing this new sentence from 7 April 2021.

Formal Sentence Orders (Sequences 3, 7, 14, 15, 17, 19, 22)

1. For each of the three offences, sequences 14, 15 and 19, he is convicted.

2. He is sentenced pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 to an aggregate sentence comprising a non-parole period of 2 years commencing 7 April 2021 and expiring 6 April 2023, with parole thereafter of 18 months commencing 7 April 2023 and expiring 6 October 2024, giving rise to an overall term of 3 years and 6 months commencing 7 April 2021 and expiring 6 October 2024.

1. The indicative sentences are as follows:

2. Sequences 14: 2 years and 3 months.

3. Sequence 15: 2 years and 3 months.

4. Sequence 19: 3 years.

5. (3)   Sequences 17 and 22 taken into account as Form 1 offences.

6. (4)   Backup offences: Sequences 3 and 7; withdrawn and dismissed.

145. It is intended that this will have the effect, and hopefully it does, that for all of these offences before me today, and for the ongoing drug supply offence sentenced yesterday, there will be an overall non‑parole period commencing on 7 October 2020, due to expire on 6 April 2023, therefore 2 and a half years, with parole thereafter of 18 months. I believe that the dates that I have set achieves that intention.

Sentences: Related Offences

Sequences 1 & 16

146. Sequences 1 and 16, the drive with cancelled licence offences - the only appropriate outcome for these two offences, which I repeat should have been left in the Local Court where they belong, which it needs to be repeated involve his driving the car in the manner that he did along the New England Highway with a cancelled licence, and after the offences driving his car with a cancelled licence to the motel where he was arrested.

147. These two matters do not belong in the District Court, but I am forced to deal with them. I ought not be. They should have stayed where the belonged. Nonetheless, the only appropriate outcome is by way of the imposition of an order pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The maximum penalty, and I am grateful to defence counsel, being the only one who has provided me with any detail whatsoever in relation to these penalties, the maximum penalty for them would be 6 months imprisonment with an automatic disqualification of 6 months in each case.

148. This man will be in custody for some time. There is the potential that he will remain in custody for even longer for other matters not yet determined. No other penalty is appropriate in the circumstances. I will impose the minimum disqualifications for each. In any event they will not be activated until he is released from custody.

Formal Sentence Orders (Sequences 1 & 16)

1. For the related offences, sequences 1 and 16, he is convicted.

2. Pursuant to s 10A, no further penalty.

3. In each case disqualified for the minimum period of 6 months.

Sequence 4

149. For sequence 4, being the drive manner dangerous offence, there is even more reason why this offence should not have been brought to this Court to be dealt with separately, and at best dealt within the Local Court. It is a factor which I took into account in determining the objective criminality of the substantive offence. It is a matter which ought to be left in the Local Court and ought not be taking time of both the judiciary, administrative staff and registry staff dealing with an outcome for this offence. Again, I have been assisted by being provided with the maximum penalty by defence counsel only, being 9 months' imprisonment with an automatic disqualification of 3 years, but a minimum disqualification of 12 months.

150. There is a traffic record tendered. It is not a good traffic record, but they are largely offences of driving without a licence, driving with drugs present in oral fluid, not complying with conditions of a provisional licence, speeding and the like. There is nothing on his record as serious as a dangerous driving charge. However, the maximum penalty is 9 months. Nothing is practically open to the Court as an alternative to custody. It may be that if sentenced alone, that would have been the inevitable outcome. But in my view, it is a matter which ought be dealt with again by s 10A with no other penalty.

151. As to the length of disqualification, the minimum disqualification is 12 months. The automatic disqualification is 3 years. Whilst I had earlier indicated that I would impose the automatic disqualification, in due course when this offender is released from custody, he will ultimately need a licence to drive around, to undertake employment.

152. It is not an offence where he perhaps ought to get the benefit of the minimum disqualification but nor is it necessary for the full automatic disqualification to be imposed, particularly given that it will not operate until after he is released from custody. I will disqualify him for a period of 18 months for that offence, and the disqualifications will be concurrent with each other.

Formal Sentence Orders for Sequence 4

1. For sequence 4, the offender is convicted.

2. Pursuant to s 10A, no further penalty.

3. The offender is disqualified for a period of 18 months.

1. NB: Each of the disqualifications to be concurrent with each other.

2. NB: The disqualifications will not commence until he is released from custody.

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Decision last updated: 30 November 2022