Regina v Caine FOX [2020] NSWDC 329

District Court New South Wales

Medium Neutral Citation: Regina v Caine FOX [2020] NSWDC 329 Hearing dates: 16 June 2020 Date of orders: 3 July 2020 Decision date: 03 July 2020 Jurisdiction: Criminal Before: Lerve DCJ Decision: Aggregate sentence – see paras [63]-[67] Catchwords: Crime – sentencing – aggravated break enter and steal – break enter and steal – dishonestly obtain financial advantage – deal with proceeds of crime – take and drive conveyance – drive manner dangerous in police pursuit – break and enter with intent – break enter and steal – form 1 – Bugmy factors Legislation Cited: Crimes Act, 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: The Attorney General's Application pursuant to s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146 Bugmy v The Queen [2013] HCA 37 Hampton v R [2014] NSWCCA 131 Hamilton v R [2016] NSWCCA 59 Hunter v R [2011] NSWCCA 141 Little v R [2018] NSWCCA 63 R v Niass unrep. NSWCACA 16 Nov 1988 Refaieh v R [2018] NSWCCA 72 Category: Sentence Parties: Regina Caine Fox Representation: Solicitors: Mr A Hanshaw for the Crown Mr D Wilson for the Offender File Number(s): 2019/40266 2019/57240 Publication restriction: No

REMARKS ON SENTENCE 1. The offender appeared at the Local Court at Wagga Wagga on 20 March 2020 and entered pleas of guilty to a multiplicity of offending as follows: H262471897 Sequence 3 Break Enter and Commit Serious Indictable Offence (Larcency) contrary to s 112(1) of the Crimes Act, 1900 Sequence 6 Dishonestly Obtain Financial Advantage contrary to s 192E(1)(b) of the Crimes Act; and Sequence 7 Deal with Proceeds of Crimes Contrary to s 193C(2) of the Crimes Act. H75050519 Sequence 1 Break Enter and Commit Serious Indictable Offence (Larceny), contrary to s 112(1) of the Crimes Act; Sequence 2 Take and Drive Conveyance Without the Consent of the Owner, contrary to s 154A(1)(a) of the Crimes Act; Sequence 3 Drive Manner Dangerous in Police Pursuit (2nd Offence), contrary to s 51B(1) of the Crimes Act; Sequence 6 Break Enter and Commit Serious Indictable Offence (Larceny) contrary to s 112(1) of the Crimes Act; Sequence 7 Break and Enter with Intent to Commit a Serious Indictable Offence contrary to s 113(1) of the Crimes Act; and Sequence 12 Aggravated Break Enter and Commit Serious Indictable Offence (Larceny) (Aggravating circumstances being persons present) contrary to s 112(2) of the Crimes Act. 1. There is also a charge of driving while unlicensed attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986. 2. The pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 5 June 2020 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty. 3. The maximum penalty for the offences contrary to s 112(1) of the Crimes Act is 14 years imprisonment. The maximum penalty for the offence contrary to s 192E(1)(b) of the Crimes Act (Dishonestly Obtain Financial Advantage by Deception) is 10 years imprisonment. The maximum penalty for the offence of Deal with the Proceeds of Crime contrary to s 193C(2) of the Crimes Act is 3 years imprisonment. The maximum penalty for the offence of Take and Drive Motor Vehicle contrary to s 154A(1)(a) of the Crimes Act is 5 years imprisonment. The maximum penalty for the Drive Manner Dangerous in a Police Pursuit (2nd offence) is 5 years imprisonment. The maximum penalty for the offence of Break and Enter with Intent to Commit an Indictable Offence is 10 years imprisonment. The maximum penalty for the Aggravated Break Enter and Commit Serious Indictable Offence is 20 years imprisonment. Parliament has specified a standard non-parole period of 5 years in respect of the Aggravated Break Enter and Commit Serious Indictable Offence charge. I acknowledge that I am engaged in a one-step instinctive process in which two of the principle guideposts are the maximum penalty and standard non-parole period. 4. Further the offender asks that when passing sentence in respect of the Aggravated Break Enter and Commit Serious Indictable Offence charge I take into account eight matters on Form 1 document. Those eight matters are comprised of two charges of Dishonestly Obtain Property by Deception, two charges of Unlawful entry on Inclosed Lands, two charges of be Carried in Stolen Conveyance, one charge of Intentionally Throw Object at Vehicle and one charge of Deal with the Proceeds of Crime. In dealing with these matters I will need to ensure that I properly apply the principles enunciated by the Court of Criminal Appeal in The Attorney General's Application pursuant to s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 otherwise known as the Guideline Judgment on Form 1 matter reported at (2002) 56 NSWLR 146. 5. The prosecution appropriately concede that despite the number of matters on the Form 1, the matters will have little practical impact on the sentence that is ultimately imposed. 6. Given the number of matters involved I will deal with the seriousness or gravity of each matter immediately after dealing with the facts.