R v Waters, Napier

[2009] NSWDC 297

CITATION:	R v Waters, Napier [2009] NSWDC 297
HEARING DATE(S):	27/08/2009 & 02/10/2009
JUDGMENT DATE:	2 October 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Section 11 Conditional Bail granted for period of 12months. Stay ordered until the 8th October 2009.
CATCHWORDS:	Criminal Law - Sentencing - s.11 bail - aggravated wounding - in company of femal co-offender - seeking handouts of money with persistence - degenerates into assault with wounding - 3cm laceration - requires overnight hospitalisation - prior heart conditin - assessed below mid-rang of seriousness - offender on remand for 16 months - drug related offence - full time rehabilitation a condition of bail.
CASES CITED:	R v Way (2004) 60 NSWLR 168 R v Gladue [1999] 1SCR 688 [80] R v Cuthbert (1967) 2 NSWR 329 R v Rushby (1977) NSWLR 597 R v Hayes [1984] 1 NSWLR 740 De Simone v The Queen (1981) 147 CLR 383
PARTIES:	Regina Napier Collin Waters
FILE NUMBER(S):	2009/00002204
COUNSEL:	Defence: G Jauncey
SOLICITORS:	Crown: A Brady

JUDGMENT

1. Napier Waters is a thirty-six or perhaps a thirty-seven year old Aboriginal man. He has been admitted to prison thirty-nine times. Admittedly many of them are bail refusals and then subsequently obtaining bail. Sixteen times it is said, and I think it is probably more, he has been sentenced to terms ranging from two to three months through to twelve months. Currently he has been bail refused for nearly sixteen months on his most serious charge to date.

2. On 3 June 2008 at Kings Cross being in the company of his then partner, he recklessly wounded Gailan Hoshi-Ali. On an indictment that charges three offences this offence is an alternative to count 2. The offender pleaded guilty to this charge which was accepted in full satisfaction of that indictment. Today he is to be held accountable for his role in this criminal conduct. As sentencing judge it falls to me to resolve a number of compete intentions as I strive to determine the appropriate sentence for this offence, before this court, committed by this offender, harming this victim in the Kings Cross community. Gladue v The Queen [1999] 1SCR 688 [80].

3. My initial task requires an assessment of the objective criminality of the offence before the court. I will also need to have regard to matters personal to the offender, subjective matters.

4. The starting point for these assessments requires me to make findings of fact from the evidence before the court relating to both the offence and to the offender. Before any sentence can be made there are technical questions relating to deterrence, discounts, whether special circumstances are to be found, whether this offence attracts a standard non-parole period and ultimately the length of any parole period that I would set and the ultimate length of the term of imprisonment or other penalty to be imposed. None of that can be determined until the primary facts are considered.

5. What weight needs to be given to all of these matters against the imperative that all sentencing should have is its primary focus, the protection of the community will also need to be determined, see R v Cuthbert [1967] 2 NSWR 329, R v Rushby (1977] 1 NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

Facts

6. The Crown has tendered facts which “are not disputed”. These facts do not account for the motivation of the offending conduct. What motivated the conduct clearly has an important bearing on the nature of the criminality. That is a matter to which I shall return after I have read these facts on to the record that “are not dispute”.

7. Two offenders Napier and an alleged co-offender Michelle Murray were in the Kings Cross area on 3 June 2008. Both Waters and Murray are Aboriginal persons. She was then aged about thirty-seven years. Residing in an apartment at Hughes Lane Kings Cross was a man named Robin Ward. His premises had a balcony with a view to the corner of Hughes Street and Hughes Lane.

8. At about 6.40pm he heard a male voice yelling, “Police”. Initially he ignored that cry; but on the yell being repeated he moved to his balcony to see why. The voice continued calling for police and Ward detected a note of distress in the voice. He looked in the direction of the yelling and saw two males Hoshi-Ali and Waters and a female, all were walking. Hoshi-Ali was about two metres ahead of Waters and Murray. They were gaining upon him at a fast pace.

9. As Waters and Murray reached Hoshi-Ali both used their hands and forced him to the ground. He was resisting and trying to stay on his feet. In a short space of time he was on the ground and Waters and Murray were wrestling with him. Whilst he was on the ground both Waters and Murray aimed punches at him. He, however, was not returning the punches.

10. One Roger Joyce came to the intersection, saw Hoshi-Ali with blood on his face and dialled triple-0. Police and ambulance attended. Hoshi-Ali was taken to St Vincent’s by ambulance. A quantity of blood was located at the scene at a point consistent with where Ward had described Hoshi-Ali as falling and being assaulted by Waters and Murray.

11. In June 2008 Murray and Waters were in a relationship. At this time he was using cocaine. He is a long term drug user. His drugs of choice appear to be alcohol, cannabis, cocaine, heroin and methadone. His reported use of methadone is for rehabilitation purposes.

12. Waters told Cherise Cieplucha, a forensic psychologist retained for the defence, that he recalled being in the company of a friend who was allegedly being assaulted by the victim. He reported that after he asked the victim what he was doing the victim responded with a derogatory comment and that Waters subsequently hit him. He added that after he hit the victim the victim fell to the ground and that he slapped him in the head. I take the friend to have been his then partner Murray. Waters told the court “he (Hoshi-Ali) manhandled Michelle [Murray]”.

13. Also tendered in material before me is a victim impact statement. This impact statement contains a history given to CR Camaoho. It could be Camasho. I recognise that neither CR Camaoho nor Gailan Hoshi-Ali have been cross-examined and the history of Hoshi-Ali is second-hand hearsay. In those circumstances I need to exercise caution in accepting its contents as evidence of the facts.

14. His account of the incident is in these terms.

[Mr Hoshi-Ali] was walking through Springfield Gardens when a male and female approached him for money. He continued walking until the male caught up with him and demanded his money. Despite handing over his money the man began striking him with a can and his fists. The female also assaulted him whilst on the ground.

Mr Gailan Hoshi-Ali states that the physical assault lasted what seemed a long time. He thought he was going to have a heart attack. They left him on the ground and he could not see due to the amount of blood on his face. He then proceeded to go to the police station.

15. In order to resolve the competing versions it is useful to return to the account given by Robin Ward. Ward speaks of hearing a male voice yell for police several times before the assault which caused the wound. He also sees the pursuit of Hoshi-Ali before the assault which causes the wound.

16. The account given by the offender does not fit those circumstances. The account given by Hoshi-Ali fits what Robin Ward said save for a couple of matters. One of them is calling out for the police and the other is he then proceeded to the police station. The agreed facts have him being taken by ambulance. On the offender’s account Hoshi-Ali manhandled Murray, his then partner. The voice calling for police was male. There is no claim the offender himself was calling for the police. Had Murray been manhandled, while it is possible she could have called for the police in a female voice, it is more likely she would have called to Waters who was present with her.

17. I am satisfied beyond reasonable doubt the account given by Hoshi-Ali is closer to reality than the account given by Waters. I am satisfied Waters was looking for money to sustain his drug use. I know nothing about Murray and whether she had a drug problem. I should note I do not make any finding that there were “demands” for money. As to that material that appears in the victim impact statement it constitutes an opinion or conclusion. In my view it is not a conclusion open on the material before me. De Simone v The Queen (1981) 147 CLR 383 is authority for placing the limit of the criminality I am dealing with to the charge before me and not some more other more serious charge. Nor do I find on the evidence before me any weapon, such as a can or any other weapon being used by the offender.

Objective Criminality

18. This is an offence that appears to have occurred in circumstances where the offender and his partner were seeking handouts of money with some persistence. At some point the pleading degenerated into an assault upon Hoshi-Ali. Every person is entitled to the integrity of his or her person. All physical assaults constitute an attack upon the integrity of the person and for that reason constitute antisocial conduct or putting it in language more readily understood constitute criminal conduct. A wounding is one of the means of measuring the viciousness of an assault. In the normal course of events a wound reflects greater personal damage than a laceration or bruise or many forms of actual bodily harm.

19. The report of Dr Johnson of St Vincent’s Hospital contains the following. On admission (Hoshi-Ali) was initially assessed and treated by the emergency registrar... who recorded his sufferings from,

· A 3 centimetre lineal laceration above the left eyebrow,
· Complained shortness of breath,
· Partial amnesia to events,

Mr Hoshi-Ali was already known to the doctors of St Vincent’s on a count of a cardiology condition. Consequently his treatment required,

· Laceration sutured by the emergency registrar,
· Conservative treatment from a cardiology team
· Simple analgesia was given and patient discharged,
· His treatment was not completed as he discharged himself against medical advice,

In my view the medical advice must only have related to the potential for some cardiac development.

20. First the wound required medical treatment. It caused stress and alarm to the victim. While there was a potential for a far more serious and perhaps long term consequence that potential was never realised. As with these kinds of offences the emotional and psychological consequences often linger as they have in this case.

21. The victim now experiences post traumatic stress disorder, depressive mood with anxiety and agoraphobia all to some greater or lesser extent legacies of this attack. The attack was not planned. It was opportunistic and probably drug related. The aggravating features of the attack, that is the offender being in company has been elevated to an element of the offence. The potential for company includes more than one co-offender and indeed contemplates the potential for strong male thugs as co-offenders. In this case the co-offender was a thirty-four year old, smallish female. So in terms of the aggravating feature itself the aggravation was towards the lower end of the spectrum of potential aggravation. Thus the wounding while requiring medical attention was of a lesser level of seriousness than others. The offence was opportunistic and the level of aggravation was itself towards the lower end of the spectrum.

22. I have rejected the claim for or of provocation. There is a s 21A (2) feature of aggravation, namely the offender was on a s 9 bond for an offence of common assault. That is an offence of the same nature although less serious. Considering the objective criminality together with the s 21A matter I have just referred to I would place this offence as falling below the midrange of seriousness. The offence would not be described as trivial or minimal. It is an offence of some significance of criminality falling however below the midrange of seriousness.

23. There is a victim impact statement that has been tendered. As I said earlier the material contained in it is not sworn evidence and has not been subject to cross-examination to the extent that opinions are expressed in such a statement I recognise they may not be the opinions of a qualified expert although in terms of the diagnosis there will be.

24. The victim impact statement coming as it does from the primary victim may if I accept it as reliable provide unsworn evidence as to the fact of the offences and their effect upon him. The functions of statement such as this one is to give to victims the opportunity of being heard in sentence proceedings by publicly identifying the impact of trauma visited upon them by the actions of an offender. Secondly they enable sentencing proceedings to assist victims as they move toward some closure of grief, resentment and brooding arising from the criminal conduct of an offender. Thirdly the victim impact statement contributes hopefully at least to an offender hearing firsthand and perhaps gaining some insight into the impact his conduct had upon the victim. Finally the victim impact statements as they come across the bench are a means or reminding judges of this court of the impact and effect that crimes of violence can have upon the ordinary men and woman who have been subject to criminal offending.

25. There is a heading in this report prepared by CR Camacho in these terms:

“Significant History after the Incident”. Mr Hoshi-Ali experienced symptoms of depression, sleep disturbance and helplessness concerning his future. Mr Hoshi-Ali experienced anxiety during the day with evident triggers. Hoshi-Ale had difficulty sleeping at night. Experienced sleep disturbances and deprivation. Slept approximately three hours a night of interrupted sleep, awoke frequently and could not fall back to sleep. Worried and thought about his future at night. Hoshi-Ali feels that his career has been abruptly interrupted since the assault”.

I interpolate here that he was actually going about a project connected with his research on the night of this offence.

“Hoshi-Ali states that he cannot see himself being able to take control of his life. He states that his home life has been affected. He has lost interest in everything. His friends, his children and his wife. He finds it difficult to carry out his research and has major trouble writing. He feels a sense of anger and frustration at the inability of the police to reprimand rather or impose any form of charge on the couple [clearly an error on his part], Hoshi-Ali had negative thoughts running through his head throughout the day and night usually when he is alone. He complained of restlessness and tosses and turns throughout the night, became frustrated when thinking about the significant changes in his life since the assault in June 2008.

26. That report was written in May 2009. I note just before passing from the victim impact statement that I have already referred to the extent of the physical injuries and the treatment required.

Subjective Matters

27. I turn now to the subjective factors. I am both entitled and required to do that. Not only am I sentencing for the criminal offence but I am also sentencing this offender for it. Each offender coming before the court varies from others who stand or who have stood for sentence. Circumstances personal to this offender may offer to the court some explanation and insight into the commission of this offence by him and provide some reason why a more or a less sentencing outcome is called for.

Family dynamics, relationships and general background

28. Waters was adopted when three weeks old to parents of British heritage. In that family he has two sisters, six months and six years his junior. He has two aboriginal brothers, three and five years his junior who were adopted when he was around eleven. He was raised in a caring and supportive family environment. He enjoyed close relationships with his adopted family.

29. At the age of eight he learnt he was adopted. A welfare worker asked him if he wanted to meet his biological mother. His adoptive parents took him to meet her. She was pointed out to him on the streets of Redfern at a time when she was under the influence of alcohol.

30. He met his biological father when he was twelve. He described that as an overwhelming experience. Between them his biological parents had seven sons and daughters but he is unable to allocate the number of children each parent had and presumably, who of those siblings of his, belong to the mother and who the father. He reports strained relationships with his biological siblings.

31. He left the adopted family at the age of about fourteen to live with his father and stepmother. Initially that worked out okay but transition into the new family was difficult. Ultimately he came to recognise his father regularly drank alcohol to excess and he witnessed his father being physically violent towards his stepmother whilst under the influence of alcohol. He, and those siblings within that family were often subject, to physical abuse.

32. He stayed with his father for approximately nine months before moving to his biological mother and stepfather. By this time he was fifteen. That move occurred after he had had an altercation with his father and it would seem, had little choice as to where he could go. It lasted only six months, which he attributes to his mother and stepfather’s alcohol abuse and problematic gambling. There were periods of homelessness, periods spent in juvenile justice facilities and subsequently followed by custodial sentences in adult correctional facilities.

33. Waters has been involved in two long term relationships. The first at sixteen, lasting for some four years. The second lasted for a period of fourteen years and ended when his then partner passed away in 2002 during a house fire. This partner has a positive influence him. Waters said, “She settled me down”. She had come to the relationship with two children, a son and daughter, who are now in their twenties. There has been no contact with those stepchildren since their mother passed.

34. Waters and his partner produced three children, a son and two daughters. A son and one daughter have passed away. The son, during birth, and the daughter, some days after she was born. That daughter died two weeks prior to the death of his partner. His partner died when the house that she was living in burnt down. That occurred shortly after she had been visiting him whilst he was in custody. He says he found the deaths of his family traumatic and recalled experiencing significant difficulty coping with grief associated with the loss. As I mentioned, he was in custody at the time of the death of his partner and it is likely at the time of the death of his daughter.

35. His surviving daughter is aged ten and resides with an aunt and he has desire to regain custody of her as an ultimate goal but to resume links with her, necessary before any transfer of custody. She lives with a well-respected seventy year old Aboriginal woman.

Education, skills and employment

36. Waters did relatively well in primary school. He encountered no significant learning or social difficulties. He complied with school discipline. There was no problematic behaviour. His attitude towards school, however, deteriorated in high school and he noted ongoing behavioural difficulties. He reports being frequently involved in fights. He became involved with what I might call a delinquent peer group from around the ages of eleven, many of them being, it seems, other young Aboriginal children at the school.

37. He left school prior to completing Year 9. He commenced work, primarily engaged throughout his work life in manual labouring positions. These include trade assistant, labourer, storeman, packer, fitter and turner. He obtained some qualifications as a fitter and turner, with one of his employers, who gave him a certificate.

38. He told Cherise Ciepulcha that he would, during part of his working career, alternate between six months work and six months holidays, spending time with the family when on holidays. He started a Bachelor of Arts degree in 2003, completing one semester before he decided to withdraw. At the time of this offence, he was unemployed and uncertain during that time of his employment options. In custody, he has worked as a unit sweeper for five months, a position he lost on account of arguing with one of the custodial staff.

General Health

39. He presents in court as best one can tell, in good physical health. He says that he has an unremarkable early medical history and that he has been able to maintain, subject to one matter, satisfactory health throughout. He does report that he has been prescribed Celebrex to manage lower back pain associated with Schumann’s disease. In evidence he said this was a disease of the spinal cord or the spinal column in respect of the lumbars, the lumbar joints I imagine. It was, as I said to him, not a disease that I could find reference to in my medical dictionary.

40. The opinion of the forensic psychologist retained by the defence is in these terms.

“Waters impresses as a vulnerable man whose problems have passively affected his personality and emotional functioning. He reports depressive symptomatology, which appears to be reactive to his current legal situation. I note however that he reported a history of depression which predates his offence, which appears to have occurred in response to the grief he was experiencing following the deaths of his partner and children. Overall Mr Waters impresses as having unresolved grief and loss issues, which he previously attempted to manage through substance abuse.”

Drugs and Alcohol Issues

41. Waters has a history of alcohol and drug use. His alcohol use commenced in his teenage years, circa 14. He consumed wine and beer on frequent bases, starting by being provided alcohol by his friends and reaching a point where he was a regular and heavy alcohol consumer in his adult years. There were some periods of sobriety, frequently followed by periods of heavy alcohol use. He reported drinking alcohol as a way of coping with difficulties in his life. He would often make attempts to decrease his alcohol consumption.

42. His history of cannabis use commenced around the age of 25. This was his first foray into drug abuse. His cannabis use progressed to daily use and he reports last using cannabis prior to his incarceration.

43. He commenced using cocaine five years ago, that would be at about age 30-31 and he reported consistent and heavy use of the drug. He was using cocaine on a daily basis. Again he said, to manage his depression after the death of wife and daughter. He concedes he was using cocaine until the time of his arrest.

44. He also reported the use of heroin, describing himself as an intermittent user of that drug prior to coming to it on a daily basis after a few months. He has participated in methadone programs and returned to taking methadone for a three month period in 2008 in an attempt to address his dependence. He described to the alcohol and drug worker that heroin was one of his drugs of choice.

45. He has participated in a few drug and alcohol intervention programs. There was a period of one week’s detox and the Langton Clinic Centre in Surry Hills. He has been to Bennelong’s Haven and Orana Haven for four month period in 2002-2003. If he was there for a four month period, that would probably mean he completed that course there. Waters appears to have struggled to maintain abstinence from illicit substances over the past few years. Further to this, he expressed motivation to avoid drugs and alcohol in the future. His ability to maintain this in the community post release, where he will be more at risk, is untested.

46. The drug and alcohol report makes the following points. During initial assessment of him.

· He presented as someone who desired to be drug free and to be there for his family.
· He is open about his drug use and his offending behaviour.
· He is a loner and finds it difficult to trust anyone with his thoughts and feelings.
· He is keen to participate in alcohol and other drug programs so he can learn to be a responsible father and a productive member of the community.
· His preferred drugs were marijuana and heroin. I note that he does not say anything about cocaine, which I find interesting given he had a five year period with it.
· He has been able to abstain from drug use whilst incarcerated.
· He has attempted to stay drug free in the community in the past and was successful when attending AA meetings.
· He is not unwilling to accept help.
· He just has no awareness of what is required for him to break his offending cycle.

47. Mr Andrew House, the alcohol and drug worker at Long Bay made this comment.

“I believe Mr Waters would benefit from more intensive support, continued counselling and the opportunity to attend programs that are available at Long Bay. The main contributor to his re-offending is his lack of awareness and he has no significant interventions. There are programs in goal and the community to help him with this. I believe Mr Waters is at the stage where is a good candidate for rehabilitation.”

Character and criminal antecedents

48. Waters sees himself as a victim. There is no doubt he has had a difficult life. Abandoned by his parents; aged three weeks; raised by good people but away from his cultural heritage; introduced to his mother in circumstances demeaning to her and to him; difficulties in assimilating into the families of his parents; disruption in his own status within his adopted family; untimely traumatic death of his partner in circumstances where his sense of impotence is heightened by being in custody; deaths of two of his children, and substantial periods of incarceration.

49. As a victim, if that’s what he wants to be, his capacity to take responsibility for his life is compromised. Victims can’t remain victims unless they are suffering. Until he accepts that while he has had past trauma, it is time to accept responsibility for himself, he will continue to use alcohol, drugs and commit these offences because of the effect of the alcohol and drugs on him and in order to obtain money. He can justify all this because after all, he is a victim and needs to take these things to ease his pain and suffering.

50. On the other hand he does have a bit of a history that indicates he is capable of productive activity in employment and within a family. He is at least telling those who ask that he is willing to rehabilitate. It may well be that he has reached a crossroads.

51. His past criminal history has all been before the Local Court. I have referred to it in my opening remarks. His offences include alcohol related offences such as offensive conduct, resist arrest, PCA offences, assaults and there are also offences of dishonesty. There are a number of car stealings and driving offences.

52. Cherise Clieplucha is of the opinion that Mr Water’s score on the relevant test indicates that he would be considered a very high risk for re-offence, thereby requiring a high level of supervision and intervention. Factors considered to elevate Mr Waters’ include,

· A prior history of offending, including periods of incarceration.
· Breach of community supervision guidelines in the past.
· Reported history of substance abuse.
· Reported history of associating with substance abusing peers, including partners(?)
· Presents with poor emotional coping skills.
· Unresolved grief issues that continue to impact on him.
· An isolated individual socially, with few supportive resources.
· Did not appear to be involved in any positive community activities at the time of his arrest.

53. Given the high level of risk, efforts should be made to deal with issues causing his offending conduct. The primary one is an attitudinal one, he has to stop being a victim and start becoming a person who takes responsibility for himself. That does not mean that he ignores his past. He carries it, and perhaps carries it with some pride because he has overcome it. We are not re-writing history here, what we are doing is overcoming it.

Plea status

54. It would appear this charge, to which he has pleaded guilty, was only offered to him shortly before he entered it. It is not, though, an early plea in the sense that it was not entered before the Local Court. But it was accepted when first offered by the crown. I have determined that when it came time to sentence I would give a twenty percent discount for it.

Review of Subjective Material

55. There is little in the subjective material that mitigates a sentence otherwise appropriate on account of the objective criminality and the s 21A(2) features of aggravation. The plea of guilty is a s 21A(3) matter of mitigation, see R v Way (2004) 60 NSWLR 168. The effect of the guilty plea in the circumstances of this case is to remove it from those cases where a standard non-parole period would otherwise be called for.

56. The maximum penalty for this offence is one of four (as said) years. Offences falling within a mid range of seriousness have a four-year standard non-parole period prescribed. I have already noted this offence falls below that mark, taking it outside the offence for which a standard non-parole period is required. Thus there are two bases for holding the standard non-parole period does not apply. I should note, however, the standard non-parole period is nonetheless a benchmark to which I must have some regard when setting the sentence for this offence.

57. But for the plea of guilty, I would have set an overall sentence of three and a half years. I would necessarily discount that sentence by 20 percent on account of the plea. That would resulting an overall sentence of two years and nine and a half months. If I were sentencing today, I would find special circumstances on account of the need for him to be in the community to actually do something about his drug rehabilitation.

58. Rehabilitation from drugs in prison in far more easy than it is to achieve in the community. I would divide the sentence so that there was a total non-parole period of twenty-one months and a twelve and a half month balance of term. I note the offender has been in custody since 4 June 2008. Thus, but for a couple of days, he has already served one year and four months. That would leave some five months to serve on the sentence I would be imposing before he would be eligible to commence the twelve and a half month parole period.

59. I have given clear details of the sentence I propose setting. I do that so that in the event that the offender should choose to have a s 11 bail as I understand he is seriously contemplating, he will know the consequence of failing on that bail. That will be a sentence of five months to serve and a balance of term of twelve and a half months. It would be necessary for me to make the whole thing, express it as a twenty-one month non-parole period but backdate it, so that it was left with five months to serve.

60. My reluctance to impose a sentence is that I am of a view the balance could be served as a suspended sentence if he were able to demonstrate a real capacity to rehabilitate. He has indicated to those who have interviewed him for these proceedings, that he wants to rehabilitate. Judges have been cautioned against accepting the proposition that someone is at the crossroads unless they have demonstrated that they are there. Hence my desire to give him a chance. There can only be the one. Now is the time to determine whether he wants to take it.

JAUNCEY: Yes your Honour.

HIS HONOUR: He will be required to enter into a full time rehabilitation program for some months. Thereafter he will be required to live at a specified address which you will need to advise me of. He will be required to perform certain other things which I will put in the s 11 bail.

ADDRESSING THE OFFENDER:

61. So that you may have some idea of what they are, let me just give you an outline. Accept supervision of probation and parole. Understanding that they are my eyes and my ears, I cannot be with you twenty-four hours a day, out there seeing what you are doing, they will report to me and even if you do not like them, they are still my eyes and my ears and if I do not hear from them in good terms, you will be back in gaol do you understand that?

OFFENDER: Yes I do sir.

HIS HONOUR: Right. It has to be made clear, I am not there, they are. They are my eyes, they are my ears. They also happen to be a resource that the government gives to assist you. So you will accept all reasonable directions from your case manager. It will be a period of complete abstinence. Abstinence from alcohol, abstinence from drugs. At least for the first eight months and then we may look at alcohol and see what your attitude to it is; but for the first eight months, abstinence. You will be submitting to random tests, both breath and urine to ensure that the random alcohol and random drug tests show up any alcohol of drugs that you may be taking. I should tell you a dirty test or any false test, that is somebody’s else’s urine, and that is a breach of bail, pretty obvious I would have thought. You will required to seek and maintain employment if you can in the country, if that is where you happen to be, that may be more difficult, in which case you will enrol at Centrelink in what is called a personal support program trying to get employment. You will attend AA somewhere, at least once a week and more if you feel inclined and you will need to provide proof of it. They usually have a little chart that somebody signs, or you can even make one for attendance at AA and they just initial it so that I know, and if they have a stamp, so much the better, Broken Hill AA the stamp, that would be fine. Attending all meetings, programs, counselling required by the case manager and of course obeying all directions of the relevant drug and alcohol place. I will look to some community activity, even if it is working for Salvation Army, if it is not a sporting activity or coaching or monitoring or being gear steward for some sporting side. I will require some community activity such as packing things for Salvation Army or working one day a week at St Vincent de Paul or something, all right.

HIS HONOUR: Do you have a driver’s licence?

OFFENDER: No sir.

HIS HONOUR: Are you disqualified?

OFFENDER: No.

HIS HONOUR: I want you to do all you can to get a driver’s licence because one of the big areas of offending, particularly for Aboriginal clients in the bush, so we want to rule that out as a potential disaster for you. Is there anything else Mr Jauncey?

JAUNCEY: No your Honour.

HIS HONOUR: Now that set of conditions, are you able to abide by that?

OFFENDER: Yes I am.

HIS HONOUR: Is there anything that I put there that you cannot do?

OFFENDER: No no there shouldn’t be no.

HIS HONOUR: That’s on the record, right. You have said that there is nothing in there that you cannot do. That takes away your excuses. I am not going to prescribe where you go because you are likely to do better if you go where you feel you should go. But I would like to have some situation set up by Thursday of next week if we possible can. What you do reckon Mr Jauncey?

JAUNCEY: I - we can do that your Honour.