R v Williams

[2022] NSWDC 608

District Court

New South Wales

Medium Neutral Citation:

R v Williams [2022] NSWDC 608

Hearing dates:

06 October 2022

Date of orders:

06 October 2022

Decision date:

06 October 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

(1) Specify a sentence of imprisonment of 4 years with a non-parole period of 2 years 8 months

(2) Pursuant to s 18B Drug Court Act 1998, by force of which the offender is an eligible convicted offender, refer the offender to the Drug Court to determine whether the offender is eligible and suitable for a Compulsory Drug Treatment Order

Catchwords:

SENTENCING — Penalties — Drug Court — Eligibility for program

SENTENCING — Penalties — Imprisonment

Legislation Cited:

Crimes Act 1900

Crimes(Sentencing Procedure) Act 1999

Drug Court Act 1998

Drug Misuse and Trafficking Act 1985

Cases Cited:

Amante v R [2020] NSWCCA 34

Callaghan v R [2006] NSWCCA 58

DPP(Cth)vDe La Rosa (2010) 79 NSWLR 1

Imbornone v R [2017] NSWCCA 144

Newman v R [2021] NSWCCA 101

RvMasters [2021] NSWDC 315

R v Qutami [2001] NSWCCA 353

Simms v R [2014] NSWCCA 286

Category:

Sentence

Parties:

Rex (Crown)
Justin Barry Williams (Offender)

Representation:

Allan Florance (ODPP Solicitor)
Adam Williams (Counsel for the Offender)

Director of Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)

File Number(s):

2021/00228376

REVISED EX TEMPORE JUDGEMENT

Introduction

1. Justin Barry Williams appears for sentence upon one charge contrary to s 195(1)(b) Crimes Act 1900. He is alleged to have on 9 August 2021 at Annandale in the State of New South Wales recklessly damaged by means of fire certain property, namely, the IGA store and property located at 47 Booth Street, Annandale, the property of Yang Liu, Martin Gan, and Alex Wang.

The Penalty

2. The offence shortly described as recklessly damaging property by fire, carries a maximum penalty of imprisonment for ten years. There is no standard non‑parole period for purposes of Part 4 Div. 1A Crimes (Sentencing Procedure) Act 1999.

Pre-Sentence Custody

3. He was arrested for the offence on 10 August 2021 and has been in custody since that time. However, at the time of the offence he was subject to parole, which was in the meantime revoked, and he served the balance of parole from 10 August 2021 until 14 November 2021, a period of three months and five days. The time spent in custody solely referrable to the offence is from expiry of the balance of parole until today. There is a question as to when the sentence I intend to impose should commence. I accept that I have discretion as to when the sentence should begin as discussed by Simpson J in Callaghan v R [2006] NSWCCA 58. Her Honour said at [23]:

“It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of the expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offence, the offender would not have been granted a second chance at parole.

24. However, I am also of the view that, particularly where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences.

25. Thus, I am of the view that the sentencing judge did have a discretion to make the sentences wholly or partly cumulative upon the sentence to which the applicant was, as a consequence of the revocation of parole, serving.”

4. The date of the offence of 9 August 2021 was relatively close to when the offender was released to parole for his prior misconduct and, considering the history of breaches to which I shall come, it is improbable that he would have been successful in a further application for release to parole but for this matter. This said, I find it is appropriate to backdate the sentence to commence at a time during which he was serving the balance of parole and I shall do so.

5. The sentence I impose today will commence on 10 September 2021.

6. I note that the revocation of parole included for an offence of stealing from a retail store that led to a period of imprisonment of ten days.

The Plea of Guilty

7. The offender pleaded guilty in the Local Court and, therefore, Part 3 Div. 1A Crimes (Sentence Procedure) Act 1999 applies. In accordance with s 25D(2)(a) of the Act he shall have a discount for the utility of his plea of guilty set at 25% of the sentence that would have otherwise been imposed if the offence had not been admitted.

8. The offender confirmed that he pleaded guilty in the Local Court and he adheres to that plea of guilty before me.

The Facts

9. It is correctly conceded on behalf of the offender that the misconduct that has him before the Court is serious. The subject premises is a supermarket conducted as an IGA store located at 47 Booth Street in Annandale. The front of the business is in Booth Street but the building extends to the rear lane, named Booth Lane. At that point there is a rear access with a roller shutter door. There is a loading dock there for suppliers to deliver products to be offered for sale in the supermarket.

10. The second floor of the building is predominantly an office space but there is an apartment above the store occupied by a Mr and Mrs Jordan. Access to their unit is by way of a door next to the roller shutter door. This is the only point of entry and departure to their premises.

11. The IGA supermarket staff stores bales of cardboard stacked outside the roller door of the premises for recycling collection, which took place once each week.

12. About 4.28am on Monday 9 August 2021 the offender was captured on closed-circuit television from a nearby residence. He was walking on Booth Lane near the intersection of Taylor Street.

13. He was talking erratically and stumbling along the footpath as he proceeded. He had a torch, moving it around as he walked along the lane. He came upon a bicycle laying unattended in the lane. He picked that up and then walked out of camera view with it. At 4.28am he was captured on closed-circuit television from the rear of Black Toast Café, which is located a 43 Booth Street, Annandale on the same side of the street as the IGA store. He was wheeling the bicycle. His clothing is described. He walked up the laneway with the bike. About a minute later her was seen with the bike in the vicinity of where the carboard boxes were stored outside of the roller door. He bent down and lit a flame on the carboard within a period of about ten to 15 seconds. He then was seen riding the bicycle back out of the laneway from the direction in which he had come.

14. At 4.41am smoke and flames were visible on the CCTV emanating from the vicinity of the roller door. Over the next several minutes the fire continued to build until the area was engulfed in flames. There was no one within the IGA stores, however, Mr and Mr Jordan were asleep in their home upstairs. About 5am they woke to the fire alarm. About 5.02am Mr Jordan called 000. They both observed a large amount of smoke and a glow coming from the rear of the property at street level, forcing them to exit their apartment by climbing out of their front windows onto the roof at the front of the store. She was 23 weeks pregnant and unable to climb down from the IGA roof and required assistance from the fire brigade once they arrived.

15. The Fire Brigade received an alert at 5.04am about the fire and arrived at the scene where they extinguished the blaze. One of the members of the fire brigade was taken to hospital for assessment for smoke inhalation.

16. The preliminary assessment of loss was that damage to the structure and for loss of rent extended to $629,000. The IGA tenant lost stock estimated at $287,000, including the treatment of stock and electrical equipment and disposal. The estimate for business interruption costs was $187,000. The store was closed between August 2021 and January 2022. The loss of contents, not including stock, was about $264,000.

17. A fire investigator examined the scene and made the following findings. There was a pile of rubbish alight up against the roller door. The roller door had greater fire damage to the right-hand side with severe oxidation. There was clean burn, also described as a burn with distinct and visible fire effect generally apparent on non‑combustible surfaces. Fire damage to the goods on the inside was greater closer to the roller door. There was charring to the mezzanine level. There were no ignition sources located in the debris. The point of origin of the fire was identified to be where the bales of paper were located on the kerb at the exterior of the roller door. The cause of the fire was an introduction of open flame to the cardboard and the fire was deliberate.

18. About 5.40pm on 10 August 2021 the police attended the offender’s address at Lilyfield. He was arrested and cautioned. Police identified clothing comparable to that seen on the closed-circuit television. They also saw a bicycle like that which was captured on that recording. He told police that he had taken a test for COVID-19 earlier in the day. He provided the police with a result of that by way of documentation, advising him to self‑isolate until he received a negative test result. Due to the isolation direction he could not participate in an ERISP at the station. The police asked whether he wanted to participate in an interview using audio equipment only and he agreed. He said during that interview:

1. “I know nothing about it”;

2. At or about 4am he was “here at home”;

3. The backpack was not his, but he uses the bag every day;

4. He could not say whether he had the bag with him yesterday;

5. The black shirt was his;

6. The blue shorts were his - he could not remember if he wore them the day before; and

7. The person in the CCTV was not him.”

19. He was taken to Newtown Police Station and charged. A forensic procedure for the purposes of photographing, buccal swabs, and fingerprints could not be conducted because of the COVID-19 status.

The offender

20. The offender has an extensive record of antecedents extending in New South Wales over 29 pages in the antecedent report included in the Crown bundle. He was born in 1972 but of note is that his first entry in New South Wales was in 1999 when he was 27 years of age. There is a record provided by Queensland Police which details a series of offences, including common assault, unlawful damage, and threatening violence from 8 September to 3 October 2017. This is some significant time after the commencement of his record in New South Wales.

21. This resonates with the opinions offered by the psychologist, Mr Borkowski, explaining the life history provided by the offender who deteriorated into the misuse of prohibited drugs over a period, it would appear because of inappropriate association. The offences in New South Wales for which he has been before courts are larceny, take and drive a conveyance without the consent of the owner, stealing from a person, goods in custody, entering inclosed lands, dishonestly obtaining financial advantage by deception, using a carriage service to harass, driving whilst disqualified, possession housebreaking implements, resisting an officer in execution of duty, larceny, drug offences.

22. There is no offence on his record comparable to that with which I am presently concerned. His offences, as was said to me, were toward the lower end of criminality generally, involving predominantly episodes of dishonesty and misuse of drugs. He had an offence of possessing an unauthorised prohibited firearm in 2020 for which he was sent to gaol as part of an aggregate sentence imposed in respect of that and other charges.

23. It is an extensive criminal history but, as was said to me on his behalf and with which I agree, when one analyses each of the episodes of misconduct, the offences are toward the lower end of the range of seriousness. It is the frequency and the period over which he engaged in criminal misconduct which is of a greater concern.

24. There is reference in the psychological report to his comfort in the custodial setting and the difficulty he is finding at large in the community. He has spent a long time in gaol during his adult life. The first period in custody was in November 2000 and he was paroled in November 2001. He was next in custody for two days in 2003 and then for another two days in 2008 and then it was not until March 2018 before he was sentenced to imprisonment. He was paroled on 31 July 2018 but was back in custody in August 2018. His sentence expired in January 2019.

25. He was taken in again in January 2019. That sentence expired in August 2019 and he was back in custody a matter of 21 days later until November 2019 when he was released to an intensive corrections order, but then in February 2020 he was in custody again until paroled in August 2020, then back in custody on 1 October, then 8 October, and then from November 2020 through to May 2021, then in May 2021 for two days, in July 2021 for eight days and then from August 2021 until the present time. There is sufficient in that custodial history to cause one concern that he might well be at risk of what is often referred to as institutionalisation because it would appear he is evolving into a pattern of finding comfort in controlled environments demonstrating an inability to cope when allowed at large.

26. There has been a series of reports dealing with breaches of parole.

27. The first of these is on 7 October 2020. He was then subject to a parole order made on 26 May 2020. He failed in his obligations by committing an offence for which he received a 12 months’ community corrections order with no supervision. The report said he had responded to supervision satisfactorily. He attended and engaged with Community Corrections. His criminogenic factors then were seen to be financial issues. He did not appear to be at an increased risk of re-offending. The supervision plan was continued and the author recommended that there be no action taken for the breach of parole.

28. The next report was on 18 November 2020. He was subject to the same parole order at the time. He committed further offences, namely, larceny and goods in custody. His response to supervision again was seen to be satisfactory. The similarity between the misconduct on this occasion and on previous occasions was noted. He did not appear to be an increased risk to community safety. A warning was recommended on this occasion.

29. The next report was 21 May 2021. This was in respect of a parole order dated 14 May 2021 which he breached by committing a further offence of possessing a prohibited drug. There was further discussion of his response to supervision, his supervision plan, and the recommendation was that no action be taken.

30. The most recent report that I have was written on 17 August 2021. The breach on this occasion is noted to be the present offence. His response to supervision is discussed. He maintained contacted as requested, reported as directed and advised of changes in his circumstances. He refused, however, to participate in any EQUIPS program but it was noted that there was no opportunity for him to do so in any event because of COVID-19 restrictions. Ultimately the recommendation was that the parole be revoked.

31. The only other report that I have was written on 3 February 2021. This is in respect of an offence of larceny dealt with in the Local Court at Burwood and when he had goods in custody. His current conditional liberty is discussed as were his circumstances, including that he was receiving a disability support pension before entering custody. He is a qualified electrician as discussed by the psychologist, to which I shall come. His extensive criminal history is reviewed.

32. He is attributed with representations that the offences there under consideration were committed for personal gain. He knew what he had done was wrong but he struggled to control his urges to behave in the manner which he described as kleptomaniac behaviour. Stealing was normal for him. He noted that his family and friends had ceased contact with him as a result of his ongoing offending. Substance abuse history was discussed consistent with what I have read elsewhere and he is willing to undertake intervention and supervision. He had limited insight with minimal remorse for his actions in respect of the offences there under consideration; the qualified response to supervision was noted.

33. He falls within the medium to high risk of reoffending and a supervision plan was offered. They are matters, of course, that will be for consideration by the parole authorities and end of the custodial component of the sentence I impose today.

34. There is included in the material before me proffered by the Crown a facts sheet for an offence of larceny against a Coles store at Burwood. It was a traditional shoplifting-type offence. Amongst other things, he was carrying a knife in his back pocket and the property taken is itemised in the facts sheet. It is of modest proportion. He told the police that he did not have money to pay for the items and that he was hungry. He said he obtained the knife from Coles but had unpackaged it and concealed it in his back left pocket. The total value of the items there stolen were $94.90.

35. The offender was assessed by a psychologist, Jason Borkowski, who provided a report on 4 October 2022. His opinion is based on clinical assessment, drawing upon the history given by the offender. There was no opportunity, as I understood the report, for psychometric testing. I note that the material was tendered by consent and the psychologist was not required for cross-examination and, although the offender did not give evidence before me, attracting the circumspection advised in authorities such as R v Qutami [2001] NSWCCA 353 and more recently in Imbornone v R [2017] NSWCCA 144 and the judgement by Wilson J, I am satisfied that the representations attributed to the offender are deserving of weight.

36. They are consistent when they are read carefully and reflect the evolution of this man’s criminality over his lifetime. He has not sought to minimise the seriousness of his misconduct. He has not sought to blame others. There has been some criticism of the approach to parenting taken by his mother and father but, ultimately, there is no criticism of their attitude to him. He simply recognises, according to what I understand was said of him, that he allowed himself to evolve into a pattern of drug use, beginning with cannabis, extending into amphetamines and then ultimately heroin and, notwithstanding that he had education and qualified as an electrician, at a relatively late stage in his life he deteriorated into the criminal pattern that is evident in his record, ultimately culminating in this serious matter that has him before the Court today.

37. He presented with no evidence of thought disorder or perceptual disturbance to Mr Borkowski. His father was old school, he said, strict, sometimes offering violence and physical abuse as discipline and punishment. Coming from that era it was not an unusual approach to parenting, frowned upon today but tolerated in years gone by. His father was said to be a good provider, worked full time, he drank but did not appear to drink excessively, but the relationship evolved such that he could not form a close paternal relationship and, over time, they generally drifted apart and have had minimal contact in recent years.

38. His mother was a good person, according to the offender. They got along well through his formative years. She also applied physical punishment as discipline. Both parents were disapproving of alcohol and drug abuse and they have distanced themselves from him due to his dysfunctional lifestyle throughout his adult life. He had a sibling who unfortunately died. His brother suffered fatal injuries in a motor vehicle collision in 2007. He has had several short relationships, but the most significant in his late 20s resulted in cohabitation with his partner, to whom he in due course became married; he was then in his early 30s. They have a daughter. He was estranged from her but there has been recent contact by her. She, by all accounts, is a person of good character contributing positively to the community.

20. He was socially active in his formative years. He fell into recreational illicit substance use in a pattern that is so often heard beginning with cannabis then leading to a negative trajectory into the array of prohibited drugs that are unfortunately available in the community. At 18 he began using heroin after embarking upon amphetamines when he was 15 years of age.

21. Most of his associates were users of illicit substances. He lost contact with all his past childhood social networks and, due to his dysfunctional lifestyle and substance abuse, he has really no support network available to him now.

22. He was educated to year 10 then qualified as an electrician. He has had various intermittent periods of employment. He suffered intermittently with depression and anxiety. He was prescribed Valium and antidepressants. He attended psychological counselling. At the time of the assessment he was receiving medication used to treat depression and anxiety and related conditions, which he said was helping him.

23. The substance use history is discussed in detail, beginning with cannabis, then extending to amphetamines which, in due course, were administered intravenously, and then heroin. He was prescribed methadone at age 24 and whenever he tried to reduce the use of that drug he relapsed into further heroin use and misconduct. He has been a regular use of benzodiazepines, including Rivotril, Xanax and Valium, which he took, he said, in big doses. When not under the influence of the drugs he said he feels flat, discontented, and unhappy with himself. He stopped using methadone but began to use alcohol excessively. He has attended five times at intensive rehabilitation programs but said that just does not work for him.

24. He remains abstinent in gaol. He said that gaol gives him routine and stability. He said that when he leaves gaol he has no one. He has nothing. He has no parents to talk to. The events leading to this offence included that, upon his release, he had no accommodation but could find a room to rent through an acquaintance he met through the methadone clinic. He found that arrangement to be reasonably stable but he said within a short period of time he relapsed into benzodiazepines in excessive quantities under the influence of which he would roam the streets at night with no real intention that he could identify. He said that “When on pills you don’t do things for a reason.”

25. He said at the time of the offence he had consumed a large quantity of Xanax tablets and for reasons he could not identify he decided to light several carboard boxes on fire. He said he does not know what his intention was setting those boxes alight but he maintained he had no intention for the fire to get out of control as it did. He could not say why he lit the boxes in the first place but recognised that he had been, to use his word, “stupid” in having done so.

26. There was no opportunity to administer psychometric questionnaires as part of this process but, ultimately, upon the clinical assessment, the diagnosis offered is a major depressive disorder with a polysubstance use disorder, severe. I observe that psychologists are generally not qualified to offer diagnoses, but I take that to be an assertion that he exhibited characteristics consistent with such diagnoses.

27. There is no reported exposure to developmental vulnerabilities, such as poverty, neglect, criminal or antisocial behaviour or illicit substance use. It appears that the deterioration with his parents was upon physical punishment used for discipline, as well as limited paternal nurturance or support. This said, his basic care needs were adequately met. During his formative years he was a reasonably well-functioning individual with no reported cognitive, emotional, or behavioural dysfunction of note in his developmental years. That is consistent with the later deterioration in criminal misconduct reflected in his record at a relatively mature age.

28. His drug history and misuse are discussed in terms as I have summarised so far. He ultimately, it is said, established a long-term depressive condition, causing low mood, negative cognitions, a sense of low worth and hopelessness, which continued to be exacerbated as his life continued along its negative trajectory; thus at p 8 of 13 it is written:

“As such, it appears to have got to the point of Mr Williams expressing resignation and hopeless, and a general low self-worth, as well as lack of confidence and the ability to be able to establish and maintain abstinence, or an associated stable or responsible lifestyle, and he described being in custody as the only place he can experience stability and security. To that end, when in the community, he continued to use drugs as a maladaptive coping strategy.”

48. The psychologist writes that the symptoms with which he presents are capable of management through combined cognitive behavioural therapy, psychosocial intervention, and pharmacological treatment.

Consideration

49. The offence is a serious one. I would place this about mid-range, perhaps a little above, on the scale of objective seriousness. It was said to me that one needs to consider that he has pleaded guilty to an offence of recklessness but that carries with it the implication that he adverted to the risk and, notwithstanding, proceeded along the path nonetheless. The offence to which he pleaded guilty is recklessly damaging by means of fire the IGA store and property located at 47 Booth Street, Annandale.

50. Thus, it must be assessed, in my view, on the basis that he intentionally started the fire, reckless as to the risk that it would spread to damage the building, including the residential premises on the above ground floor occupied by the couple to whom I referred.

51. His moral culpability must be assessed against his background. He deteriorated as, it would appear, a contributing member of the community to engage upon relatively low-level crime, culminating in this most serious example of criminal misconduct to be found on his record. Self-induced intoxication provides him with no mitigation but it does provide a context in which to understand why we have him in Court here today facing punishment.

52. The Crown provided written submissions to which is spoke. There are two iterations. The first was written on 4 October 2022. The objective seriousness is assessed upon the Crown’s submission, with which I agree, according to the amount of damage done and the cost of repair and restoration, the means used, and the disregard for public safety. Planning and motivation is of limited significance in this case. It was an opportunistic episode of misconduct. It could not be said upon the material I have that the Court could find that this was a planned exercise for some more nefarious purpose beyond merely setting fire to the cardboard.

53. The loss and personal stress caused is significant, perhaps extending to substantial. The potential of injury to the other occupants of the premises living upstairs is clearly a matter of significance. Fire can spread and the consequences can be profoundly serious and that is a matter that needs to be brought to account. It is fortunate that it was brought under control relatively quickly, but not before there was extensive damage caused, resulting in extensive loss to the business proprietor. The Crown concedes there is no evidence of significant planning. The quantum of the damage is noted and the effect of the plea of guilty acknowledging the elements of the offence is noted.

54. The Crown refers to the time spent in custody. The aggravating factors identified include the conditional liberty to which the offender was subject, that the fire was lit without regard to public safety; s 21A(2)(i) Crimes (Sentencing Procedure) Act is thereby engaged. There were multiple victims who suffered, thus s 21A(2)(m) of the Act is engaged. As to the conditional liberty, that does not increase the objective seriousness of the offence or the proportional sentence that otherwise should be applied, but it is does address questions of specific deterrence and prospect of rehabilitation that the Court must bring to account.

55. His plea of guilty is noted and I have already referred to the discount that will be applied. I also take the plea of guilty as some evidence of contrition and remorse, which I find considering the attributions by the psychologist gleaned during the consultation with the offender during which he did not, in my assessment, seek to minimise or justify in any manner the misconduct with which he is charged. I agree with the Crown’s submission that the line provided in s 5(1) Crimes (Sentencing Procedure) Act has been crossed and imprisonment must be imposed. No other outcome is appropriate.

56. In further submissions on 5 October 2022 the Crown referred to the criminal history, which disentitles the offender to leniency. I am reminded of s 21A(5AA) of the Act denying intoxication as a mitigating factor. The Crown concedes the context provided in the misuse of substances and his limited capacity to exercise judgment, to evolve motive, and plan conduct which, in the circumstances of this case, must be seen to have a measure of impulsivity. The Crown has reminded me of what was said by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1. The major depressive disorder and the polysubstance use disorder are matters that will impact upon the assessment of moral culpability.

57. He might be seen to be an inappropriate vehicle for general deterrence, but one must also bring into account the purpose of sentencing to protect the community from the offender, which counterbalances those considerations. The Crown submits that moral culpability is not significantly reduced in the circumstances of this case and the Court still must give appropriate weight to general deterrence. It is a balancing exercise. There must be some impact upon moral culpability, in my view, but I agree that it does not displace the impact of general deterrence as an appropriate consideration.

58. The Crown submits that the Court might take the view that there are no prospects of rehabilitation because he is unready and unable to take further serious steps in light of the continued offending, notwithstanding the conditional liberty and the further opportunities given to him when no action was taken for breach of parole, his self-induced intoxication at the time of the offending, the lack of success in other rehabilitation efforts, his limited confidence in his ability to stop using drugs, and the absence of any statement from the offender in which he might be seen to be asserting his willingness to participate in a rehabilitation program.

59. I am satisfied though that, considering his presentation and the risk of his devolving into an attitude that might lead to institutionalisation, I should find special circumstances, reducing the custodial component that might otherwise be applied. He does need, in my view, an extended period under supervision in the community but he will need to demonstrate whilst he is in gaol his ability to rehabilitate and build upon whatever progress he makes there if given the opportunity to be at large once more without committing further offences.

60. The submissions made on behalf of the offender were provided in writing and were addressed orally. It is conceded that all seven purposes identified in s 3A Crimes (Sentencing Procedure) Act are engaged. They all attract weight in this case. There must be general and specific deterrence. There must be recognition of harm. There must be appropriate denunciation and there must be a structure of the sentence that will do what it can to protect the community from further misconduct by the offender. It is conceded that the s 5 threshold has been crossed but the suggestion is that the offence falls below the point of objective seriousness identified by the Crown. I have already indicated my view about that.

61. The subjective case is discussed in some detail, drawing upon what was gleaned by the psychologist and by the opinions offered. I am reminded again of the impact of DPP (Cth) v De La Rosa ibid and that he might not be an ideal vehicle for general deterrence. Although, as I have indicated, there must be some weight attributed to that consideration, setting fire to premises, particularly those where people are living, cannot be condoned in any way, or be allowed to pass without appropriate comment on the need to discourage others from so engaging.

62. He pleaded guilty. The contrition exhibited thereby is noted. His criminal history is conceded. His prospects of rehabilitation are discussed and it is conceded that the Court would be circumspect. Commencement of the sentence, in accordance with the discretion I have discussed, drawing upon Callaghan v R ibid is noted and I am urged to find special circumstances.

63. Synthesising all those considerations, as I have indicated, I have come to the view the offender should have the benefit of a finding of special circumstances so that he will have some prospect of release into the community with appropriate supervision.

64. I note the authorities to which I was taken by counsel, including Newman v R [2021] NSWCCA 101, R v Masters [2021] NSWDC 315 and Amante v R [2020] NSWCCA 34 and Simms v R [2014] NSWCCA 286. These provide examples of sentences, but each case, as was noted, turns upon its own facts. There are circumstances and features of those cases which compare with the present matter but there are also differences. One needs to approach justice in any case on an individualised basis and, thus, the assistance those decisions have provided cannot overbear the proper assessment of the facts and circumstances upon which I impose sentence today.

The Sentence

65. The offender is convicted of the offence to which he pleaded guilty. I have allowed a discount of 25% to the sentence that would have otherwise been imposed to reflect the utility in accordance with the legislation. I impose a non-parole period of 2 years and 8 months commencing on 10 September 2021. He shall be eligible for parole on 9 May 2024. He will thereafter serve a balance of term of 1 year and 4 months, which will expire on 9 September 2025.

66. He thus has a little more than 18 months left to serve on the custodial component of the sentence. I am reminded of the Drug Court Act 1998 and particularly Part 2A, which provides for the compulsory drug treatment detention. Upon the application of s 18B(2) the Court has the duty to ascertain whether there are grounds on which the Drug Court might find the person to be an eligible convicted offender and, if so, to refer the person to the Drug Court to determine whether the person should be the subject of a compulsory drug treatment order.

67. The circumstances of this offender and the criminal history as accumulated allow the Court to conclude that he is an eligible convicted offender within the meaning of that term in s 5A of that Act. It provides:

“(1) A person is an eligible convicted offender if--

(a) the person is convicted of an offence, other than an offence referred to in subs (2), and

(b) except as provided for by subs (1A), the person has been sentenced to a term of imprisonment for the offence to be served by way of full‑time detention and at the time that the sentence was imposed--

(i) the unexpired non-parole period of the sentence was a period of at least 18 months, and

(ii) the unexpired total sentence was a period of not more than six years, and

(c) (Repealed)

(d) the person has a long-term dependency on the use of prohibited drugs (within the meaning of the Drug Misuse and Trafficking Act 1985) or other drugs prescribed by the regulations, and

(e) the facts in connection with the offence for which the person has been sentenced, together with the person’s antecedents and any other information available, indicate that the offence was related to person’s long‑term drug dependency and associate lifestyle, and

(f) the person satisfies such other criteria as are prescribed by the regulations.”

68. This offence is not one that is caught by subs 5A (2) of the Act.

69. I leave the exhibits on file for such purposes as the parties might require.

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Decision last updated: 07 December 2022