R v Weymark-Voilet

[2014] NSWDC 364

District Court

New South Wales

Medium Neutral Citation:

R v Weymark-Voilet [2014] NSWDC 364

Hearing dates:

12/12/2013; 21/02/2014

Decision date:

21 February 2014

Jurisdiction:

Criminal

Before:

Judge S Norrish QC

Decision:

Sentenced to a term of imprisonment of 4 years with a non parole period of 2 years.

Referred to the Drug Court at Parramatta to ascertain if he should be the subject of a compulsory drug treatment order.

Catchwords:

Criminal - Sentence, robbery in company, plea of guilty, Form 1, Drug Court, Compulsory Drug Treatment Program.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Crimes Act (1900)

Cases Cited:

Postiglione v The Queen (1997) 189 CLR 295
R v Henry (1996) 46 NSWLR 346
Jimmy v R [2010] NSWCCA 60
R v Thomson and Houlton [2000] NSWCCA 309
Veen (No 2) v The Queen (1988) 164 CLR 465

Category:

Sentence

Parties:

Director of Public Prosecutions
Dale Weymark-Violet - Offender

Representation:

Counsel:
Ms S Goodwin - Crown
Mr Krisenthal - Offender

File Number(s):

2012/239969

sentence

1. HIS HONOUR: Dale Scott Weymark-Violet - as he is known in the indictment - but otherwise is referred to as Mr Weymark, appears today for sentence in relation to an offence to which he pleaded guilty at the commencement of his criminal trial before me last year.

2. The crime to which he pleaded guilty alleges that he on 1 August 2002, at Turramurra in the State of New South Wales, being in company with Matthew James Morgan, robbed Mostofa Hossain of a certain amount of money and packets of cigarette, the property of Harpeet Singh.

3. This is an offence shortly called robbery in company, contrary to s 97(1) Crimes Act (1900) and carries a maximum penalty of 20 years imprisonment. It has no standard non-parole period.

4. The offender was in custody from the date of his arrest which was 1 August 2012 until 20 September 2012. That is a total period of one month and twenty days. That period of time in custody will be taken into account in the sentencing of the offender today. The best way to do that is to backdate the offender’s sentence to that period of one month and twenty days and to accord the offender, in relation to the sentence to be imposed today, the full discount permitted pursuant to the guideline judgment of R v Thomson and Houlton, a guideline judgment dealing with the utilitarian benefit to be accorded on a plea of guilty.

5. There is no dispute in this matter, as I understand it, that the appropriate discount to be granted to the accused is 10%.

6. The sentencing of this offender is very much to be seen in the context of the sentencing of Alexander James Van Kool and Matthew James Morgan, two offenders who I sentenced on 12 December 2013. The other two men were truly co-accused of this offender although ultimately Mr Van Kool pleaded guilty to being an accessory after the fact to the robbery in company, to which this offender has pleaded. His connection with the robbery was close. There are some gaps in the evidence it must be fairly said, but there was a very strong circumstantial evidence case to establish his approximate connection with the events that give rise to the current proceedings.

7. The sentence imposed by me on 12 December 2013 that most compares with the circumstances of this offender is the sentence I imposed on Mr Morgan. He pleaded guilty to the same charge, was entitled to the same discount for the utilitarian benefit of the plea. He asked me to take into account, in relation to the principal offence, the robbery in company offence, a matter on a Form 1 which carried a maximum penalty of 14 years imprisonment if dealt with separately.

8. In my remarks on sentence I dealt with issues that led me to the conclusion that the appropriate sentence in relation to Mr Morgan was a sentence of four years, with a non-parole period of two years. Of course the issue of parity is primarily of concern with the sentence that should be imposed for the ‘total’ sentence, given the varying circumstances that might inform the decision as to what the appropriate non-parole period should be. Particularly of course the variation in circumstances that might constitute “special circumstances” between different offenders charged with the same offence.

9. It may be in a particular sentencing exercise that two offenders receive the same “head sentence”, all relevant matters taken into account in fixing that sentence, but one offender may receive a finding of special circumstances requiring an adjustment of the relationship of the non-parole period to the balance of the sentence, and the other offender may not, leading to of course a longer minimum term if all other matters are equal.

10. These remarks on sentence thus have been designed, as best they can be designed as an ex tempore judgment immediately after the submissions are finished, to reflect those principles that have been discussed in a range of authorities from Lowe v R from 1984, through to Postiglione in the late 1990’s, and recently the subject of considerable discussion in judgments of the Court of Criminal Appeal such as R v Jimmy, a reported decision of the Court of Criminal Appeal from 2010.

11. The matter was probably most succinctly summed-up by Rothman J when he likened the parity principle, in the context of what had been said in Postiglione, to the Aristotelian concept of equality, “Alike shall be treated alike, and the unalike will be treated unalike to the extent of their unalikeness.” The problem here of course is that there are differing factors, some favourable to this prisoner, some unfavourable to this prisoner, from the circumstances of Mr Morgan.

12. I do not propose to recite the facts of this matter now. There is a statement of facts which, as I understand it, is agreed, and I understand those facts are primarily the facts that were preferred against Mr Morgan. Many of the background details concerning the movements of this prisoner and Mr Morgan are much the same. In the earlier judgment of Mr Morgan I dealt with the respective roles of the two offenders.

13. So far as the objective seriousness of the offending by comparison to that of Mr Morgan I stand by, as I am urged to do by learned counsel for the prisoner, the analysis that I made of the matter at pp 9-10 of my earlier judgment.

14. Mr Weymark and Mr Morgan participated in a joint criminal enterprise. Mr Weymark, as the facts revealed, took the more aggressive role and the more leading role, but that having been said Mr Morgan was present and was an observer of all that happened. He continued to participate in the joint criminal enterprise upon which they had agreed. Ultimately the moral culpability of this prisoner, and the objective culpability of this prisoner was, in those circumstances, marginally greater than that of Mr Morgan.

15. Mr Morgan was prepared to profit from the actions of the prisoner and there it can be no doubt on the facts of what the prisoner did was in furtherance of a joint criminal enterprise upon which the two men agree. Furthermore when one has regard to the criminal history of Mr Morgan, compared to that of this prisoner, the remarks I made about the matter, at pp 12-13 of my judgment in December this year still remain valid.

16. This prisoner has a more extensive criminal history than both co accused, and certainly “far more extensive than Mr Morgan’s”. The details of this prisoner’s criminal history reflect the fact that on 9 September 2009, for offences of affray and assault occasioning actual bodily harm committed in May that year, the prisoner received sentences of twelve months that were suspended pursuant to s 12 in the Local Court. Those bonds were revoked at the Local Court on 20 May 2010 and the offender was sentenced, as I understand the criminal history as best I can, to 12 months periodic detention with a non-parole period of eight months.

17. The offender was convicted on 9 September 2009, the same date as he received the suspended sentences in respect of offences of common assault, affray - as I would understand it - and behaving in an offensive manner. Ultimately he was sentenced to 200 hours of community service in respect of the common assault and affray matter, receiving a s 10A conviction in relation to the other matter.

18. With regard to those orders he was called up at the same time as he was called up in relation to the s 12 bonds for obviously failing to perform his community service. For those offences he was sentenced to 12 months imprisonment by way of periodic detention.

19. On 7 February 2011 he was convicted of destroying or damaging property and placed on a good behaviour bond for 15 months.

20. On 20 May 2010, when he appeared at the Downing Centre Local Court, he was sentenced to nine months imprisonment with a non-parole period of two months, in respect of an offence of stealing from the person committed apparently in September 2009.

21. In November 2010 he was convicted of dishonestly obtaining property by deception, on three separate occasions, for which he was sentenced to six months imprisonment; breaking, entering and stealing for which he was sentenced to six months imprisonment.

22. On 8 February 2013 he was convicted of an offence committed in July 2012, but for which he was not on bail at the time of the commission of this offence, and given the benefit of a good behaviour bond pursuant to s 9.

23. Unlike Mr Morgan, as it appears from that record, I have not referred to a driving offence committed in June 2012 of special range PCA. The offender had committed substantial offences of violence for which he was imprisoned. As has been pointed out today in the submissions, Mr Morgan had not previously been imprisoned at the time that I had sentenced him for their offence, which is something that could not be said of this offender.

24. With regard to Mr Van Kool, if I may just deal with him in passing, the issue of “parity” does not strictly arise in the context of him being sentenced for an offence of accessory after the fact to robbery. His sentence of course took place at the same time as Mr Morgan, and thus the comparative situations of those two offender taking into account varying subjective circumstances, ultimately warranted a lesser sentence for him. He did not bear the same degree of moral culpability, or objective criminal culpability, as Mr Morgan or the accused.

25. I have pointed out the matters that might fairly be said to be adverse to this prisoner in a comparison of his circumstances with that of Mr Morgan, particularly at the time of the offending. To this prisoner’s credit - allowing for the factors I will point out in a moment - there are a range of other matters to be taken into account. There are two features of the matter, in his personal circumstances, that distinguish him favourably from Mr Morgan.

26. In terms of assessing the appropriate penalty all matters are taken into account, an important matter to bear in mind in this sentencing exercise is that Mr Morgan asked for the matter that I earlier referred to to be taken into account on a Form 1. It was substantial offending. As I pointed out in my judgment on 12 December 2013 I was not required to measure the extent to which that matter on the Form 1 affected the otherwise appropriate sentence for the principal offence.

27. I went through in some detail the general principles that flowed from the guideline judgment of 2002 that I cited in that sentencing exercise. But it must be fairly said that if Mr Morgan was to appear in court in relation to the offence on the Form 1 standing alone the likelihood would be that he would be sentenced to a term of imprisonment. Putting aside the seriousness of the offending, and seeking to recruit someone to give him, in effect, a false alibi, he maintained that situation - if I could call it that - for a number of months. It was not as if he recruited someone and then recanted within a very short period of time. I took all of those maters into account when sentencing him.

28. Of course, as I have just pointed out, at least in passing, by taking into account a matter on the Form 1, it increases the sentence that would otherwise be required for the principal offence. It could be fairly said that for this prisoner, because of his criminal history, greater weight in the context of s 3A matters should be placed upon personal deterrence, and the way in which that matter is understood from the High Court judgment of Veen (No 2) v R. It could be fairly said that the objective gravity of the prisoner’s offending is greater than that of Mr Morgan, albeit marginally in all the circumstances. Those matters must be weighed against the increase upon the appropriate sentence to be imposed upon Mr Morgan by reason of the matter on the Form  .

29. The other feature of this matter of some importance is what could be called, through the able submissions of his counsel, the progress in the rehabilitation of the offender. Of course promoting an offender’s rehabilitation is one of the many purposes of sentencing that I am required to take into account in sentencing in every exercise. As the High Court of Australia in Veen (No 2) pointed out, when it identified four of the seven or eight purposes of sentences that have since been enshrined in s 3A of the Crimes (Sentencing Procedure) Act, the purposes of sentencing are guideposts that sometimes point in the opposite direction. I propose to give credit to the prisoner’s endeavours over the last period of time since released from custody to address some of the issues that have bedevilled him in his life, particularly a history of polydrug abuse, a contributing factor it would seem to his offending on this occasion, as it was for Mr Morgan and Mr Van Kool, and attempts to stabilise his domestic circumstances.

30. These matters speak in the context of what could be called s 21A matters which I, in my rush, did not spend a great deal of time analysing back in December 2013. The recognition of findings pursuant to s 21A(3) amongst mitigating factors, other than those that would otherwise be available from the material, is a conclusion that the prisoner has demonstrated, albeit that there are question marks about his drug use and there certainly are questions about his problematic drinking, that he has good prospects of rehabilitation.

31. His ability to avoid offending for a start since August 2012 is an important matter given his history of offending in the two or three years before that. Of course, it goes without saying that the community will not give him a pat on the back as such for doing what he should be doing. The community expects its citizens to conduct themselves in an orderly fashion for the welfare of everybody. But it must be recognised that many people, once they start on a course of offending, have a great deal of difficulty stopping, sometimes because the fundamental contributing factors to their offending are not addressed.

32. The prisoner has sought to address some of these matters, as the reports made clear, and although - in my view - he has not been entirely successful to this point there are indications that he has made progress, and that progress should be recognised.

33. If I could just turn to the evidence that is particular to him, as opposed to the evidence that was particular to the co-accused, at the moment - this prisoner has been the subject of assessment by the Probation and Parole Service, which reflects upon his family background and his history of, as I have described it, “polydrug use”, extending back to his teenage years. It is a common factor through the offending of this prisoner with his co-accused that on the night in question, that is the night before the commission of the offence in the early hours of the morning, the offender was affected by, and had used Xanax tablets, and had been abusing Xanax for some period of time.

34. Since his release from custody - to which I have earlier made mention - the prisoner has sought drug and alcohol counselling on a voluntary basis. Contact by the Probation and Parole Service with the Hornsby Area Health Service in June 2013 confirms that engagement, and the prisoner has completed what is called the Getting SMART Program at the Hornsby District Office of that program on 1 October 2013.

35. In July 2013 he completed another course described as Managing Emotions, described as a self-development training program. Again it is to his credit that he has undertaken these matters voluntarily.

36. I point out just in passing that by the time I came to deal with Mr Morgan and Mr Van Kool they, having been on bail for some period of time, breached their bail conditions and found themselves in custody. Hence the reality of the situation that their custody had effectively commenced before I actually imposed sentence on them. There was, in that fact and other matters, suggestions of a lack of success, or some lack of success, on each of their parts to address matters that would progress their rehabilitation.

37. The prisoner’s addressing of some of these fundamental matters go to significant issues that have contributed to his offending over a period of time. His inability to control his temper - that is the way I would express it - rather than controlling his emotions, his inability in effect to control his aggression, and of course his dependence on drugs and his abuse of drugs over a period of time.

38. The Probation and Parole Service concluded that his history of violent offences was a matter of concern. I have not forgotten the level of threat that he offered to the vulnerable victim in this matter. But the Probation and Parole Service noted that he had displayed insight into his offending behaviour, and had noted the connected between his use of prohibited drugs and its impact upon his decision making skills. He is thought to be assessed as at a medium risk of re-offending.

39. He had been co-operative with the Probation and Parole Service. He has what is said to be the steadying influence of his partner, which I accept, and he has the incentive of his partner’s forthcoming delivery of their child. Of course I pause for a moment to point out that that relationship did not stop him offending on this night. Nor has it stopped him offending over the last several years before August 2012. But the Probation and Parole Service acknowledges that the prisoner has taken on greater responsibility for his relationship with his partner, and understood the importance of it giving the current pregnancy, which obviously has arisen since he was charged with this offence.

40. The offender is said by the Probation and Parole Service to “display insight into his offending behaviour”, and that he would benefit from a period of supervision, particularly monitoring drug and alcohol, and mental health matters. In that regard I have a report from a consultant psychiatrist who had seen the offender, referred by the family doctor, over a period of time between January 2012, which obviously pre-dates this offender, until 3 December 2013. The diagnoses of the psychiatrist are that:

“He has experienced adversity in childhood resulting in socio-cultural and behavioural problems. He has had a depressive illness. He has been through substance abuse” - I am using the words of the doctor, I hasten to say - “he has been diagnosed with paranoid psychosis which may be drug/substance induced, or may be an underlying psychosis (schizophrenic) illness.”

41. He has been treated with antidepressant and anti-psychotic medication. This report is dated 7 December 2014.

42. In the submissions ably put on the prisoner’s behalf by his counsel, it is noted that there has been a subsidence of psychotic episodes corresponding with the subsidence in the abuse of prohibited drugs, particularly amphetamine styled substances which obviously, along with prescription drugs, have psychotic consequences. There is, as I said in the course of submission, some empirical evidence of the fact that the psychoses that the prisoner has displayed in the past may or probably have their origin in drug abuse rather than an underlying mental illness such as schizophrenia. I note that in the evidence available to me, there is no suggestion when the prisoner is not affected by prescribed drugs or prohibited drugs that he has difficulty functioning or displays symptoms consistent with an underlying chronic mental illness.

41. In relation to the psychologist’s report, I have taken that into account as well. It is a thorough document. It provides some detail as to his background. It notes difficulties throughout his education but many of these difficulties were associated with conduct problems in his teen years marked usually by substance abuse and violent activity. He did not apply himself in any event due to lack of interest at school and left school at the end of year 10.

42. The report noted that he had left home by the time he was 17, moving out to live with his now partner and her family and that relationship has existed for five years, over a period of time as I have pointed out that the prisoner has been offending. I have pointed out also as the history reveals in the report that his first child is due shortly, March 2014. His partner is described in the report as “pro social” with no history of criminality or substance abuse and this is a matter hopefully that might provide some stability for the prisoner in the future.

43. Most of his issues, however, have arisen in terms of his offending out of his drug use and it is interconnected relationship with his choice of peers and associates. I think when it is all analysed with no disrespect to Mr Morgan and Mr Van Kool who, as I have pointed out, do not have as significant criminal histories as this offender, the offending with which I am concerned in this robbery in company very much speaks of the consequences of peer behaviour when all three participants have some history to varying degrees of antisocial activity and drug dependence.

44. I have dealt with the issue of his drug usage since his teenage years and his use of amphetamines as well as his abuse of prescription drugs. I accept that the offender before the commission of this offence had for a number of months being abusing Xanax but it would appear to me of course that he well knew the consequences of abuse of prohibited drugs or prescribed drugs. Of course, as the guideline judgment of R v Henry (1996) 46 NSWLR 346 held, particularly in the judgment of Wood J but with the agreement of the Chief Justice and other Judges, drug dependency and use is not a mitigating factor, nor could it be in circumstances where people voluntarily abuse drugs with the knowledge of the consequences as surely this prisoner must have given his prior anti social behaviour.

45. That having been said, Wood J, in a separate judgment from the Chief Justice, made observations with which most of the other judges agreed, and pointed out at [273] the ways in which acquiring funds to support a drug habit or committing a crime out of a state of drug dependency may still be relevant in sentencing. It may be relevant to the impulsivity of the offence and the extent of planning. Such is the case here. There is, as I pointed out in the facts earlier summarised in the other sentencing exercise, the fact the prisoner and his colleagues went to another person’s house, apparently an alarm was engaged and they fled.  The planning was minimal, and also to my mind the state of mind or capacity of this offender to exercise judgment was inhibited. That having been said, the sentencing of offenders does not permit of a so-called “drunk’s charter” where people commit serious crimes affected by drugs can expect to be excused.

46. I have taken into account what Wood J has said at [273] in the way that I have identified in relation to the objective facts and I also note what his Honour said further about the relevance of drug dependency to the subjective circumstances, particularly upon the prospects of recidivism and rehabilitation and some special considerations that might arise if a person may be at 'the crossroads'.

47. The psychological assessment of the offender notes a history of childhood depressive symptoms, the treatment for psychotic episodes and treatment with antipsychotic and antidepressant medication including whilst he was in custody. The fact that the prisoner is engaged with a psychologist is to his credit. The psychologist administered a number of standard tests which are applied by psychologists and came to the conclusion that in terms of matters relating to the clinical symptoms and personality, a profile of the offender, he reflected distress levels associated with his concern about his approaching sentencing and likely incarceration but the result did not indicate the presence of a major mental illness.

48. No cognitive testing was undertaken, but it was thought that he had functional intelligence, displaying adequate reading skills, spelling and written expression across a couple of “crude measures” that were undertaken. His history of drug dependency and abuse is noted and as has been pointed out by the learned Crown Prosecutor, whilst he has largely ceased prescription and prohibited drug use, he seems to be still abusing alcohol on occasions and regularly drinking alcohol on other occasions and admitted recent use of cocaine, although from what I understand of the history he gave and it’s to his credit that he was prepared to concede this. It might never have been discovered otherwise. He has not been involved in systematic or regular drug use.

49. The psychologist made the conclusion that his background was through schooling and other factors less than advantageous. His functioning has been compromised as a result of multiple substance abuse and his offending has largely occurred in this context. He impressed as being at risk for emerging psychotic phenomena either through developing paranoid ideation or through drug relapse and that he needs to cease abuse of alcohol at hazardous levels. His incarceration will have some effect upon that. He is at high risk of drug relapse and hence the opportunity to undertake such programs as available within the custodial setting will be offered to him I trust although I have no control over that.

50. He has never participated in intensive drug and alcohol rehabilitation despite the fact that his previous incarcerations would suggest in the context of the offending that brought them about the need for that to occur. I have already pointed out, however, as the psychologist notes, he has taken positive changes and she said that he appeared “motivated to make positive changes” from what had been “his previous drug abusing trajectory”, the birth of his child being one such motivating factor.

51. It was recommended that he undertake supervision, perhaps rehabilitation programs on his release from parole. That will be entirely a matter for the Parole Authority. He does need assistance in relation to mental health counselling and treatment given past treatment by a psychiatrist and counselling from a psychologist. That is referred to in the report as “Mr Cavill” but who I am informed is Mr Ross “Calvi”. He also needs continuing strategies around anger management which is self evident from his criminal history of violence.

52. I have already referred to s 44 Crimes (Sentencing Procedure) Act. It follows from what I foreshadowed to the prisoner as to the sentence to be imposed, I have made a finding that there are special circumstances pursuant to that section. In my view, the offender needs an extended period of supervision to adjust to community living to receiving professional assistance in relation to preventing drug and alcohol abuse relapse and also to receive professional guidance in relation to treatment of his mental health and other psychological issues as well as assisting him to address anger management.

53. In sentencing the offender, obviously I have regard to the guideline judgment in Henry as I did on the occasion in the other sentencing exercise. I make specific reference to the criteria that were identified by the learned Chief Justice as being common criteria in the commission of offences summarised in [162] and the matters that were relevant to Mr Morgan are obviously relevant here. Although the prisoner had been in gaol before, I am prepared to conclude that his criminal history was one that did not aggravate the offending in the sense that it was an aggravating factor under s 21A(2) Crimes(Sentencing Procedure) Act.

54. I pointed out in the earlier judgment, of course, that there may be other factors which will arise in addition to the matters set out at [162] and they were identified by the learned Chief Justice at [170]. These are so-called aggravating factors, rather than those under s 21A which did not exist at the time of the Henry decision. Matters such as the intensity of the threat as occurred in this matter and the number of offenders involved in the commission of the offence and the like.

55. The general observations I have made about Henry pertinent to Mr Morgan can fairly be applied to this case.

56. I have taken into account all the submissions that have been put. Counsel for the prisoner has skilfully taken me to the material that he relies upon, much of which I have already cited. I accept by reference to the terms perhaps of s 21A(3) Crimes (Sentencing Procedure) Act that this is an offence with little planning, certainly not sophisticated planning.

57. In relation to the other mitigating factors that arise, the plea of guilty is a mitigating factor. I believe the prisoner has shown remorse, particularly, even though he did not give evidence, by the steps that I have already outlined taken to seek assistance in an understanding, or with insight, as to the reasons for his offending. Clearly the prisoner is not a person of good character and of course I could not conclude that he was unlikely to re-offend without taking further steps to avoid abuse of alcohol and the use of drugs, whether they be prescription or prohibited drugs.

58. His counsel in his submissions drew my attention as I have already noted to the history of polydrug abuse and the contributing factor of drug abuse to the commission of the offence and place much reliance upon the reports to which I have made reference, particularly the report of the psychologist, Ms Collins.

59. He is still it can be fairly said a relatively young man. He is 22 now. He is slightly older than the other offenders but they would appear really to be “peers” at the time of the commission of the offence and I have already analysed the submissions that were made about the issue of parity.

60. The learned Crown Prosecutor drew my attention to features of the matter that I have acknowledged in the course of the remarks I have made. The Crown conceded that it was a matter where a finding of special circumstances could be made. The Crown noted the steps taken by the prisoner in the progress of his rehabilitation and the distinction that might be drawn in that regard between he and Mr Morgan. The Crown noted, as I have noted, that Mr Morgan had less significant criminal history but then again as I said earlier, the Form 1 matter loomed large in his sentencing exercise to enhance what would be the otherwise appropriate sentence for the principal offence.

61. A sentence is not an exercise that leads to mathematical precision. There will always be varying factors in every sentencing exercise that I knowledge arise in this matter, particularly when one compares two offenders, even two offenders involved in the same joint criminal enterprise. Ultimately it is a question of determining what the justice of the situation demands and in this particular case, if Mr Morgan had absent the matter on the Form 1, the justice of the situation would have demanded that a greater sentence be imposed upon this prisoner.

62. The presence of the matter on the Form 1 which I hasten to say, although it follows as a matter of logic, was an offence committed after the commission of the principal offence by definition and was related to the principal offence, it significantly balances the ‘equation’, if that is the correct expression, that is to be addressed involving the comparison of the competing features of the case of this prisoner as against that of Mr Morgan. I hasten to say, of course, this prisoner’s criminal history would have been a proper basis for distinguishing him from Mr Morgan absent the matters I have already acknowledged.

63. Of course, the factors that go to the question of the fixing of the non parole period will, as I have pointed out, significantly vary between offenders. But again ultimately, on consideration of all the matters, the non-parole period for this offender should reflect the same adjustment of that period to the balance of sentence that I accorded Mr Morgan.

64. Hoping that I have taken into account all that has been put before me in the submissions and the evidence, I will move to sentence. Mr Weymark, if you could please stand.

65. In relation to the offence to which you pleaded guilty, you are convicted. You are sentenced to a term of imprisonment by way of a non-parole period of two years. That will commence taking into account the period of time you previously spent in custody on 1 January 2014. It will expire on 31 December 2015. I cannot direct that you be released to parole because that will be a matter for the parole authority. The balance of the sentence will be two years. The balance of sentence will expire on New Year’s Eve, 31 December 2017.

66. I do not propose to fix any conditions for your parole. That will again be a matter for the parole authority but they will have regard to my remarks on sentence - you can take a seat, thanks very much- in the usual way.

67. Yes?

68. KRISENTHAL: Just with regards to the recommendation for the compulsory drug treatment.

69. HIS HONOUR: What do you say is the way in which I should go about it?

70. KRISENTHAL: Your Honour needs to be satisfied that he appears to be an eligible convicted offender which means he has been sentenced to a non parole period between 18 months and three years and he has been convicted of at least two other offences in the past five years, he has not been convicted of some specified offences, attempt murder, sexual assault, fire arm or supply and manufacture offences, that he resides in the metropolitan Sydney. 

71. HIS HONOUR: He does.

72. KRISENTHAL: And that he is over the age of 18. Your Honour being so satisfied, your Honour then refers him to the Parramatta Drug Court for assessment for the compulsory drug treatment.

73. HIS HONOUR: Just bear with me. There is a formality I need to - I hear what you say. Just hold that word there. I have heard everything that you said and I accept up until the current point, he satisfies all the relevant criteria. I am sorry, Mr Weymark, I will just have to trust you to sit there. Just be patient. I will have to get Corrective Services to take you downstairs in a moment. Yes, thank you, I’m sorry, yes.

74. KRISENTHAL: Your Honour then refers him to the Parramatta Drug Court.

75. HIS HONOUR: Yes. Any objection to that, Madam Crown?

76. GOODWIN: No, your Honour.

77. HIS HONOUR: It’s a matter of course for the Drug Court, not for me but I am more than prepared to refer him to the Drug Court in those circumstances. The order would be expressed as having been satisfied that he satisfies all the criteria for the compulsory drug treatment program.

78. KRISENTHAL: As an eligible convicted offender.

79. HIS HONOUR: As an eligible - satisfies all the criteria for the compulsory drug treatment program as an eligible convicted offender.

80. KRISENTHAL: Thank you, your Honour.

81. HIS HONOUR: Mr Weymark, I am going to recommend, as your counsel has asked, that you be referred to the compulsory drug treatment program. I think that is held out at Parklea isn’t it?

82. OFFENDER: Yeah.

83. HIS HONOUR: But you will have to go to the Drug Court. There is another judge there that presides over the Drug Court. He will make a decision about your case. They probably will ask for my judgment in order to do that but the order will note that you satisfy all the eligibility criteria for the program and in those circumstances I recommend that you be considered for assessment for the compulsory drug treatment program as an eligible convicted offender. I have said that twice. I am hoping my Associate has written all that down and I will sign the order accordingly.

84. OFFENDER: Thank you.

85. HIS HONOUR: Yes, thank you. Just wait there, Mr Weymark, hopefully people in uniform will come rushing in here in a moment. Do you want to say goodbye to your partner before you leave? Ma’am, you can come forward and just say goodbye to Mr Weymark. You will see him again of course. You will see him no doubt in a few days time. Corrective Services will not allow this to happen. Just take a seat, gentlemen, I will be with you in one moment. Thanks for coming up. Thank you, Mr Weymark.

86. Gentlemen from Corrective Services, I have just sentenced Mr Weymark - just take a seat - to four years imprisonment with a two year non-parole period to start on 1 January because of prior custody and I have recommended that he be forwarded in due course to the Drug Court for consideration for treatment in the compulsory drug treatment program. I am signing the orders in a moment but he has been on bail in recent months. He is now remanded in custody, of course, and I will leave him in your tender care, thank you. He has been waiting patiently. Thank you, Mr Krisenthal for your assistance and thank you, Ms Clarke, nice to see you again. Thank you, Madam Crown for your assistance during the afternoon.

********

Decision last updated: 17 November 2015