R v X (a pseudonym)

[2023] NSWDC 344

District Court

New South Wales

Medium Neutral Citation:

R v X (a pseudonym) [2023] NSWDC 344

Hearing dates:

18 August 2023

Decision date:

01 September 2023

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

1. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 on the grounds set out in ss 8(1)a and 8(1)c of the Act, I order the name of the Offender be suppressed and in its place a pseudonym of X is to be used.

2. The publication of any matter contained within paragraphs [27], [38], part of [55], [67] and [68] of this judgment is prohibited.

3. For the Sequence 3 and 5 offences the Offender has pleaded guilty to, he is convicted.

4. For each offence, a sentence imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 for a period of 18 months’ imprisonment commencing on 1 September 2022 and expiring on 29 February 2024, with a non-parole period of 13 months, commencing 1 September 2022.

5. Offender eligible for parole on 30 September 2023.

6 Note: the Sequence 2 offence is withdrawn.

Catchwords:

CRIME – sentence – drug offences – custody – Offender subject to violent sexual assaults in custody – time in custody overlaps with remaining portion of earlier term of imprisonment

Legislation Cited:

Court Suppression and Non Publication Orders Act 2010, ss 7, 8(1)(a) and 8(1)(c)

Crimes Act 1900 (NSW), s 193C(2)

Crimes (Sentencing Procedure) Act 1999, ss 25D, s 21A(2)(j), 21A(3), 21A(3)(h), 21A(3)(i), 21A(3)(k), 22, 23

Drug Misuse and Trafficking Act 1985 (NSW) s 25(1)

Road Transport Act 2013 (NSW), s 111(1)(a)

Cases Cited:

Binnie v R [2010] NSWCCA 14.

Brown v R [2014] NSWCCA 335

Bugmy v The Queen (2013) 249 CLR 571

Cahyadi v R [2007] NSWCCA 1

Carmen v R [2006] NSWCCA 58

Commonwealth Department of Public Prosecutions v La Rosa (2010) 79 NSWLR 1

Johnson v The Queen (2004) 78 ALJR 616

Melikian v R [2008] NSWCCA 156

Moodie v R [2020] NSWCCA 160

Muldrock v The Queen (2011) 244 CLR 120

Parente v The Queen (2017) 96 NSWLR 63

R v Henry (1999) 46 NSWLR 346

R v McDougall (2002) 128 A Crim R 44

Vaovasa v R [2007] NSWCCA 253

Veen v The Queen (No 2) 164 CLR 465

Texts Cited:

“Dostoevsky Imprisoned: The House of the Dead, and American prison literature” - Los Angeles Review of Books 23 December 2019, by Ilya Vinitsky.

Category:

Sentence

Parties:

Rex (Crown)
X (Offender)

Representation:

Counsel:
J Ball (Crown)
G Brady SC, with A Faro (Offender)

Solicitors:
Office of the Director of Public Prosecutions (NSW)
Streeton Lawyers (Offender)

File Number(s):

2022/146458

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 on the grounds set out in ss 8(1)(a) and 8(1)(c) of the Act, the name of the Offender is suppressed.

Paras [27], [38], part of [55], [67] & [68] are to be redacted in the published judgment and the publication of any matter disclosed within those paragraphs is prohibited.

District Court

New South Wales

JUDGMENT

Introduction

1. HIS HONOUR: The Offender “X” has pleaded guilty to two serious drug related offences for which he was arrested on 20 May 2022. He was 30 years old at the time of the offending. He has been in custody since the time of his arrest.

Time in custody

2. At the time of his arrest, the Offender was serving a three-year Intensive Corrections Order (“ICO”) imposed by Judge Culver AO of this Court on 26 March 2021, which sentence was also for a number of very similar drug related offences.

3. In relation to the offences before me, the Offender has been bail refused since the time of his arrest.

4. Unsurprisingly, the State Parole Authority, as a result of these offences, revoked the ICO and the Offender has been serving the balance of his earlier sentence by way of full-time custody also since 20 May 2022.

5. The period of the sentence imposed by Culver DCJ expires on 25 March 2024, although it is a matter for the State Parole Authority Board whether the Offender will in fact serve the balance of that sentence in full-time custody.

6. The complexity caused by the coextensive term of imprisonment imposed in 2021, and the period that the Offender has been bail refused, and therefore in custody as a consequence of the instant offences, is something I will come to.

The Offences

7. The offences which the Offender pleaded guilty to in the Local Court at the first opportunity available to him, for which he is entitled to a 25% discount for the utilitarian value of those early pleas (s 25D Crimes (Sentencing Procedure) Act 1999) are:

Sequence 3: Deal with property reasonably suspected of being the proceeds of crime contrary to s 193C(2) Crimes Act 1900 (NSW).

Sequence 5: Supply prohibited drug contrary to s 25(1) Drug Misuse and Trafficking Act 1985 (NSW).

8. The sequence 3 offence carries a maximum penalty of three years imprisonment. The sequence 5 offence carries a maximum penalty of 15 years imprisonment – neither has a standard non-parole period specified.

9. There is also a Form 1 attaching to the charge of “supply prohibited drug”, which the Offender has asked the Court to take into account, that being:

Sequence 4: drive motor vehicle with illicit drug in oral fluid, contrary to s 111(1)(a) Road Transport Act 2013 (NSW) which carries with it a pecuniary penalty of up to $2,200 and an automatic disqualification of licence.

Agreed Facts

10. Set out below is a summary of the agreed facts.

1. At around 7.40pm on 20 May 2022, NSW police pulled a blue Subaru BRZ over for random breath testing on King Street, Newtown. The Offender was driving the vehicle and produced his license.

2. Police administered a random breath test, which returned a negative reading for alcohol.

3. A police officer observed large amounts of crystals in between the Offender’s legs and in the footwell of the vehicle. Police, suspecting the crystals to be methylamphetamine, placed the Offender under arrest for possession of a prohibited drug, and cautioned him.

4. The Offender denied having more prohibited drugs in his possession.

5. The Offender submitted to an oral fluid test, which produced a positive detection of methylamphetamine.

6. The Offender admitted to police that the substance in his vehicle was “ice” but denied that he was in the business of supply that evening,

7. Police searched the vehicle, and found white crystals scattered throughout the front footwell of the car, and in a clear resealable bag on the driver’s seat. Police also located another small resealable bag in the Offender's pocket, along with Australian currency consisting of 20 x $50 notes, 4 x $20 notes and 1 x $10, totalling $1,090 AUD.

8. Police located a coffee cup in the middle of the vehicle, which was half-full of coffee and had a number of crystals floating in the liquid. The Offender admitted to dumping an amount of methylamphetamine into the cup of coffee.

9. Police also located $69,080 in 10 bundles, in an express post box inside a green Woolworths bag in the vehicle.

10. The dry crystalline methylamphetamine seized totalled 15.1 grams.

11. There was 81.92 grams of methylamphetamine in the coffee cup.

12. The moist crystalline methylamphetamine recovered totalled 36.88 grams.

13. The total of the methylamphetamine seized was 133.9 grams (sequence 5 - supply prohibited drug >indictable & < commercial quantity).

14. The Offender provided a further sample of oral fluid for analysis. The sample was subsequently analysed and returned a positive result to methylamphetamine and 3, 4- methylenedioxymethamphetamine (Form 1 - sequence 4 - drive with illicit drug present in oral fluid).

15. The total money seized was $70,170 AUD (sequence 3 - deal with property suspected proceeds of crime).

Objective seriousness: some principles

11. The offences constitute very serious breaches of the criminal law as is demonstrable by the maximum penalties imposed by Parliament. The courts have repeatedly emphasised the importance of general deterrence in offences involving drug supply because of the need for protection of the community generally from the seriously detrimental impacts on society caused by the supply of illicit drugs – see for example Parente v The Queen (2017) 96 NSWLR 633, in particular at [109] - [111].

12. When considering the objective seriousness of drug supply offences, courts must take into account the Offender’s role, the quantity of the drug, the financial cost of the drug and the purity. The Offender’s role and level of criminality involved is more important in determining a sentence than the quantity of drugs involved, which is not the sole or even principal determinant – Melikian v R [2008] NSWCCA 156 at [42]; R v McDougall (2002) 128 A Crim R 44 at [33]

Objective seriousness

13. I turn now to my assessment of the objective seriousness of the offences.

14. I have received comprehensive and helpful submissions from both the Crown and Mr Brady SC, who with Mr Faro appeared for the Offender, as to this and other matters relevant to the sentencing process.

15. The Offender submitted that in relation to the supply a prohibited drug offence (sequence 5) that it falls towards “the lower end of objective seriousness but is not at the lowest end” – the Crown’s position is that the offence falls “just below the mid-range”.

16. As discussed in oral argument, I find the distinction between each party’s descriptor of the objective seriousness to be largely illusory.

17. I have set out the facts as I understand them to be. In my view, the best description is, as is common ground between the parties, that the offence is below the mid-range but probably not at the lower end of the range. Where in between those two positions is something, I find very difficult to identify and to try to do so would be wholly artificial.

18. As to the sequence 3 offence – deal with property reasonably suspected to be the proceeds of crime, the Offender submitted this falls “towards the lower end but not the lowest end”.

19. The Crown’s position is that the facts of this matter means the offence falls “below the mid-range of objective seriousness”.

20. Again, the difference between the parties’ positions is a matter of imprecise degree.

21. I am comfortably satisfied that the objective seriousness of the offence is below the mid-range, and I will proceed upon that basis.

22. As to the Form 1 offence, in my view, the seriousness of that offence is so overwhelmed by the far more serious nature of the other offences that I do not think it adds in any way to the overall criminality of the Offender, and whilst I will take it into account when coming to my ultimate decision, I do not think it productive to try and identify where on a range of seriousness it might fall. I take that matter into account when considering what is ultimately the appropriate sentence.

Aggravating / mitigating factors

23. As I said at the outset, there is a serious aggravating matter to be taken into account here.

24. The Offender was serving a term of imprisonment in the community pursuant to an ICO for the offences of commercial supply of drugs and receiving proceeds of crime at the time of committing the present offence. Pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, that is a specific aggravating factor which I must and do take into account.

25. There are some specific mitigating factors as identified by s 21A(3) of the Act which I shall mention briefly now and come back to when considering the Offender’s subjective case.

26. Firstly, I have concluded that the Offender has good prospects of rehabilitation (s 21A(3)(h)). Second, I find that the Offender has shown significant remorse and has given evidence which I accept, that he has taken responsibility for his actions and has acknowledged the harm done to others and the community generally by his behaviour (s 21A(3)(i)). Third, the fact that the Offender has pleaded guilty (ss 22 and 21A(3)(k)) does not only entitle him to a 25% reduction, but it is also evidence from which I conclude his level of remorse and contrition is high and his prospect of rehabilitation good.

27. [Redacted]

Subjective considerations

28. The Offender presents with an extremely compelling subjective case.

29. He is now 31 years old. From a young age, he witnessed regular domestic violence in his home, had a continually deprived upbringing, and from the age of 13 acted as his mother’s primary carer while she was battling cancer. These circumstances can properly be described, in my view, as a profoundly deprived upbringing, bringing into play the principles explained in cases such as Bugmy v The Queen (2013) 249 CLR 571 at [40] and [46].

30. The Offender has also been diagnosed with a major depressive disorder and post-traumatic stress disorder, no doubt in part the product of his experiences as a child.

31. I find that the Offender’s mental health condition contributed to the commission of the offence in a material way, although, it is one step removed from the direct cause which is his drug addiction. I find that that drug addiction was materially the result in part of his mental health issues, which are in turn a consequence of his deprived upbringing. Accordingly, I have concluded that there is sufficient connection between the Offender’s mental health and the offending for it to be taken into account as a mitigating factor. Moreover, I think his mental health impairments render him an inappropriate vehicle for both general and specific deterrence, moderating the weight I might otherwise give those factors. His mental health has also no doubt contributed to and will continue to contribute to the appalling experiences the Offender has had to date in custody which experiences, if there was ever to be a reason for him and the general public to be deterred from offences which might result in a prison term, will have had that effect already. I will return to the topic of his experiences in gaol shortly.

32. As Dr Pulley in his report of 12 August 2023 explained:

“The adverse conditions that the offender continues to experience in prison serve to exacerbate his mental conditions and increase the risk of recidivism.”

33. In reaching those conclusions, I have taken into account what is said in cases such as Muldrock v The Queen (2011) 244 CLR 120 at [53] – [54], [57]; Commonwealth Director of Public Prosecutions v La Rosa (2010) 79 NSWLR 1 at [177] – [178]; Binnie v R [2010] NSWCCA 14; and Veen v The Queen (No 2) 164 CLR 465.

Employment history / substance abuse

34. Against the background of his extraordinarily difficult upbringing and deprivation during that time, together with his mental health challenges, to the great credit of the Offender he managed to obtain qualifications in law, admission as and employment as a solicitor.

35. Unfortunately, at this time, he seems to have come under the influence of some members of the legal profession who, to say the least, were not conducting themselves in accordance with what one would expect of any lawyer. In short, they appear to have engaged in a campaign of bullying and harassment, sexual predatory conduct in relation to the Offender and introduced him to illicit drugs and, by example, “normalised” the taking of drugs. In my experience and judgment, young lawyers are profoundly influenced by the morals and ethics of those higher up in the legal hierarchy who they first work for. I find, in those circumstances, the Offender’s original decisions to take the drugs which led to his addiction was in the circumstances not wholly a matter of personal choice – R v Henry (1999) 46 NSWLR 346 at [273]. I think this reduces his moral culpability to some degree.

36. His continued attempts to become drug free is an acknowledgement by him that his offending is a direct consequence of his addiction. Combined with the positive steps the Offender has taken whilst in prison to further better himself, and obtain education in other fields (he obviously having lost his entitlement to practise as a lawyer as a result of his offending), together with his ongoing attempts to become drug free, I think his prospects of rehabilitation, which I otherwise would have found were significant, are increased – see for example Brown v R [2014] NSWCCA 335.

Remorse

37. The Offender has expressed to me and others what I consider to be genuine remorse, contrition and insight into his offending. This is evidenced by:

• His plea of guilty at the first available opportunity.

• His expression of remorse and contrition to me on oath in an affidavit which was not the subject of cross-examination or challenge by the Crown. I accept those statements unreservedly.

• The fact that Dr Pulley recounts expressions of remorse and insight.

• The many expressions of remorse to others which is in evidence.

38. [Redacted]

Onerous time in custody

39. The well-worn saying most often attributed to Dostoevsky that “the degree of civilisation in a society can be judged by entering its prisons” or, as it is sometimes recorded “a society should be judged not by the way it treats its outstanding citizens, but by the way it treats its criminals” is ubiquitous because it is self-evidently correct.

40. If it be a correct statement of the level of enlightenment or civilization a society has reached, the facts of this case lead me inevitably to the conclusion that New South Wales in the 2020’s is not a particularly civilised society, nor is it a great example of the consequences of the enlightenment. (For a discussion of the quotation and its potential authors, see “Dostoevsky Imprisoned: The House of the Dead, an American prison literature” - Los Angeles Review of Books 23 December 2019, by Ilya Vinitsky.)

Physical health issues

41. As well as his mental health issues, the Offender has a significant physical health problem caused by the application of a gastric band in bariatric surgery which to say the least has been unsuccessful.

42. He has experienced, whilst in prison, bouts of vomiting blood. His ability to obtain proper medical care for this condition has been significantly impaired due to his imprisonment, which does not reflect well on the way sick prisoners are treated in this State, although for reasons I am about to come to, it is probably the least of the system’s problem.

43. As a consequence of this, the Offender, for most of his time in custody, has lived on a diet of liquid meal replacements.

Covid

44. The Offender’s time in prison has also been greatly impacted in a detrimental way by Covid-19. Since 2022, 211 days of his time in custody has been spent in lockdown, which is something I can and will take into account – Moodie v R [2020] NSWCCA 160 at [144].

Violence / Sexual Assaults

45. The defendant has been the subject of repeated threats of violence, violent assaults and significant and prolonged sexual assaults as a result of which he has contracted Hepatitis C. Undoubtedly, these assaults have exacerbated the Offender’s post-traumatic stress disorder as observed by Dr Pulley in his 12 August 2023 report.

46. The Offender has not been able to wash in the communal showers because he has been targeted for repeated sexual assault, apparently because he is gay; and has therefore not been able to properly wash for most of the entire period he has been in custody; and finally, the Offender has on numerous occasions witnessed fellow inmates and friends being stabbed and assaulted.

47. Perhaps I am naïve but, in my judgment, it is an appalling indictment on our system that it seems to be commonplace and perhaps even accepted, but in an unstated way, that the punishment of full-time incarceration apparently carries with it, that whilst in gaol, at least vulnerable prisoners such as the Offender, will likely be subject to all sorts of forms of punishment which in an enlightened society should never occur.

48. I have sworn uncontested evidence before me as to what the Offender has experienced in gaol to date. That evidence is accepted by the Crown, as a representative of the Executive Government and people of the State of New South Wales. None of the lawyers in this matter seem in the slightest way surprised by what has happened. This all leads me to conclude that the experiences of the Offender are by no means isolated and perhaps can be described as commonplace if not systematic. How such conduct can take place in gaol in NSW in 2023, where the safety of all prisoners is the responsibility of the State, is beyond me.

45. Perhaps our society actually expects and wants prisoners to be treated in this way. If that be the explanation, then it would follow that it is implicit as a matter of statutory construction that a punishment described as a term of full-time imprisonment carries with it the real possibility of random acts of violence.

46. It is clear that this is not the case. The proper construction of the criminal statutes of this State leads me to conclude that it is Parliament’s intention that the most serious punishment available in this State is full-time imprisonment. It is the deprivation of liberty occasioned by the full-time imprisonment that is intended to be the punishment. In other words, my understanding of the law of this State is that people are sent to gaol as the punishment for their crimes. They are not sent to gaol to be punished by other unstated violent methods.

47. As a judge it is not my role to change the system. That is a matter for the Executive Government and/or or the State Correction Authorities.

48. All I can do is observe that the horrendous nature of the time the Offender has spent in custody to date means firstly, that I must give much more weight to the time he has already spent in custody because it has been so much worse than simply having his liberty restricted by being in gaol; secondly, I must take it into account when deciding how much longer the Offender ought spend in gaol; and thirdly, as I have already said, I take it into account when considering the prospect of the Offender being specifically deterred from reoffending because the prospect of him not wanting to return to gaol will in an ironic way be enhanced by the dreadful time he has had to date. I would also hope, if these reasons are published, that the general public understands that crimes that carry potential periods of full-time imprisonment, carry with them the real risk of punishment far greater than they might expect. If that has no impact as a method of general deterrence, then nothing will.

Positive conduct in custody

53. Like his ability to rise above his difficult childhood experiences, the Offender has, whilst in custody, been involved in employment, voluntary work and is the subject of a number of positive case notes reflected in his Corrective Services of New South Wales file.

54. He has completed a number of courses and programs in business ranging from business, librarian, custodial, animal care, entrepreneurial ship, grounds maintenance, and there are many more.

55. He has also been involved whilst in custody in intervention programs, Narcotics Anonymous programs and a course called “Ice and me”. [Remainder of para redacted].

56. His conduct in prison, despite his appalling treatment by others, and the apparent inability of the guards to protect him, demonstrates to me a profound desire by the Offender to improve himself, which leads me to conclude that his prospects of rehabilitation are greater than might otherwise be identifiable in this sort of case (without losing sight of the fact that the Offender has previously breached an ICO for the same type of offences).

Sentencing assessment report

57. There is a sentencing assessment report in evidence prepared by Rita Mastringelo dated 8 August 2023, which is largely consistent with what I have recounted above.

58. It confirms the remorse and insight to which I have referred, and also confirms the Offender’s willingness and ability to undertake intervention programs. It assesses him as suitable for community services work and deems him a “medium risk of reoffending”.

59. It puts forward a suggested supervision plan if the Court was minded to release the Offender into the community.

Prospects of rehabilitation

60. I am acutely conscious that the Offender has previously been the recipient of a lenient sentence which resulted in the ICO which had as a condition the attendance at rehabilitation type clinics, yet the Offender reoffended.

61. However, I don’t think that sad history can be looked at in isolation.

62. I am well aware that addiction is just that. It is extremely difficult for people to become drug-free once addicted. The fact that a person has tried and failed once, whilst not a positive note, is by no means determinative of what their ultimate outcome might be. Many people who have ultimately successfully become drug-free have, along the way had mishaps and missteps where they have, to coin a phrase “fallen off the wagon”. That does not mean that they cannot “get back on the wagon” and continue on what must be seen as an ongoing journey to a successful outcome.

63. In my view the Offenders prospects of rehabilitation are good if not better than good. My reasons include:

• The Offender’s history in seeking to better himself by education and job experience.

• The Offender’s prosocial attitude whilst in the prison sector.

• The fact that in my judgment, the offending is a direct result of his substance use and mental health issues, thus reducing in my mind his moral culpability. If he can get drug free, he will not reoffend.

• The fact that the Offender has strong family support.

• The Offender’s acceptance into and willingness to attend a further long term residential rehabilitation at “the Buttery”, which will be paid for by his family.

• The fact the Offender has already commenced significant rehabilitation steps whilst in custody.

• The other matters I have earlier mentioned.

Pre-sentence custody

64. As I said at the outset of these reasons, since the Offender’s arrest on 20 May 2022, he has served 456 days (one year and three months) in gaol. This is because he has been bail refused in relation to these charges, but also all that time has been served concurrently with the ICO sentence which the State Parole Authority revoked at the same time. The parties are in agreement as to the matter of principle, it is necessary for me to form a judgment as to how much, if any, of the pre-sentence custody I should take into account (either by backdating any sentence or otherwise) when determining an appropriate sentence in this matter.

65. I was initially a little perplexed as to this principle because it seemed to me that there are two separate and distinct reasons why the Offender has been in custody for that period of time which are unrelated.

66. However, authorities such as Carmen v R [2006] NSWCCA 58 at [21] – [23], and Cahyadi v R [2007] NSWCCA 1 at [27]; Vaovasa v R [2007] NSWCCA 253 at [15] and Johnson v The Queen (2004) 78 ALJR 616 at [18], make it clear that I must take a proportion of the time in custody into account because of principles of proportionality and totality, although of course, there must be some accumulation. The amount allowed for all of these factors appear to be a matter for my evaluative judgment after taking into account all relevant factors.

67. [Redacted]

68. [Redacted]

Resolution on sentencing

69. I have considered non-custodial sentences. Absent the earlier ICO and the Offender’s breach of it, I would have been minded to impose a sentence to be served by way of an ICO. However, I find myself unable to conclude anything other than the only appropriate form of punishment is a term of full-time imprisonment and therefore the threshold imposed by s 5 of the Act has been achieved.

Consideration

70. Section 3A of the Act prescribes the matters that I must take into account. Of particular moment in this case, to my mind is the need for specific and general deterrence, the need for punishment for the unidentifiable victims of these sorts of crimes, so that there can be some retribution, and in the prospects of rehabilitation, and the chances of the Offender reoffending.

71. I take into account and give significant weight to what I have concluded are the very good prospects the Offender has of successfully rehabilitating himself. In the context of this offender in these circumstances, rehabilitation means getting himself drug-free. To my mind it is obvious that if the Offender manages to become drug-free, he will not reoffend. On the other hand, if he fails and remains addicted, he will almost certainly reoffend. I think his prospects of becoming drug-free and rebuilding his life as a good member of the community are very positive.

72. I have also taken into account and given significant weight to the period the Offender has spent in prison already for the reasons I have explained. I have given much more weight to that time than I otherwise would because of the dreadful experiences he has had to cope with.

73. The fact that his offending is a direct result of his drug addiction, and an indirect result of his mental health issues is also relevant and important.

74. The Offender is entitled to leniency and consideration under the principles explained in cases like Bugmy and I have taken that into account and give it significant weight.

75. I have also taken into account and give significant weight to the findings I have made as to the genuine contrition and remorse of the Offender, demonstrated by his early guilty plea, his statements of remorse, but more importantly, the proactive efforts he has taken whilst in gaol to continue to improve himself and ready himself for release into the community, together with his positive desire to undertake a treatment program at “The Buttery” on his release or during any period of parole and beyond.

76. In addition to the above, I have taken into account and given very significant weight to the matters I have already referred to.

Conclusion

77. Doing the best I can, I have decided to impose an indicative head sentence for each count of 3 years.

78. Taking into account the principles of totality and proportionality in the context of the two counts, which to my mind represent no more than a continuation of the same criminality, I have decided to wholly accumulate those sentences, meaning I will impose a cumulative head sentence of 3 years.

79. The offender is entitled to a 50% reduction for reasons I have explained.

80. That reduces the aggregate head sentence to 18 months.

81. Again, taking into account the principles of proportionality and totality, I have decided to allow 1 year of the time the Offender has spent in gaol since 20 May 2022 as referable to these offences. After all, it is because of these offences that he is in gaol. This means that the starting point for term of imprisonment will be 1 September 2022.

82. This means that the aggregate head sentence I will impose is 18 months’ months’ imprisonment commencing 1 September 2022.

83. As to the period of the head sentence that should be served prior to the Offender being eligible for parole, if ever there was special circumstances as required by s 44 of the Act, it is this case. I therefore propose that the period of the sentence to be served under which the Offender is eligible for parole will well exceed the 25% starting point.

84. In all the circumstances, I think the Offender should be eligible for parole in relation to these offences in one month’s time (ie, 1 October 2023).

85. Whilst it is a matter for the State Parole Authority, I strongly recommend that a condition of the Offender’s parole is that he attend and complete a full-time rehabilitation program at “the Buttery”.

86. It is entirely a matter for the State Parole Authority as to whether the Offender must spend until March 2024 in full-time custody, serving the remainder of the term of imprisonment imposed by Culver DCJ. If he is not granted parole, then the entire period of the term which I propose to impose will have long since expired by March 2024. However, it is open to the State Parole Authority to release the Offender on parole in relation to the earlier offences and again, if they choose to do so (and I would hope they take into account some of the matters I have mentioned in these reasons), then I would recommend a condition of that parole being the full-time rehabilitation program that I have mentioned.

X please stand:

1. For the offences that you have pleaded guilty to, you are convicted.

2. For these offences, I impose a sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 for a period of 18 months’ imprisonment commencing on 1 September 2022 and expiring on 29 February 2024, with a non-parole period of 13 months, commencing 1 September 2022.

3. The Offender will be eligible for parole on 30 September 2023.

87. I note there was a “back up offence” of “possess a prohibited drug”) – Sequence 2. My understanding is that was a back up to Sequence 5 and I note it is withdrawn.

*****

Decision last updated: 01 September 2023