R v Vickers

[2019] NSWDC 735

District Court

New South Wales

Medium Neutral Citation:

R v Vickers [2019] NSWDC 735

Hearing dates:

5 July 2019, 10 July 2019

Date of orders:

20 August 2019

Decision date:

20 August 2019

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

Sentenced to a total aggregate sentence of seven years imprisonment to date from 19 May 2018 and expire on 18 May 2025 and a non-parole period of four years to date from 19 May 2018 and expire on 18 May 2022.

 

The earliest date for eligibility for parole is 18 May 2022.

 

In respect of the offence of possess ammunition, H60772226 (sequence 3), pursuant to s 10A, the offence is proven with no further penalty.

 

In respect of the offence of intentionally damage or destroy property, H66772226 (sequence 16), a Community Corrections Order for a period of 12 months with the standard conditions.

 In respect of the offence of possess prohibited weapon, H68469955 (sequence 5), A Community Corrections Order for 12 months also with the standard conditions.
Confiscation order made by consent.

Catchwords:

Criminal-Sentence-publish false and misleading material to obtain financial advantage-do act with intent to pervert the course of justice-identity theft-supply prohibited drug-deal with proceeds of crime-possess shortened firearm

Legislation Cited:

Crimes (Sentencing Procedure) Act, 1999
Crimes Act, 1900
Drugs Misuse and Trafficking Act, 1985
Firearms Act, 1996
Weapons Prohibition Act, 1998

Cases Cited:

Bugmy v R [2013] HCA 37
Cahyadi v R [2007[ NSWCCA 1
DPP Commonwealth v De La Rosa (2010) NSWCCA 194
R v Lachlan [2015] NSWCCA 178

Category:

Sentence

Parties:

Regina (Crown)
Damian Ross VICKERS (the Offender)

Representation:

Counsel:
Ms Marina Kiriakos for the Offender

  Solicitors:
Ms N Block for the Crown

File Number(s):

2017/199174, 2017/3181133, 2018/35474, 2018/37250

Publication restriction:

Nil

SENTENCE

1. Damian Vickers born xx February 1977, 42 years of age, appears for sentence in relation to 14 offences as follows:

2. H65514633, (sequence 9, 10, 11, 12), H127196701, (sequence 7), five offences of publish false misleading material to obtain financial advantage or cause disadvantage (s 192G(b) Crimes Act) (date of offences 10 August 2014, 26 May 2015, 11 May 2016, 11 June 2016, 21 October 2017). The maximum prescribed penalty in respect of each of those offences is 5 years imprisonment.

3. H65514663, (sequence 4), do act with intent to pervert the course of justice, an offence pursuant to s 319, Crimes Act (date of offence 19 July 2016). The maximum prescribed penalty for that offence is 14 years imprisonment.

4. H68469955, (sequence 2), supply prohibited drug (5.45 gram of methyl amphetamine), an offence pursuant to s 25(1), Drugs Misuse and Trafficking Act (date of offence 22 December 2017). The maximum prescribed penalty for that offence is 15 years imprisonment.

5. H68469955, (sequence 3), knowingly deal with proceeds of crime ($6,062.10) an offence pursuant of s 193B(2), Crimes Act (date of offence 22 December 2017). The maximum prescribed penalty of that offence is 15 years imprisonment.

6. Ex officio count, possess shortened firearm (not pistol) without authority, an offence pursuant to s 62(1)(b), Firearms Act (date of offence 25 January 2018). The maximum prescribed penalty for that offence is 14 years imprisonment.

Section 166 certificate offences

7. H127196701, (sequence 1), drive whilst disqualified (date of offence 21 October 2017), an offence pursuant to s 54(1)(a), Road Transport Act. The maximum prescribed penalty 2 years imprisonment and or 50 penalty units, disqualification for 2 years.

8. H66772226, (sequence 3), possess ammunition (date of offence 25 January 2018), an offence pursuant to s 65(3), of Firearms Act. The maximum prescribed penalty if 50 penalty units.

9. H66772226, (sequence 9), drive whilst disqualified (date of offence 25 January 2018), an offence pursuant to s 54(1)(a) , Roads Transport Act. The maximum prescribed penalty is 12 months imprisonment. The automatic disqualification is 12 months with a minimum disqualification of 6 months.

10. H66772226, sequence 16, intentionally or recklessly destroy or damage property (date of offence 25 January 2018), an offence pursuant to s 195(1)(a), Crimes Act. The maximum prescribed penalty if dealt with summarily is a jurisdictional limit of 2 years or a 20 penalty unit fine.

11. H68469955, (sequence 5), possess prohibited weapon (extendable baton) (date of offence 22 December 2017), an offence pursuant to s 7(1) Weapons Prohibition Act. The maximum prescribed penalty for that offence and dealt with summarily is a jurisdictional limit of 2 years imprisonment and or a 100 penalty unit fine.

12. There are no prescribed standard non-parole periods in respect of any of the offences.

13. The offender pleaded guilty to all offences at the Local Court with the exception of the offence of possess shortened firearm (ex officio count). Accordingly, he is entitled to a discount on sentence of 25%.

14. In relation to the ex officio count of possess shortened firearm, the offended pleaded guilty at the Gosford District Court on 11 February 2019 at the time of trial. I propose to allow a discount on sentence in respect of that matter of 10%.

15. The offender has been in continuous custody since 1 February 2018. He also spent 11 additional days in custody prior to 1 February 2018. Whilst in custody he has served an 8 month non-parole period, being an aggregate sentence imposed on 20 February 2019 at the Gosford Local Court. I am satisfied there would have been some concurrency between that sentence and the current sentences in circumstances where that offending did occur within the same time period.

16. Having regard to the question of totality, I propose to back date the sentence imposed today to 19 May 2018. This commencement date also takes into account 11 days in custody prior to 1 February 2018.

The Agreed Facts

17. The offending relates to 4 episodes of criminal conduct that can be summarised as follows:

1. Between August 2014 and July 2016 the offender committed 4 offences of publish false misleading material to obtain financial advantage or cause disadvantage, (in relation to a use of a false licence) and one offence of do act with intent to pervert the course of justice. The offender was arrested and charged on 2 July 2017 after the victim, whose identity had been stolen, was contacted by State Debt Recovery Office.

2. On 21 October 2017 the offender again used the same false licence.

3. On 22 December 2017 the offender was involved in a motorcycle accident. After the accident police searched his backpack and found 5.54 grams of methyl amphetamine, $6,062 in cash and an extendable baton.

4. On 25 January 2018 the offender had a heated argument with a female at McDonalds. Police were called and the following charges resulted; one offence of damage property (relating to car tyres), an ex officio count of possess shortened firearm (relating to a weapon found in a ute), one offence of drive whilst disqualified and one offence of possess ammunition (relating to 7 red live shotgun rounds).

18. The Crown helpfully provided a more detailed summary of the lengthy agreed facts that were tendered on sentence. I propose to include that summary in my reasons in circumstances where I consider it is necessary to properly understand the overall criminality. I propose to supplement that summary with some additional information taken from the original agreed facts.

Summary of offending

19. The offender’s licence was disqualified between 1999 and 2021. The offending between August 2014 and 2017 with respect to publishing false material relates to the offender’s use of a licence in the name of Lane Stubberfield.

The circumstances in which the offender obtained a licence in the name of Lane Stubberfield

20. The offender went to the same high school at Lane Stubberfield. Lane Stubberfield went to a party in Wyoming between 2006 and 2008 and his wallet went missing. His birth certificate and Mastercard were in his wallet.

21. At some stage thereafter the offender came into possession of the birth certificate and Mastercard of Lane Stubberfield. The offender made three licence applications in the name of Lane Stubberfield (using his birth certificate and Mastercard). On 3 April 2007 he obtained a learners licence; on 9 December 2009 he obtained further learners permit; on 11 November 2014 he obtained a learner’s motorcycle licence. After these applications, the offender continued to renew the licences both for the car and motorcycle.

H6514663, (sequence 9), make false or misleading statement with intention of obtaining a financial advantage

22. On 10 August 2014 police observed the offender driving a vehicle which crossed unbroken lines and straddle multiple lanes in a roundabout. The offender was stopped and questioned by police about his conduct. He identified himself at Lane Stubberfield.

23. The offender stated that the vehicle he was driving was registered under his name and his driver’s licence was at a Toowoon Bay caravan park. Police questioned the offender in relation to a number of inconsistencies, including that the car was registered in the name of Rebecca Bowan. Further, that a Lane Stubberfield was listed as living at Narara (and not at an address in Western Australia which was the address provided by the offender). The offender’s appearance did not match information about Lane Stubberfield.

24. The offender continued to insist that he was, in fact, Lane Stubberfield. Ultimately, the offender return to the caravan park and produced a licence in the name of Lane Stubberfield. An infringement and a penalty notice of $242 was issued to the offender in the name of Lane Stubberfield.

H65514663, (sequence 11), make false or misleading statement with the intention of obtaining a financial advantage

25. On 26 May 2015 the offender was stopped by police in Warners Bay. He was riding a motorbike at the time. He presented a driver’s licence in the name of Lane Stubberfield to police. The offender, when advised by police that the motorcycle was out of registration and owned by a Damian Vickers stated, “That’s who I bought if off years ago.”

26. The offender continued to insist that the cycle should not be unregistered and that he had purchased the motorcycle from Damian Vickers. An infringement notice with a penalty of $623 was issued to the offender in the name of Lane Stubberfield.

H65514663, (sequence 10), make false or misleading statement with the intention of obtaining a financial advantage

27. On 11 May 2016 police were conducting a random breath test and stopped the offender. The offender produced a driver’s licence in the name of Lane Stubberfield. The offender returned a negative result for alcohol but a positive drug test for methyl amphetamine. At the time the offender was riding a motorbike. Police confronted the offender in relation to a number of discrepancies including that police checks revealed that the number plate on the motorbike belonged to a different motorbike, that the correct registration of the bike was registered to Damian Vickers and not Lane Stubberfield and that the licence was not the appropriate licence to be driving that motor vehicle. The offender responded by stating that he had purchased the motorbike from Damian Vickers and was paying it off before transferring the registration. On 19 May 2016 Lane Stubberfield was mailed 6 infringement notices, each of which carried a financial penalty.

28. On 27 May 2016 a charge pursuant to s 111(1)(a), Road Transport Act against Lane Stubberfield was laid. The court attendance notice was mailed to the offender and it was listed at Gosford Local Court on 19 July 2016. This offence relates to the offence of do act with intent to pervert the course of justice which I will summarise in due course.

H65514663, (sequence 12), make false or misleading statement with the intention of obtaining a financial advantage

29. On 11 June 2016 police stopped the offender in Gosford. The offender advised police that his name was Lane Stubberfield and that he had consumed some alcohol. The offender was cautioned, following which he provided police with a driver’s licence and stated that the car he was driving was not registered to him because he was just test driving it. An infringement notice with a penalty of $106 was issued to the offender in the name Lane Stubberfield in relation to his failure to carry his driver’s licence.

H65514663, (sequence 4), do act with intent to pervert the course of justice

30. This offence relates to H65514663, (sequence 10) (previously summarised).

31. The offender attended Gosford Local Court unrepresented on 19 July 2016 and presented himself to the court as Lane Stubberfield. The offender entered a plea of guilty to the offence following which “he” was sentenced to a $400 fine and 3 months driver licence disqualification. The conviction, financial penalty and disqualification were recorded against the name of Lane Stubberfield.

Apprehension of the offender

32. In April 2017, Lane Stubberfield was sent a letter by the State Debt Recovery Office informing him that he had $5,615 of unpaid fines outstanding. Lane Stubberfield informed the State Debt Recovery Office that he had been the victim of identity theft. The State Debt Recovery Office had sent to Lane Stubberfield a notice of restriction of business for non-payment of fines and refused to conduct any motor vehicle related transactions in relation to him.

33. On 2 July 2017 police attended the offender’s premises and asked the offender about Mr Stubberfield’s birth certificate and any other documents in Mr Stubberfield’s name in the offender’s possession. The offender responded “I don’t know what you’re talking about, I never had a birth certificate in that name.” The offender was advised in relation to the licence he had been using, “If you do have it, it will look better for you to hand it in.” The offender responded, “I’m telling you I don’t have it anymore.”

34. Police searched the offender’s vehicle with the consent of his partner locating two Western Australian driver’s licences, a Western Australian boat licence and a Westpac Mastercard in the name of Lane Stubberfield. On 2 July 2017 the offender was charge in relation to these offences. On 4 July 2017 the offender was granted conditional bail.

H127196701, (sequence 1) (sequence 7) drive whilst disqualified and make false or misleading statement with the intention of obtaining a financial advantage

35. On 21 October 2017 police were travelling on Racecourse Road, Gosford and stopped the offender for the purpose of a random breath test. The offender produced a driver’s licence in the name of Lane Stubberfield. Police checks indicated that the offender’s licence was disqualified and that he may be using Lane Stubberfield’s identity as an alias. As a result the offender was placed under arrest.

H68469955, (sequence 2)(sequence 3)(sequence 5), supply prohibited drug, knowingly deal with proceeds of crime, possess or use a prohibited weapon without permit

36. On 22 December 2017 the offender was riding his motorcycle when he had a collision at the intersection of Stockton Street and Goodwins Road, Morisset. When police arrived on the scene they found the offender in significant pain seated on the roadway. He had been wearing a backpack on his back prior to the collision. Due to the offender’s injury, which included a broken leg and significant pain, he was taken to John Hunter Hospital. Police subsequently opened the backpack that the offender had been wearing at the time of the collision. Inside the backpack the police located the following items: a set of scales, a used ice pipe, 5.45 grams of methyl amphetamine (5 grams in one clear resealable bag and .45 grams in a freezer bag), $6062.10 in cash and a black extendable baton.

37. On 29 December 2017 police attended the offender’s residential address. He was asked about the money located in the backpack. He indicated to the effect that the money had been earned by cash jobs and that he was using the money to buy Christmas presents. He was asked by police about the drugs. He indicated that a “mate” had given him “Ice” for safe keeping. When asked about the ice pipe he shrugged his shoulders and did state that he had consumed an unknown quantity of ice the day prior.

H66772226, (sequence 3)(sequence 9)(sequence 16)(ex officio count), possess ammunition without licence, drive motor vehicle whilst disqualified, intentionally or recklessly destroy property, possess shorten firearm (not pistol) without authority

38. Shortly aft 10pm on 25 January 2018 a male and female were witnessed having a heated verbal altercation in the carpark of Tuggerah McDonalds. After seeing the male slash the female’s tyres, one of the witnesses followed the male’s ute calling police and providing the registration. He ceased following once the ute got to a dead-end street.

39. When police later located the ute in the dead-end street it had different front and rear licence plates. They observed through the window a firearm inside the vehicle. That firearm was a shortened 12 gauge Harrington and Richardson model 1908 single barrel shotgun. It was forensically examined, test fired and found to be in working order. Portions of the barrel and butt stock had been shortened with the weapon having an overall length of approximately 527 millimetre.

40. A large number of personal items were discovered in the ute which were identified as belonging to the offender. A series of receipts led to CCTV footage showing the offender in possession of the ute and driving it whilst disqualified over several proceeding days. The offender’s DNA was also located through the ute and was one of two profiles on the handle of the gun.

41. When arrested the offender denied driving the ute on 25 January 2018 but admitted general possession of it, stating the owner was in Western Australia and had given him the keys. He said, “the shotty just got thrown at me by a crackhead who said, “Check this out.”

42. The offender is deemed to be in possession of the firearm under the extended definition in the Firearms Act. He was not authorised by any permit to possess the shortened firearm. Seven red live shotgun rounds were found during the search of the vehicle.

Assessment of objective seriousness

(1)   Publish false and misleading material to obtain financial advantage or cause disadvantage (five counts)

43. In relation to this offending, and determining the objective seriousness, I have taken into account the following factors:

1. There was some planning involved with respect to each offence as the offender organised to have a license issued in a false name. Each offence involves theft of an individual’s identity.

2. The offender was motivated by a desire not to incur traffic penalties and avoid losing his own licence.

3. Whilst the monetary penalty on each occasion was modest, the offender also avoided losing his licence.

44. I regard each offence as just below the middle of the range of objective seriousness.

(2)   Do act with intend to pervert the course of justice

45. In determining the objective seriousness of this offence, I have taken into account the following factors:

1. The offender appeared before a court representing himself as Lane Stubberfield.

2. The motive of the offender was to avoid incurring a monetary penalty for a driving offence and the associated licence disqualification, that is, he sought to escape a conviction for a criminal offence.

46. Having regard to those factors, I regard this offence as in the middle of the range for objective seriousness.

47. In respect of the offence of do act with intent to pervert the course of justice, both general deterrence and specific deterrence are important considerations on sentence. In particular, as a consequence of this offending, the victim would have acquired a criminal record and would have suffered criminal punishment for an offence which the person did not commit. In such circumstances, this is a serious example of the offence of perverting the course of justice.

(3)   The offence of supplying prohibited drug

48. In determining the objective seriousness of this offence, I have taken into account the following factors:

1. The quantity of the prohibited drug located, namely 4.5 grams recognising that the trafficable quantity is 3 grams, the indictable quantity is 5 grams and the commercial quantity is 250 grams.

2. There is an absence of evidence to establish that the offender is significantly involved in drug supply.

49. In such circumstances, I regard the offence as being towards the lowest end of objective seriousness.

(4)   The offence of knowingly deal in proceeds of crime

50. I regard this offence as towards the lower end of the range of objective seriousness having regard to the amount of money located recognising that the amount of proceeds dealt with will ordinarily increase the criminality.

51. The offender gave evidence that the money was the proceeds of drug supply. At the time of the offending he was a user of methyl amphetamine.

(5)   Possess shortened firearm

52. In assessing the objective seriousness of this offence, I have taken into account the following factors:

1. The firearm was located unsecured in a motor vehicle.

2. There is no evidence that the firearm was loaded.

3. Whilst ammunition was also found with the firearm, there is no evidence that it was capable of being used in that particular firearm.

4. The firearm was test fired and found to be in working order.

53. Having regard to those factors, I assess the objective seriousness falling below the middle of the range.

54. In sentencing for firearm offences, general deterrence has an important role to play. Members of the community must well understand that the courts will impose very significant punishment upon individuals who illegally possess firearms. The courts are concerned to ensure that the penalties imposed deter members of the community from illegal possession of firearms. This, in turn, promotes protection and safety of the community.

55. Specifically in relation to shortened firearms, they have no legitimate purpose and are particularly dangerous because of their capacity for concealment making them suited for serious criminal activity (see R v Lachlan [2015] NSWCCA 178).

56. In relation to the offences to be dealt with on the s 166 certificate, I regard each of the offences of drive whilst disqualified as below the middle of the range. I regard the offence of possess ammunition at the lowest range of objective seriousness having regard to the quantity of ammunition found. I regard the offence of destroying or damaging property at the lowest range of objective seriousness having regard to the nature and extent of the damage to the tyres. I note that there is no evidence before the Court in relation to the monetary value of the damage. In relation to the offence of possess prohibited weapon, having regard to the type of weapon, namely, an extendable baton, I regard the objective seriousness of this offence as just below the mid-range of objective seriousness.

Aggravating features

57. The Crown relied upon two aggravating features, firstly, that the offender has a record of previous convictions. Whilst I do not propose to rely upon that factor as an aggravating feature, it certainly disentitles him to any leniency on sentence.

58. The second aggravating feature relied upon by the Crown was the offence was committed whilst the offender was on conditional liberty. At the time of the commission of offences H127196701, H66772226 and H68469955, the offender was the subject of s 9 good behaviour bonds that had been imposed from 25 August 2017. Further, at the time of the offender’s commission of the offence H127196701, the offender was on bail in relation to a previous offence.

59. Similarly, at the time of the commission of the offences H68469955 and H66772226, the offender was also on bail. I am satisfied that aggravating feature is established.

Subjective Circumstances

60. The offender is now 42 years of age.

61. He has a criminal history commencing in 1991 when he was dealt with for offensive language and remain on inclosed lands. Each of those offences was dismissed.

62. In 2001, he was dealt with for offences of assault police, destroy property and use offensive language.

63. In 2004, he was dealt with for an offence of drive whilst disqualified and sentenced to home detention for six months.

64. In 2005, he was dealt with for a further offence of drive whilst disqualified and a suspended sentence was imposed for nine months.

65. In 2017, he was dealt with for an offence of drive whilst disqualified and received a s 9 bond, state false name, he was fined and low range PCA was also fined. He was called up in respect of all those matters and an aggregate sentence of 16 months’ imprisonment with a non-parole period of eight months was imposed.

66. On 20 February 2019, he was also dealt with multiple offences of drive whilst disqualified; receive property; goods in custody and drive under the influence of drugs. The sentence for those offences also formed part of the aggregate sentence of 16 months with a non-parole period of eight months.

67. The offender also has a criminal history in Western Australia for driving offences.

68. As I indicated earlier, having regard to the offender’s criminal history, I am satisfied it disentitles him to any leniency on sentence. Further, I am also satisfied that with respect to the driving offences, specific deterrence is an important consideration on sentence.

69. The following material was tendered on behalf of the offender during the sentence proceedings:

• Exhibit 1, a letter under the hand of Caleb Vickers undated;

• Exhibit 2, a letter under the hand of Garry Hutchin dated 11 June 2019;

• Exhibit 3, a default notice in respect of the offender’s mortgage 29 May 2019;

• Exhibit 4, the report under the hand of Dr Richard Furst dated 11 June 2019;

• Exhibit 5, Justice Health medical records;

• Exhibit 6, transcript of inquiry into the death of Lynette Vickers;

• Exhibit 7, sleep study conducted in relation to the offender;

• Exhibit 8, certificates of courses completed by the offender; and

• Exhibit 9, payment documents.

70. The offender’s background is outlined in the report of Dr Furst and the Sentencing Assessment Report (exhibit A21). Dr Furst assessed the offender for one hour on 9 May 2019.

71. The offender reported that his mother was a heroin addict and was also supplying heroin. He said he was weaned off heroin after birth. He also reported being subject to childhood physical abuse from one of his mother’s partners.

72. Dr Furst noted as follows:

“There was a history of severe childhood trauma. Mr Vickers’ father, Ross Lynch killing his mother, Lynette Vickers in front of Damian when he was only six years of age at Tweed Heads in 1983. He was subsequently raised by his maternal uncle and maternal aunt with the assistance of his grandmother. He did not speak to his father after those events, however, his father apparently tried to contact him when he was teenager. His father is now deceased, dying in Adelaide several years ago. Mr Vickers’ emotional problems in relation to the murder of his mother were compounded by his family telling him that his uncle was responsible for the murder of his mother rather than his biological father. Furthermore, he was also erroneously told that his uncle was in fact his father in an apparent effort to protect him from the enormity of the family trauma”.

73. I note that evidence was before the Court in relation to an inquest held into the death of the offender’s mother (exhibit 6).

74. The offender reported to Dr Furst that approximately two and a half years ago he found out the truth in relation to his mother. As a consequence of that discovery, he began drinking heavily and using ice and cocaine. He stopped going to work and began neglecting his family.

75. He was a bricklayer by trade and had worked in that industry for 18 years. He reported that since being in custody he has been abstinent from drugs for approximately 18 months.

76. At the time of his arrest, he had been in a relationship with his partner for 11 years. They have a six year old daughter together. The offender has three other children from previous relationships, a 20 year old son, a 14 year old daughter and an eight year old son. The offender moved to New South Wales five years ago so he could see two of his other children. His partner teaches at Newcastle Grammar School.

77. He remains in a relationship with his partner who he describes as struggling as a consequence of the financial stress caused by his incarceration. A default notice with respect to his mortgage has recently been received (see exhibit 3).

Medical history

78. The offender reported being involved in a serious motor bike accident on 22 December 2017. He suffered serious injuries to his shoulder, foot and ribs. He reported he was under the influence of ice at the time. He received a custodial sentence for those driving offences. He is not currently taking any medication. He has a history of obstructive sleep apnoea.

The offender’s account of the offending

79. The offender denied to Dr Furst being in custody of the vehicle in which the firearm was found and denied any knowledge of the firearm. The offender clarified in evidence during the sentence proceedings that he does, in fact, accept he had knowledge of the gun.

80. In relation to the offence of doing an act with intent to pervert the course of justice, the offender reported that he had purchased the identity documents between 2006 and 2008 and used them to obtain a driver’s licence under a false name. He did this because he needed a licence for his employment. He said he pretended to be “Lane” in court stating, “I did not want to get Lane into trouble”.

81. In my view, this aspect of the offender’s account of the offending demonstrates his complete lack of appreciation of the gravity of the offending which involved deception within the criminal justice system.

82. The offender described himself as “in a drug haze” at the time of the offences. I note at this stage that self-induced intoxication is not to be take into account as a mitigating factor (see s 21A(5AA) Crimes (Sentencing Procedure) Act).

Mental state examination

83. Dr Furst was of the opinion that the offender appeared to be of average intelligence. He was not significantly depressed or anxious. There were no indications of psychosis and he was not suicidal. The offender reported to Dr Furst that he regretted his action.

84. Dr Furst was of the opinion that the offender was suffering from substance use disorder (in remission) and adjustment disorder with mixed anxiety and depression. Dr Furst was further of the opinion that the offender’s traumatic childhood likely led to emotional instability and poor coping skills. Further, when the offender found out the truth about his father in 2017, he developed an adjustment disorder and turned to alcohol and drug use “in an effort to block out negative emotions”.

85. To this extent, Dr Furst was of the opinion that the offender’s mental health issues had caused his drug and alcohol problems which, in turn, contributed to his offending.

86. Having regard to the opinion of Dr Furst, I am satisfied that at the time of offending, from 2017 onwards, the offender was suffering from mental health issues and accordingly, it is appropriate that there be some moderation of the otherwise appropriate sentence (see DPP Commonwealth v De La Rosa (2010) NSWCCA 194 at 177).

87. Further, having regard to the evidence in relation to the childhood of the offender, I am satisfied that he has suffered significant trauma and accordingly, a further reduction in his moral culpability is warranted for the reasons set out in Bugmy v R [2013] HCA 37 at 42-44. It is unsurprising in my view that his childhood trauma ultimately led to substance use issues.

88. Dr Furst recommended that the offender remain under the care of Justice Health with respect to his physical health needs and that he attend the EQUIP Foundation and Addiction courses to address addiction issues and focus on relapse prevention. He also considered the offender would benefit from a mental health care plan to address his childhood trauma issues and other mental health issues.

89. The offender gave evidence during the sentence proceedings. He said he still has the support of his partner Rebecca and sees his seven year old daughter most weekends. Upon release, he is hopeful of returning to work as a bricklayer. At the time of the offending said he had a daily drug habit. He had again been using drugs about 18 months before his incarceration after receiving the information from a family member about his mother. He has been abstinent from drugs whilst in custody.

90. He has completed numerous courses with respect to addiction (see Exhibit 8). He said he was embarrassed with respect to his offending behaviour and further, “it’s not what I’m like”. In relation to rectifying the loss, he said he had tried to pay some fines (see Exhibit 9).

Other material tendered on behalf of the offender

91. Exhibit 1 was a letter from the offender’s son. He described the offender as a man of “immense pride and dignity” who values hard work and family.

92. Exhibit 2 was a letter from a work colleague, Gary Hutchin who had known the offender for 15 years. He indicated he would employ the offender upon his release from custody. He regarded the offending as out of character for the person he knew.

93. Exhibit 5 was Justice Health records indicating that the offender has ongoing health difficulties as a consequence of his motorcycle accident. There was no evidence before the Court that the medical conditions of the offender cannot be adequately treated whilst he is in custody.

Prospect of rehabilitation

94. The Community Corrections officer assessed the offender as a medium to low risk of reoffending. Dr Furst was of the opinion that the offender had good prospects of rehabilitation particularly if the offender adhered to the treatment plan formulated by Dr Furst.

95. In my view, I am satisfied the offender has moderate prospects of rehabilitation in circumstances where the offender has begun to address his substance use issues in custody (see Exhibit 8). He also has a long history of employment, he has good family support and is willing to address his underlying issues that have previously precipitated criminal conduct (specifically, drug use and negative associates). I also find at this stage he is unlikely to reoffend.

Remorse

96. Whilst the offender has acknowledged in evidence his guilt in relation to the offending, I am not satisfied that he is genuinely remorseful for his conduct. I do not accept that he has acknowledged the serious and grave criminality and the consequences of his offending behaviour, particularly in relation to those offences involving identity theft and doing an act with intent to pervert the course of justice.

Special Circumstances

97. It was submitted on behalf of the offender that the Court would find special circumstances and vary the statutory ratio between the non-parole period and the parole period in circumstances where this will be the offender’s first lengthy time in custody and there will be some partial accumulation upon the sentence currently being served and also, he will need increased supervision in order to address his substance use issues to remain abstinent from drugs.

98. I am satisfied that special circumstances are established and I do propose to vary the statutory ratio between the non-parole period and the parole period.

Totality

99. In circumstances where I am dealing with the offender for more than one offence, I am required to consider the question of totality. The relevant sentencing principle is to consider whether the sentence for one offence can comprehend and reflect the criminality of the other. If so, the sentences should be concurrent but if not, there should be some accumulation (see Cahyadi v R [2007[ NSWCCA 1).

100. I am satisfied that some partial accumulation is necessary having regard to the separate episodes of criminality. Also, in circumstances where the offences of do act with intent to pervert the course of justice and possess shortened firearms disclose very serious objective criminality, wholly concurrent sentences would not reflect the total criminality.

101. I propose to make the drive whilst disqualified offences on the s 166 certificate wholly concurrent in circumstances where I consider the criminality has already been reflected in the sentences the offender has served whilst he has been in custody.

102. I propose to impose an aggregate sentence pursuant to s 53A(2), Crimes (Sentencing Procedure) Act.

103. In determining the appropriate indicative sentences, I have taken into account s 3A, Crimes (Sentencing Procedure) Act and the purposes of sentencing.

104. In respect of those matters for which I indicate a sentence, I do consider, having considered all possible alternatives, that no sentence other than imprisonment is appropriate. I have taken into account the maximum prescribed penalty in respect of each offence. I have also taken into account the oral and written submissions of the Crown and the oral submissions made on behalf of the offender.

105. Pursuant to s 53A(2)(b), Crimes (Sentencing Procedure) Act the indicative sentences are as follows:

106. H65514663 (sequence 4): Do act with intent to pervert the course of justice, the starting terms of that sentence was four years, which I have discounted by 25% for the plea of guilty, leaving a total term of three years.

107. H6551463 sequences (9, 10, 11 and 12): Publish false misleading material to obtain financial advantage or cause disadvantage, the starting term for each of those sentences was 16 months, which I have discounted by 25% for the plea of guilty, leaving a total term of one year.

108. H127196701 (sequence 7): an offence of Publish false misleading material to obtain financial advantage or cause disadvantage, the starting term of that sentence was two years, discounted by 25% for the plea of guilty, leaving a total term of one year and six months.

109. Ex officio count of possess shortened firearm, a starting term of two years and six months, discounted by 10% for the plea of guilty, leaving a total term of two years and four months.

110. H68469955 (sequence 2): Supply prohibited drug (5.45 grams methyl amphetamine) a starting term of 16 months, discounted by 25% for the plea of guilty, leaving a total term of 12 months.

111. H68469955 (sequence 3): Knowingly deal with proceeds of crime ($6,062) a starting term of eight months, discounted by 25% for the plea of guilty, leaving a total term of six months.

112. In relation to the matters on the s 166 certificate:

113. H127196701 (sequence 1): Drive whilst disqualified, a starting term of one year and four months, discounted by 25% for the plea of guilty, leaving a total term of one year.

114. H66772226 (sequence 9): Drive whilst disqualified, a starting term of 12 months, discounted by 25% for the plea of guilty, leaving a total term of nine months.

115. In relation to the remaining matters on the 166 certificate, I do not propose to impose terms of imprisonment and I will deal with those matters separately.

116. Mr Vickers in relation to each of those offences, you are convicted.

117. I sentence you to a total aggregate sentence of seven years imprisonment to date from 19 May 2018 and expire on 18 May 2025.

118. I impose a non-parole period of four years to date from 19 May 2018 and expire on 18 May 2022.

119. The earliest date upon which you will be eligible for parole is 18 May 2022.

120. In respect of the offence of possess ammunition, H60772226 (sequence 3): pursuant to s 10A, I find the offence proved but impose no further penalty.

121. In respect of the offence of intentionally damage or destroy property, H66772226 (sequence 16), I impose a Community Corrections Order for a period of 12 months.

122. The standard conditions of the Order apply. That is, you must not commit any offences and you must appear before the Court if called upon to do so.

99. In respect of the offence of possess prohibited weapon, H68469955 (sequence 5), I impose a Community Corrections Order for 12 months also with the standard conditions.

100. Can you just indicate whether the Confiscation Order was by consent?

101. MATE: Yes your Honour it was signed on the last occasion.

102. HER HONOUR: Thank you.

103. Pursuant to s 18 (1), of the Confiscation (Proceeds of Crimes) Act cash in the sum of $6,062.10 be forfeited to the State. I will sign the Confiscation Order.

104. Are there any further orders sought?

105. BLOCK: No your Honour.

106. HER HONOUR: There needs to be two disqualification orders in relation to these--

107. BLOCK: For the driving offences yes.

108. HER HONOUR: Just to confirm Ms Crown, the automatic disqualifications are different, is that correct.

109. BLOCK: Yes your Honour, it appears to have changed at some period in between the offences being committed.

110. HER HONOUR: So is the automatic two years for the earlier offence? It’s just not clear whether that’s--

111. BLOCK: Yes your Honour the earlier offence the automatic disqualification is two years and it then became automatic disqualification of 12 months with a minimum of six months.

112. HER HONOUR: So in respect of H127196701 (sequence 1): the offender is disqualified from driving for two years and in respect of H66772226 (sequence 9): the offender is disqualified from driving for 12 months.

113. Are there any further matters that I need to refer to in my remarks?

114. MATE: Not from my perspective your Honour but can I just confirm that those disqualifications commence from, they would commence from the end of his other disqualifications.

115. HER HONOUR: It is a matter for the RMS.

116. MATE: The RMS. Thank you your Honour. Nothing further from me your Honour.

117. HER HONOUR: Is there anything further Ms Crown?

118. BLOCK: Not from the Crown’s perspective. There are a number of matters that appear to be outstanding on the list that to my knowledge weren’t listed. They shouldn’t be before the Court from the crown’s perspective.

119. HER HONOUR: You can deal with my Associate in relation to those matters.

120. BLOCK: Yes your Honour.

121. HER HONOUR: Mr Vickers that completes the matter. I will now disconnect the audio visual link. Thank you.

122. OFFENDER: Yes your Honour.

Decision last updated: 11 December 2019