District Court New South Wales Medium Neutral Citation: R v Merheb [2020] NSWDC 385 Hearing dates: 24 June 2020 Decision date: 24 June 2020 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Aggregate term of imprisonment of 5 years 6 months with a non parole period of 4 years. Catchwords: CRIME - SENTENCE - aggravated break and enter and commit serious indictable offence - attempted break and enter with intent to commit serious indictable offence. Legislation Cited: Crimes Act 1900 (NSW), ss112(2) and 113(2) Category: Sentence Parties: Regina (Crown) Mathew Thomas Merheb (Offender) Representation: Mr Valerio (ODPP Campbelltown) Ms Chu (Solicitor for the offender) File Number(s): 2019/00350968 Publication restriction: Nil Judgment 1. Mathew Thomas Merheb you appear for sentence today in relation to two principal offences. 2. First, aggravated break and enter and commit serious indictable offence, namely, larceny knowing persons were present in the premises (Sequence 1). This involves a contravention of s 112(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 20 years' imprisonment and there is a standard non‑parole period of five years' imprisonment. 3. In relation to that first principal offence, you have asked me to take into account one matter on a Form 1 which I have certified, namely dishonestly causing financial disadvantage by deception. 4. Secondly, attempted break and enter a dwelling house with intent to commit a serious indictable offence, namely, larceny (Sequence 3). This involves a contravention of s 113(2) of the Crimes Act. The maximum penalty for that offence is 10 years' imprisonment. There is no standard non‑parole period. 5. In relation to this second principal offence, you have asked me to take into account one matter on another Form 1 which I have also certified, namely larceny. 6. The facts surrounding your offending are contained in an agreed statement of facts which, slightly recast by me as to style but not substance, can be summarised as follows. 7. As at October 2019 you were on parole for the offence of supplying prohibited drugs on an ongoing basis. 8. At some point in the early hours of the morning of 25 October 2019 you were on residential premises at Rosemeadow. Those premises were occupied by Mr and Mrs Campbell and their baby child. The couple had gone to bed on the evening of 24 October 2019 and their two motor vehicles were parked in the driveway of their home. 9. Mr Campbell had left iPhones that he used for his work in the lounge room of their house; and the house and car keys which he used were left on the kitchen bench. His work laptop was also left on that bench. 10. At about 2am on 25 October 2019 the alarm of one of the vehicles went off. This aroused Mr Campbell from his sleep and he went and saw that the internal garage door was open, the roller door for the garage door had been propped open, and the driver's door of one of the vehicles was ajar. He then went back inside the house. When he did, he noticed that his work laptop was missing as well as his work phones, the sets of house keys and car keys, and his wife's wallet - which had been taken from the baby's pram. 11. It was you who broke into that house through the garage by propping the door open, entering through the garage door, and taking those items from the house. 12. You are fortunate that you were not charged with attempting to steal the motor vehicle because, on the facts revealed to me, it would have been open to the Crown to charge you with that alleged offence. 13. All up, you stole from the Campbell's home the two iPhones that I have mentioned. They had a value - for the phone themselves - of $800 but, of course, they were far more valuable to Mr Campbell than that because they contained very important work records for him. Similarly, the laptop which was taken might have had a commercial value of $200 but, again, very valuable commercial work for Mr Campbell was contained on the laptop and lost to him. The car and the house keys all had to be replaced at a significant cost to the Campbell's and, of course, there was the considerable inconvenience to Mrs Campbell having to cancel all of her credit cards and reobtain them. 14. It is the break and enter by you of those premises, knowing that people were present, which constitutes sequence 1. In terms of its objective seriousness for an offence of its kind, it is somewhere equidistant between the middle and the bottom of the range. The matter on the Form 1 will result in a slight increase in the sentence for that first principal offence. 15. About three days after you committed that offence, you went to residential premises in Bradbury. In the early hours of the morning of 28 October 2019 you attempted to get into those residential premises. In doing so, you actually left the gate open of the backyard and the family's pet dog was able to escape. You were unable to successfully enter the premises but it would seem, although the facts are not clear on this, that you were able to steal a wallet - whether it was from within the house or within a motor vehicle associated with the house is not clear but it probably matters not. 16. In terms of its objective seriousness for an offence of its kind, it is also equidistant between the middle and the bottom of the range for an offence of its kind. By having regard to the matter on the Form 1 there will be no meaningful increase in the sentence for that second principal offence. 17. You were very clumsy in your efforts on 28 October 2019, Mr Merheb, because you left your fingerprints and your DNA all over the place and with your long criminal history it was not difficult for the police to match you to those fingerprints and that DNA. 18. You were arrested in connection with these two offences on 7 November 2019. 19. It was the committing these offences that was in part responsible for your parole being revoked - but it was not the only reason. You had failed to report to Community Corrections; you had failed to comply with reasonable directions from a Community Corrections Officer; and you had failed to participate in programs, treatment and interventions as required. 20. You are now 41 years old and you have been committing offences as an adult since 1997 on a regular basis. (You had committed offences as a juvenile as well but they are not to be taken into account for today's purposes). Many of the offences you have committed as an adult were break and enter or similar types of offences. There are also some offences of violence, receiving stolen goods, being carried in stolen cars, driving whilst disqualified and numerous drug offences. 21. The Crown has deliberately not submitted that your criminal history is an additional aggravating factor for the offending. 22. However, there is one significant aggravating factor for each of the principal offences and that is that you were on parole. 23. You did not give direct oral evidence in the sentence proceedings. Rather your subjective circumstances have been advanced through a psychologist's report which was tendered without objection. 24. You were born in Campbelltown. 25. When you were six years old, your parents divorced. Your mother seems to have been far from suitable for such a role, she being a long term alcoholic. But you fortunately remained with your father who seems to have been a good and decent man who did his best to raise you and your brothers and sisters. He eventually remarried and, although your relationship with your stepmother was not ideal, there is no suggestion of any inappropriate conduct by that lady towards you and your siblings. 26. At some point in your childhood - and in circumstances not clearly described in the psychologist's report and at an age not specifically identified in that report - you, apparently, were sexually molested. But what that meant, or amounted to, is not revealed. I do note, however, what was said by the President of the Royal Commission into the institutional abuse of children that acts which the Courts previously regarded as "low level" acts of sexual molestation of children can result in catastrophic consequences for children. It seems to me to be likely that that sexual abuse had some role to play in you going off the rails in your early teens because it was when you were 14 you started to use cannabis; at 15 you started to use speed; at 16 you started to use heroin; and in the last 5 years or so, you have started to use ice. 27. You have not engaged in any intensive drug rehabilitation programs in connection with your long term illicit drug use. 28. Now, in this context Mr Merheb, I have read what Mr Borkowski (the psychologist) wrote: that you acknowledged the need to engage in intensive treatment; and that you are willing to engage in treatment to address your issues. However, whilst you may have said that to Mr Borkowski, I return to why your parole was revoked. In the breach of parole report, your failure to engage with Corrective Services is made clear. I therefore do not give much weight to what you told Mr Borkowski because actions, Mr Merheb, speak louder than words - and you had an opportunity of engaging with the experienced community corrections officers to address your drug issues only as recently as when you were last on parole, and you did not. 29. I have also read in Mr Borkowski's report that you felt unable to cope at around the time you offended, that you relapsed to using ice, that you were homeless and had no money. The question I asked myself when I read that, Mr Merheb, was: why you did not raise any of those matters with your experienced parole officers who were precisely there to assist you in that regard? 30. When you left school at the end of Year 10 you did not engage in regular employment. But in your 20s, there was a period in your life when you had things under control. You were working as a concreter and a forklift driver. You were in a stable relationship from which two children were born. There is in fact a third child in the family but you are now of the opinion that you are not the father of that child - but you love that child as much as your own, and it would seem that they all play a very important role in your life. Perhaps they are the only positive things in your life because, after your 20s, your life fell apart again. Relationship failures led you to taking drugs again. 31. I have already indicated some aspects of Mr Borkowski's report to which I do not give much weight and I have explained why. I also look with some scepticism on your expression of remorse to him. You certainly did not take the opportunity of yourself expressing remorse in the witness box. And I also have regard to your punishment details in the Corrective Services history which indicate that, since you were arrested, you have engaged in numerous misconduct whilst in custody. 32. Your prospects for rehabilitation, Mr Merheb, are extremely guarded. 33. You entered pleas of guilty at the first available opportunity and you are entitled to a 25% discount for the utilitarian value of the pleas - but they were, of course, pleas entered in the face of strong Crown cases. 34. I intend imposing an aggregate sentence on you and therefore it is necessary for me to state the indicative sentences which underpin that aggregate sentence. 35. In relation to the first principal offence and taking into account the matter on the Form 1, except for your plea of guilty, the indicative sentence would have been 6 years and 6 months imprisonment. After the discount, the indicative sentence is 4 years imprisonment and the indicative non-parole period is 3 years and 7 months. 36. In relation to the second principal offence and taking into account the matter on the Form 1 except for your plea of guilty the indicative sentence would have been three years imprisonment. After the discount the indicative sentence is two years and three months. 37. It has been submitted on your behalf by Ms Chu that I should make a finding of special circumstances to vary the ratio of the non‑parole period to the head sentence. In this regard I shall make a very slight adjustment. 38. Another issue that has been agitated is when the start date should be. Ms Chu has submitted on your behalf that the start date should be the date of your arrest. The Crown has challenged that submission, saying that if that were so, then there would be no effective balance on parole served by you - and I agree with that submission. I have in fact given very serious consideration to setting the start date at 21 August 2020 (when the balance of parole expires) but, by having regard to totality, the start date will in fact be today. 39. Mr Merheb for the two principal offences, I sentence you to an aggregate term of imprisonment of 5 years and 6 months. 40. I fix a non-parole period of 4 years to date from 24 June 2020 and which will expire on 23 June 2024. 41. I fix a balance of 1 year and 6 months to date from 24 June 2024 and which will expire on 23 December 2025. 42. Mr Merheb, whether or not you are admitted to parole will be a matter for the parole authority. But if you continue to misconduct yourself in custody the way you have since you have been arrested, your prospect of being granted parole would have to be regarded as slim. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 July 2020