District Court New South Wales Medium Neutral Citation: R v Mongta-Kelly [2020] NSWDC 602 Hearing dates: 24-26 June 2020 21 August 2020 Decision date: 27 August 2020 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: Sentenced to an aggregate term of imprisonment of 9 years 6 months; non-parole period 5 years 3 months imprisonment. Referral to Drug Court for inclusion in Compulsory Drug Treatment Program at CDTCC Catchwords: CRIME – sentence – steal motor vehicle – break enter and steal in circumstances of aggravation – assault – destroy property by fire – totality of criminality – co-offenders – parity of sentencing – purposes of sentencing – extensive criminal history from age 10 – institutionalised – breach of conditional liberty - drug use – disadvantaged and dysfunctional background – Aboriginality – Bugmy principles– special circumstances – standard non-parole period – aggregate sentence – indicative sentences . Legislation Cited: Children's (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Attorney‑General's Application (No 1) (2002) 56 NSW 147 Bugmy v the Queen [2013] HCA 37 Callaghan v R [2006] NSWCCA 58 Harris v R [2005] NSWCCA 204 Huynh v R [2005] NSWCCA 220 Johnson v R [2004] HCA 15; 78 ALJR 616 Kentwell v R (No 2) [2015] NSWCCA 96 Mill v R (1988)166 CLR 59 Moffitt v R (1990) 14 NSWLR 114 Muldrock v R [2011] HCA 39 Munda v Western Australia [2013] HCA 38 Pearce v The Queen (1998) 194 CLR 610 Postiglione v R [1997] HCA 26 R v Henry [1999] 46 NSWLR 346 R v Holder & Anor (1983) 3 NSWLR 245 R v Jimmy [2010] NSWCCA 60 R v Lewis [2014] NSWCCA 1127 R v Ponfield & Ors [1999] NSWCCA 435 Veen (No 2) v R [1988] 164 CLR 465 Category: Sentence Parties: Regina (Crown) Daniel Lee Mongta-Kelly (Offender) Representation: Solicitors: Mr D Wilcox-Watson Mr P Carey File Number(s): 2019/00114627 2019/00097409 2019/00093320 Publication restriction: No Judgment 1. Mr Mongta‑Kelly appears for sentence today in relation to a large number of offences committed between 22 January 2019 and 6 April 2019. He pleaded guilty in relation to 15 counts on an indictment containing 19 counts in full satisfaction of that indictment. 2. Those counts to which he pleaded guilty comprise: Two counts of stealing a motor vehicle (counts 1 and 4) carrying a maximum penalty of ten years imprisonment. Three counts of breaking, entering and stealing (counts 2, 8 and 15) carrying a maximum penalty of 14 years imprisonment. Six counts of breaking, entering and steal in circumstances of aggravations, that is, being in company (counts 5, 7, 9, 10, 18 and 19) carrying a maximum penalty each of 20 years imprisonment with a standard non-parole period of five years imprisonment. One count of assault (count 12) carrying a maximum penalty of two years imprisonment. One count of destroying property by fire, to wit a motor vehicle (count 3) which carries a maximum penalty of ten years imprisonment, and two counts of taking and driving a motor vehicle without the owner's consent (counts 13 and 14), each carrying a maximum penalty of five years imprisonment. 1. There are also 13 matters on five Forms 1, most of which in respect of each Form are offences related to the principal offence attached to that Form although not in all cases. Some of the offences on the Forms 1 are minor, some however, are substantial. For example, there are two offences of aggravated breaking, entering and stealing each attached to a different Form. There are also offences of destroying or damaging personal property and larceny. There are also some relatively minor traffic offences. 2. The matters on the Forms 1 have been taken into account in relation to each relevant principal offence in accordance with the dicta in the 'guideline judgment' reported as, Attorney‑General's Application (No 1) (2002) 56 NSW 147, particularly at [18] - [44], as submitted by the prosecution. I should point out in relation to this matter I have taken into account all the written and oral submissions of the Crown and the oral submissions of learned counsel for the prisoner. 3. The prisoner pleaded guilty having initially entered pleas of 'not guilty' when arraigned to commence a trial by Judge alone at Nowra in June of this year. The pleas were entered three days into the trial after some negotiations leading to a few matters on the original indictment being transferred to particular Forms 1. This will be reflected in the prepared orders which will be provided to the parties after I complete my remarks on sentence. 4. I have had regard to the limited evidence at trial insofar as it is not inconsistent with the Agreed Facts, particularly CCTV footage tendered in respect of the offences committed on 22 January 2019 at Albion Park, as well as other material in the Crown bundle, including the prisoner's criminal history. 5. Criminal histories and remarks on sentence were available in relation to co-offenders, material from the Parole Authority, a Sentencing Assessment Report in relation to this prisoner, the Crown's written submissions, a custodial record and other material. 6. There was material produced by the defence. There is no psychiatric or psychological evidence. I have no explanation for this. The prisoner did not give evidence, but he prepared a letter which was tendered to the Court. His counsel told me that it was a letter prepared before he entered pleas of guilty. It had reference to his attitude to some of the offences and his belief as to the strength of the Crown case against him. This belief, if it was a belief held at any time, was completely misguided. Some of the offences are either directly connected or related in time. Counts 1 to 3 are concerned principally with essential offence of breaking and entering and stealing of a motor dealership at Albion Park on 22 January 2019. I saw CCTV footage in relation to the commission of this particular crime in count 2 and its commission is obviously related to counts 1 and 3. 7. Counts 4, 5, 7, 8, 9 and 10 are concerned with offences committed on the far South Coast between 26 and 28 February 2019. Counts 12 and 14 are also related in time and in relation to the same victim and along with counts 13 and 15, occurred in early to mid‑March 2019. 8. Count 18 which has five matters on a Form 1 attached to it was committed on 23 March 2019. The last count on the indictment, count 19, an aggravated breaking, entering and stealing was committed in early‑April 2019. 9. The prisoner was arrested on 21 April 2019 where he was charged with resisting a police officer in the execution of his duty and sentenced for that matter in the Local Court last year. 10. Counts 15 and 18, one a break, enter and steal offence, the other an aggravated breaking, entering and stealing offence, reflect repeat incursions into the same property. There are likewise examples of repeat incursions into the same property in respect of aggravated breaking, entering and stealing matters that have been placed on separate Forms 1 in respect of a business referred to in the facts as "O2 Motorsports". 11. As to the particulars of the offending there are eight breaking, entering and stealing offences, six of which are plead circumstances of aggravation and being in company. I have concluded that those offences with the standard non-parole periods can be assessed as each below the middle range of objective seriousness to varying degrees, notwithstanding Crown submissions in particular instances that particular offences were within the mid-range of objective seriousness (see s 54A(2) and s 54B(2) Crimes (Sentencing Procedure) Act 1999 hereinafter referred to as 'the Act' and Muldrock v R [2011] HCA 39, particularly at [20] - [30]). The High Court, dealing with different provisions under the Act, made clear, as is now provided for in the legislation, that the fixing of a non-parole period is not dominated by what the standard non-parole period may be, but the standard non-parole period is clearly a relevant consideration in fixing a non-parole period as a guide, subject to relevant legislative provisions such as ss 21A and 44 of the Act. 12. Although each of the offences involving breaking occurred at commercial premises where one ordinarily would expect greater reward, none of the offences could be said to have been conducted professionally. Nor were the offences particularly well-planned given on many occasions the absence of disguise, the rudimentary methods of entry to practically all of the premises, the leaving behind in various ways the indicia of identification. Of course none of the offending could be described as "spontaneous". But whether particular commercial premises were broken into on an opportunistic basis I am unable to say. I am not assisted at all by the prisoner in that regard. Certainly, that could not be in relation to premises that were the subject of repeat incursions. 13. It is to be noted from Mr Mongta‑Kelly's criminal history that he would appear to have considerable familiarity with not only the Shoalhaven area and the Southern Illawarra area, such as around Albion Park, but also with townships in the far South Coast where crimes were committed such as Eden and Batemans Bay, and places in between, such as Bega. 14. I point out that in the course of the short trial conducted in front of me, as I said, I had an opportunity to view CCTV footage of the accused. In my opinion, he is readily identifiable in relation to the Albion Park offences on 22 January 2019 when the prisoner was alone on that occasion and on another occasion related to the obtaining of alcohol from the liquor outlet on a later date I observed the prisoner acting confidently and assuredly in the course of the relevant offending, displaying on each occasion clear determination and showing no signs of being affected by drugs. 15. Of course the offences that I am concerned with, both principal offences and offences on the Forms 1, vary in intensity and seriousness having regard to the respective value of property stolen and or destroyed; the extent and amount of damage done in the course of offending; whether a particular offence constituted a repeat incursion which I have already identified in respect of particular businesses; and the use of the property afterwards where that evidence is available. 16. As the Crown submits the accused on all occasions that he was in company or committed offences in the course of a joint criminal enterprise, was an active participant in the relevant joint criminal enterprise. I note by reference to the helpful Crown submissions, which in my view are very fair and were not the subject of criticism by counsel for the prisoner, relating to the assessment of offences under s 112(2) Crimes Act 1900, the decision of Huynh v R [2005] NSWCCA 220 particularly at [27], to which could be added the decision, if my memory serves me correctly, from the same Judge in the matter of Harris v R [2005] NSWCCA 204. 17. In assessing offences that have standard non-parole periods I am not determining where an offence fits within the range of objective seriousness of offences of breaking, entering and stealing in company. I am required to be concerned where an offence can be assessed by reference to an offence pursuant to s 112(2) Crimes Act 1900. That section contemplates a range of circumstances of aggravation which are not all of the same level of seriousness in the context of the facts of the particular case and, of course, a range of serious indictable offences, many of which carry significantly greater maximum penalties than that for larceny. 18. The standard non-parole period is a guide to the determination of an appropriate non-parole period which must be fixed in relation to all sentences where there is a standard non-parole period provided but a non-parole period that is fixed having regard to all circumstances in the case. Not just where the offence sits by relationship to an offence in the middle range of objective seriousness. 19. I point out that one of the features of a number of the offences on indictment and on the Forms 1, for example, counts 1 to 3 involve deliberate damage to an external gate amounting to a total of $5,600 damage to the premises, then later, wanton destruction of a motor vehicle that was stolen for no apparent reason, other than I would have thought, destroying evidence that would link the prisoner to the breaking and entering offence or the stealing of the car, in circumstances where the prisoner could be readily identified from the CCTV footage, bearing in mind he did not take the trouble to be disguised. The Form 1 matters in relation to count 2 are matters intimately connected with the offending. 20. Counts 4 to 5, including relevant matters on the Form 1 pertinent to count 5, involve separate offending at two separate business premises in close proximity to one another, stealing substantially valuable items, two vehicles which could not appear to have any "negotiable" value, with a total loss at one premises, that is in relation to count 5, of well in excess of $35,000, two‑thirds of which was recovered on insurance. 21. I note in relation to that offending that the destroyed vehicle, a Mercedes "Transporter", as it is described at one point in the facts, which represents a major proportion of the loss, was the subject of deliberate destruction by a co‑accused who was charged in relation to that matter on a Form 1. In circumstances where this prisoner was not charged with that offence, therefore, he does not bear the responsibility for the destruction of the vehicle although he was involved in the stealing of it. 22. In respect of the loss to the owners, two‑thirds of the loss was recovered by insurance. Count 5, in my view in all the circumstances, represents the most serious of all the breaking and entering and circumstances of aggravation offences having regard to the value of the property stolen and the extent of damage to premises. 23. Count 7 was an offence involving theft of car keys, purportedly for future theft of cars, with damage to premises requiring payment of $12,000 excess on an insurance policy. The matters on a Form 1 are not insubstantial but are intimately bound up with the principal offence. 24. Count 8 involved some damage and a modest loss of property costing the business owners $700 in insurance excess. Count 9 was characterised by deliberate damage to gain entry to the premises, albeit rudimentary and amateurish, amounting to a cost of $2,000 and a modest loss of stock, being mobile phones and a DVD player with a value in excess of just over $1,400. These were clearly "negotiable items", that is, items that could be on-sold or provided to others for financial benefit. The Crown made the point that the premises were business premises. One was a Post Office that constituted a "public utility". I accept as a general principle that the targeting by breaking and entering of premises that are a "public utility" for that reason can increase the objective seriousness of the offending. This may be so in particular circumstances, but in my view not here. The objective seriousness of the offending in this particular instance is not increased by reason of the fact that it is a Post office, because I have no evidence that the prisoner and his colleagues deliberately targeted the premises because it was a Post Office as opposed to targeting the premises because they believed there were valuable items that could be stolen. They could have just as easily gone to the Telstra store down the road in Bega and committed the same type of offence and probably got away with more mobile phones. 25. Count 10 involved deliberate but rudimentary damage to the premises to gain entry and a loss of over $5,500 worth of property and stock. This property, largely clothing, was substantially not recovered. Although, if my memory serves me correctly, one of the co-accused, Mr Simpson, was wearing a T-shirt at the time of his arrest that had been taken from the premises. 26. Count 13, taking into account the matters on the Form 1, involved damage to vehicles to gain access to them, the repairs costing $3,000 and the taking of a reasonably valuable vehicle, having previously stolen its key on a prior incursion. That vehicle, however, was recovered undamaged. There is a related traffic matter on a Form 1. 27. Count 12 is an assault and count 14 is a related taking and riding of a motorcycle belonging to the victim of the assault. The taking of the motorcycle involved a brazen solo taking of the motorcycle from the retailer. As I understand the facts, the prisoner walked into the retail outlet bringing his own petrol to get the vehicle started. He rode off despite the protestations of the owner, but a short time later had not travelled far when the owner from his business premises had the opportunity to confront the prisoner resulting in the prisoner punching the victim while endeavouring to recover his own property. The motorcycle was recovered undamaged. 28. Count 15 was a solitary breaking and entering by damaging the front door with a brick, trying to open a safe which was locked, obviously not able to do so because the prisoner did not possess the skill or the means to open it and then the prisoner opportunistically stealing a "bar scanner" worth $2,000 which I take was not recovered, but could not have had any real value away from the premises. 29. Count 18 was an incursion into the same premises as count 15, this time in company. It included damage to the exterior entry points and damage in trying to remove the safe unsuccessfully and the theft of another barcode scanner. There is a Form 1 for this offence, including offences of breaking, entering and stealing; breaking, entering and stealing in circumstances of aggravation; damage to property, a roller door, to the extent of $2,500; and the damaging of vehicles that were illegally used to the extent of $4,500. 30. These are substantial offences. Each offence demonstrated on the part of the prisoner the determination by him to achieve his ends. The matters on the Form 1 as I said are matters of substance and require, in my view, greater weight to be given to retribution and punishment than might otherwise have occurred if count 18 had stood alone. This is in accordance with the guideline judgment. 31. Count 19, the last offence in time in April 2019, involved the theft of a small amount of property and cash, but deliberate damage to the front door of the premises. The lack of sophistication of this offence as with many of the other offences is reflected in the means of entry. I also note the unsophisticated means of access to the property, the offender and his co-accused riding their pushbikes at the scene of the crime as opposed to some form of getaway car. 32. In relation to all the breaking, entering and stealing matters, of course, I have regard to the learned judgment of Grove J in the decision of R v Ponfield & Ors [1999] NSWCCA 435, properly referred to by the Crown in his written submission. I have had regard to the additional matters his Honour identified other than those from his Honour's judgment three or four years later, to be incorporated into what is substantially the current s 21A(2) of the Act. The reflection of his Honour's writings in Ponfield in the later Crimes (Sentencing Procedure) Act 1999 reflects much of his Honour's considerable wisdom and erudition, not to mention his perspicacity. 33. There are several co-offenders who have been dealt with by this Court and the Local Court. But the principal co-offenders for parity purposes, in my view, are David Simpson who pleaded guilty on indictment to four counts that correspond with counts 5, 7, 9 and 10 of the current indictment and a younger man called Jay Brook, who by reason of some plea negotiations pleaded guilty to a range of different offences in some instances, but are concerned with the same criminality to which Mr Simpson pleaded guilty, and to which this prisoner has pleaded guilty in respect of relevant counts. 34. I sentenced David Simpson to five years imprisonment with a non-parole period of two years six months imprisonment last week. Jay Brook was sentenced at the Bega District Court on 5 December 2019 to an aggregate sentence of seven years imprisonment with a non-parole period of four years. I should point out in relation to David Simpson that his sentence was an aggregate sentence and although I did not specifically refer to this issue in my summary of reasons in relation to him, clearly, I took into account the totality of the criminality as I do in this particular matter. 35. Mr Brook was a year younger than Mr Simpson, who is younger than this offender. My reasons for distinguishing between Mr Brook and Mr Simpson to the favour of Mr Simpson are set out in my earlier judgment and I will not repeat them in detail, but they include matters such as, notwithstanding his youth, Mr Brook's worse record, the fact that he was on parole, whereas Mr Simpson at the relevant time was subject to a Community Correction Order. Her Honour, Acting Judge Latham SC, failed to refer to Bugmy principles which clearly must have been relevant to Mr Brook as they were to Mr Simpson, given that Mr Simpson was an Aboriginal man and Mr Brook was his cousin. This offender, however, is older than both offenders, has a much worse criminal record than Mr Brook and Mr Simpson and was subject to parole in respect of three separate offences at the time of his offending. The other significant difference between this offender and the other two offenders is that I concluded, that Mr Simpson was entitled to a discount of 25% upon the otherwise appropriate sentence. 36. The offender's pleas of guilty in this matter occurred at a late stage. Pursuant to the terms of s 25D, the Crown submits, and correctly so, that the greatest discount that the accused can receive in relation to each of the pleas of guilty is 5% and he will be accorded that discount. It is to be fairly said that the prisoner's attitude to the litigation, taking into account the lateness of the pleas, notwithstanding the fact that pleas may be some evidence of contrition, does not present a situation where I could find favourably, pursuant to s 21A(3) of the Act, contrition or remorse as a relevant mitigating factor. 37. Insofar as there are common counts or offending between this prisoner and other offenders that have been sentenced, parity of sentencing of course is a relevant matter to be taken into account in considering the appropriate penalty for this offender where there are such common counts. I expressly adopt the references I made in the sentencing of Mr Simpson, to principles set out in decisions such as the High Court's decision of Postiglione, [1997] HCA 26, and the Court of Criminal Appeal decision of R v Jimmy [2010] NSWCCA 60 particularly the statement made by Rothman J in that judgment concerning the relationship of parity of sentencing to "equal justice" and the requirement to treat alike alike and the unalike unalike to the extent of their unalikeness on reasonable and rational grounds. There is also a decision of the High Court referred to, quite properly by the Crown, that I take into account of Green v The Queen (2011) CLR 462, particularly at [28], which does not in any way detract from the decision of, for example, Dawson and Gaudon JJ in Postiglione. 38. There are two other co-offenders, one co-offender in relation to count 18 in the current indictment and the other co-offender in respect of count 19. Whilst the penalties imposed upon those offenders are not irrelevant, bearing in mind they were sentenced in the Local Court not in the District Court and that one of them received an aggregate sentence in relation to the connected offence as well as other offending, determines that the sentences imposed on those offenders are not significant for "parity purposes." They do not have the same salience as the sentences imposed in the District Court in respect of Mr Simpson, to a greater extent than that of Mr Brook. 39. In the context of the consideration of parity in respect of this offender there are important matters to identify distinguishing him from those other offenders that have been dealt with in the District Court. Firstly, as I said, this offender has by far the worst history of criminal offending, particularly for offences of like character, than of all the co-offenders. I appreciate that his criminal history is a reflection of his social disadvantage to some extent. The truth of the matter is, however, that his criminal history also reveals that he has ingrained habits of anti-social and dishonest conduct which up to the present time, he has displayed no inclination to abandon. I do note that most of his offending has been dealt with in the Local Court or the Children's Court. I conclude that the seriousness of the offending with which I am now concerned represents a substantial escalation in the character of his criminal conduct. 40. He was born in November 1997. It is sad to report that his first appearance in the Children's Court occurred at the age of 10 at the Eden Children's Court. From then on there are regular appearances on many occasions in the Children's Court for breaking and entering and stealing type offences and other offences of dishonesty resulting usually in Control Orders, although some resulted in community based orders. In every example of a community based orders, they were ultimately revoked to be replaced by further control orders. Many of the appearances in the Children's Court are in the far South Coast. In fact, there is an extraordinary number of offences relating to his appearances in the Children's Court between the ages of 10 and 12. Some offending was serious and it is very disturbing that this should be the case considering his young age and the number of offences that were committed. He was first sentenced to a term of "imprisonment" only four years ago at the Batemans Bay Local Court in March 2016. Then he was sentenced to two years imprisonment with a non-parole period of 18 months for an offence of breaking entering and stealing. He also received other sentences a short time later at the Batemans Bay Local Court, this time two years imprisonment with a non-parole period of 12 months. He appealed to the District Court in respect of the 18 month non-parole period and it was varied to 12 months non-parole in accordance with the other existing sentences from the Local Court. 41. He appeared at the Nowra District Court on 17 December 2017 in respect of an aggravated breaking entering and stealing apparently committed two years earlier and was sentenced to 16 months imprisonment with a non-parole period of seven months and 19 days, reflecting a finding of "special circumstances" plus an opportunity for him to be released to parole ten days later to enter a drug and alcohol rehabilitation centre. This arrangement was apparently unsuccessful. In April 2018, he was sentenced to 18 months imprisonment with a non-parole period of six months for two offences of assaulting police officers, stealing from a person and resisting police. These matters were dealt with at the Nowra Local Court. While serving that sentence, he was sentenced in the Sutherland Local Court on 12 September 2018 in respect of an "aggravated breaking and entering dwelling" offence to 24 months imprisonment, with a non-parole period of 16 months purportedly to conclude on 16 October 2019. 42. If it had concluded then he would not have committed the current offences. But that sentence was varied in the District Court in January 2019 with a reduction of the non-parole period to permit his almost immediate release to parole to permit him, according to the criminal history, to attend an Aboriginal Drug and Rehabilitation Program near Brewarrina, which again the prisoner did not do. Although he did have cursory contact with Oolong House, an Indigenous drug and alcohol rehabilitation centre which I have visited on a number of occasions at Nowra. 43. In fairness for the prisoner it seemed to be distinctly unfair to be requiring him to travel to different "country", to people with a different culture so to speak, in an area of New South Wales quite remote from where he grew up. It is a constant problem for Aboriginal people across the State of New South Wales that when they are required to attend drug and alcohol rehabilitation programs regularly, such programs are not immediately adjacent to where family and "country" are located. 44. In 2018 there were a number of other sentences of imprisonment for matters of dishonesty and violence which apparently run concurrently with the sentences I have already outlined. Consequently it should be pointed out the prisoner was on parole at the time of the offending with which I am now concerned in respect of three separate sentences imposed in 2018, including, I hasten to say, a sentence varied on appeal in the District Court. 45. These breaches of conditional liberty constitute aggravating factors of the same type of course pursuant to s 21A(2) of the Act. It is not the first time he had been on parole and the evidence in the Crown bundle shows that the parole to which he was released in January 2019 was revoked within a very short time of that release to parole, and in fact, during the time of this offending. 46. I note his counsel's explanation for that earlier revocation being the fact that the prisoner had attended Oolong House and returned a "dirty urine" on his first urine analysis and was then afraid that his parole would be revoked, ceasing contact with the program and the Parole Authority. That having been said, the course of further offending inevitably would have required revocation of his parole as he well knew. 47. I have taken into account the fact that he had a "dirty urine" reflecting an early return to drugs on his return to the community. But it also should be said that it does not instill much confidence in his future capacity to avoid drug use given the opportunity. In fact the criminal history reflects opportunities being given to the prisoner contrary to his assertion to address his drug use which he has never attempted to seriously engage. 48. It seems clear that, notwithstanding his statements to the contrary and the note that he wrote to the Court, that he really has no interest nor capacity to address any drug misuse issues which I accept have contributed in some way to his offending. But of course, drug use is not a mitigating factor in relation to a consideration of offences of this type, as was held in relation to armed robbery in the decision of R v Henry [1999] 46 NSWLR 346. 49. I am mindful though of what Justice Wood said at [273] in Henry, but in this particular matter, whilst I accept his drug use can be related to his social circumstances, many of which are beyond his control, I could not conclude that the prisoner is "at the crossroads". 50. In fixing a commencement date for the sentences to be imposed, I bear in mind the prisoner has been required to serve part of a balance of parole. The Crown informed me that the balance of parole served ran from 21 April 2019 to 16 June 2019 which is a relatively short period of time. But I also note from an examination of the criminal history that the prisoner was convicted of resisting a police officer in the execution of his or her duty on 21 April 2019 the date of his arrest in relation to the current matters. He is not a man who would go quietly I would imagine. 51. He was sentenced to a term of imprisonment of one month commencing on 23 July 2019 expiring on 22 August 2019 during the period of time that he has been on remand in custody. 52. I would have been inclined without that information to commence the sentence that I impose from partway through the balance of parole period which is as I said is relatively short so as not to effectively create "double dip" upon the substantial aggravation of committing these offences while subject to conditional liberty including conditional liberty for like offending, (see Callaghan v R [2006] NSWCCA 58 per Simpson J). However, noting the sentence for the resist police officers matter which is separate offending, I have concluded the sentences I impose should in fact commence on 16 June 2019 to reflect the reality of the situation. 53. The prisoner's criminal history of course is not one that entitles him to any particular leniency beyond of course recognition of the fact that his criminal history is a reflection of his upbringing and background some of which I am prepared to accept is clearly not within his control. I have had regard as the Crown properly reminds me to the decision of the majority of Veen (No 2) [1988] 164 CLR 465. I am also mindful of course of what the Crown says that the prisoner has in his criminal history demonstrated an ongoing attitude of disobedience of the law. But as I said, this aspect of the matter as I will discuss at some greater length in a moment, very much reflects matters of background, some of which are beyond his control. 54. The prisoner's note to the Court had been typed very helpfully by the secretary of counsel for the prisoner I assume. It was provided to me in handwritten form and typed form. 55. The prisoner declined to give evidence. Some of the matters raised in that note must be approached with some circumspection. I accept the prisoner, being an indigenous Australian has a background of disadvantage and dysfunction reflected to some extent in his anti-social criminal conduct from a very young age. But the exact connection of these two matters must remain something of a matter of speculation without more evidence. 56. I did try through his counsel to have the prisoner understand that I just could not simply act upon the prisoner's say so, particularly relying upon unsworn, untested representations not the subject of cross-examination. He raised matters in his note that might be confirmed by issue of subpoena to the appropriate authority, including making inquiries of the current equivalent of what I understood to be the Department of Family and Community Services. The prisoner was consulted by his counsel but declined that opportunity. I made a point of mentioning that issue again at the conclusion of the proceedings last Friday. 57. Thus, matters of evidence that may have confirmed at least some of the assertions of the prisoner cannot be examined. The prisoner said that he came from a very large blended family with 16 children, which I am prepared to accept, but he said at an early age he was removed from his family "and put into refuges with people that I have never met before". Whether this was true or not and the circumstances of his removal and where he was placed and the precise detail of it would be the subject of record by the relevant authorities. He said it was in this context he was introduced to "drug abuse and neglect". 58. Of course, the precise circumstances of this situation I do not know without further information that goes beyond what the prisoner himself says. 59. Whilst his criminal history might support some of these assertions, the detail is denied to me. He made the claim that what happened to him was "similar to the stolen generations". It is impossible in the absence of more reliable particulars to make any comparison whatsoever between this prisoner's situation occurring between 2008 and 2020 with the circumstances of children who were removed from their families throughout the 19th century and the 20th century up until 1971 under totally different laws long repealed and the subject of considerable discussion in the reports of the Royal Commission into Aboriginal Deaths in Custody conducted between 1988 and 1991 for which I had the privilege to be Senior Counsel assisting. The prisoner makes the claim that he has never been given any chances of life, "only gaol time". 60. His counsel in his oral submissions principally relying upon these representations by his client in the document and the prisoner's criminal history points to the prisoner's "institutionalisation" arising from his frequent incarcerations since the age of ten or shortly after. 61. It is to be fairly said it is a deeply disturbing situation that this has occurred. But whether the prisoner's misconduct on many occasions from a very young age is primarily a consequence of his environment or a reflection of a personality disorder or some other inherent cause is impossible to say. The prisoner asserts, "I've never been offered rehab, ICO orders or anything in the community so I can address my offending, drug use and homelessness." 1. He has had limited opportunities with community based sentencing orders, even at a very young age, that is to be noted. But he has not taken what few opportunities have been given to him. 2. In any event, I cannot ignore the sentencing regime for young or very young offenders in the last 12 years by operation of statute and practice does not usually involve the practices of cruelty that were inflicted on children for many years up until the introduction of the current Children (Criminal Proceedings) Act 1987. A number of the conditions of his past parole reflected in the criminal history suggest to the contrary of his assertions. His frequent parole violations reflect an inability or an unwillingness to comply with the requirements of parole directly seeking to address particular issues such as drug dependency. Again, in fairness to him, I am not sure that sending him up to Brewarrina was necessarily a wise order. 3. The prisoner complains that his frequent incarceration has led to many "birthdays and Christmases" in custody, missing family funerals and the like. This of course may be true. But it is intimately bound up with the complex issues of his background and disadvantage, his antisocial attitudes, his criminal conduct, the limited opportunities available for courts to deal with an offender of this type with this level of offending, and of course the exhibited unwillingness in the prisoner to seek assistance or change his behaviour. The truth of the matter is it is just not possible to consider a community-based option for offending of the totality and the seriousness with which I am now concerned. That has long passed. 4. It is correct to say that the attitudes of the prisoner have been fashioned by social forces not entirely within his control or, perhaps to put it another way, beyond his control, and it is to some extent reflected in the Sentencing Assessment Report prepared on 17 August 2020. It reflects upon the fact that the prisoner's performance in custody has been poor in recent times, although his counsel from the bar table disputed that his client was currently housed in segregation and he pointed out that since the prisoner had been moved from Goulburn gaol to Parklea there had been considerable improvement in his situation. I am prepared to accept this is so. 5. The report of the Community Corrections Service reflected upon his limited education. The prisoner has only had formal schooling to year 5, a point made by the prisoner in his letter to the Court. I accept the prisoner has had limited education through no fault of his own, a fault which must lie in the hands of others. He has never had employment, although whose fault that is it is difficult to say. There can be no shortage of employment on the South Coast I would have thought, even in COVID times. Much of his life however has been spent in custody. He has had no formal training. 6. I have no doubt that he has no insight into the adverse effect upon other people and their businesses and property that he has stolen. He said himself that his prevailing attitude upon release from custody was "to obtain and use drugs", in his words, to "relieve stress, anxiety and boredom" that he said he experienced when he was released from the custody given his "institutionalisation". With this sort of attitude he it is inevitable that he can expect to be returned to custody. He said his desire to obtain illicit drugs dominated his thoughts. He said that he gave little consideration to the impact of his actions when committing the offences. His conduct confirms that. 7. The destruction of a motor vehicle in count 3 reflects no rhyme or reason whatsoever, unless of course he was trying to destroy evidence that linked him to the taking of the car. Then again, there was CCTV footage of him taking the car. He claimed a habit of at least $800 per day and claimed the offences were committed in an attempt to fund his habit. Of course this could not be true of all the offences. For example, the assault, the taking of the motor cycle, the number of the breaking and entering, stealing offences which involved taking property that was "not negotiable" or not sold. 8. He took no positive steps on his latest release from custody to seek help for himself, although his counsel pointed out to me in submissions that amongst the other problems the prisoner has is that he wasn't registered on birth, which I am prepared to accept was true, and has no birth certificate. It is claimed that this makes it almost impossible for him to register for unemployment benefits. Thus, he also committed offences in order to obtain funds to facilitate his lifestyle. Not having a birth certificate is a lamentable affair which is not his fault. But surely there are plenty of Aboriginal organisations, such as the ALS, the Aboriginal Medical Service, the Aboriginal Children's Service, that could assist a person such as the prisoner to correct the situation or overcome the problem by appropriate statutory declaration. 9. The prisoner demonstrated little insight in his note into the impact of his offending upon his victims. But again expressed his willingness to undertake residential rehabilitation to release from custody and a desire to enter the compulsory drug treatment correctional centre, as he described it. I am prepared to give him that opportunity. The report from Community Corrections noted that he had previously been given an opportunity to enter a rehabilitation facility, as I have noted as a condition of parole order, but failed to enter the program. People who fail to comply with their parole conditions can expect nothing else but to return to custody. That would be self-evident to the prisoner who presents, it is said by his counsel, as an intelligent person. Community Corrections records indicated that the prisoner had never previously completed a period of community-based supervision. He previously failed to engage in supervision and because of the re-offending and to constantly being returned to custody it is no surprise that he is assessed on the risk assessment instrument used by Corrective Services to be at "medium/high risk of re-offending". 10. Service delivery by the Department at the present time is affected by the COVID-19 pandemic. This prisoner's non-parole period will expire, one would have thought, well beyond the impact of the pandemic. A supervision plan is set out in the sentence assessment report, including again residential rehabilitation, drug counselling, attending a general practitioner for the development of a Mental Health Care Plan, undertaking programs to address drug cravings, stress and anger et cetera when they are available. As for COVID-19, I accept that during the term of a pandemic, however long that will last, it will adversely affect his access to programs, his opportunities for personal visits and the like. I acknowledged this in the sentencing of Mr Simpson. This is not a matter that her Honour Acting Judge Latham had to take into account for obvious reasons in December last year. I thus accept that for an unknown period of time, the conditions of custody for this prisoner will be adversely affected to an extent that I cannot mention in the absence of greater assistance from the parties. In fairness to them, they cannot be expected to predict the future. But it is a relevant matter to take into account. 11. Although there is a lack of detail in the prisoner's case, notwithstanding the prisoner's note and that is not of great assistance to me, the prisoner's obvious Aboriginality, his obvious association with members of the Aboriginal population in the Shoalhaven area, his family circumstances and accepting the very general detail which I have been provided, require reflection upon the High Court decisions of Bugmy v the Queen [2013] HCA 37 and Munda v Western Australia [2013] HCA 38, both decided on 8 October 2013. Particularly I refer to the dicta in the judgment of Bugmy at [42]-[44]. The disadvantages for the prisoner arising from his ethnicity and his social background are not precisely defined in the evidence. But it appears to me, noting everything that's being said by the Crown about this matter, it is proper to draw inferences about his social circumstances and the circumstances of his criminal history, which reflect a denial to him of opportunities of education, social harmony, family support, and also denial of role models that could have greatly fashioned his attitudes. Bugmy principles of course go to the assessment of his moral culpability (see Kentwell v R (No 2) [2015] NSWCCA 96 per Rothman J). These matters were also discussed in his Honour's judgment in sentencing Mr Lewis for murder or manslaughter, (R v Lewis [2014] NSWCCA 1127). As his Honour pointed out in Kentwell, with the agreement of the learned Chief Justice, these issues go to the fashioning of an appropriate sentence, but one that is not wholly inadequate. 12. Here, it must be said, the prisoner has been deprived the opportunity of some form of moral centre as his conduct on the occasions with which I am concerned reveals. Of course, these disadvantages to which I have referred such as they can be identified, do not diminish with time. The prisoner's failure to comply with parole orders can be best understood as seen in the context of the prisoner through no real fault of his own in the sense of having no one to set an example for him, really not knowing any better. Full weight must be given to these matters to the extent they can be measured. Also, weight must be given to the issue of the institutionalisation of the prisoner to which his counsel referred from an early age. I am prepared to accept that he has been institutionalised and this has corrupted his capacity to make sensible moral choices as demonstrated by his conduct on the occasions with which I am concerned. 13. The problem is, of course, at this stage of his life with his attitudes as expressed throughout the proceedings, his attitude to the strength of the Crown case and the like, it is difficult to make a finding in his favour that he has good prospects of rehabilitation or is unlikely to re-offend. I have ignored, of course, some of his comments last Friday and disregarded some of his attitude towards his process. His acting out is really misplaced bravado, particularly in the context of him wanting to proceed sooner rather than later. Although I can understand the wish of him to have these proceedings completed as soon as possible. 14. I understand all these things, but the complexity of this sentencing process is not something I can expect the prisoner to fully understand. As for his institutionalisation, the principal issue raised by his counsel, it appears to me that the damage has already been done and there is little I can do to undo the damage to, in effect, "unscramble the scrambled eggs" with which I am now presented. The s 5 threshold for each of the offences has clearly been passed. It is not within a proper exercise of sentencing discretion to consider alternatives to imprisonment as the prisoner seems to suggest I should. I am constrained also by the sentences imposed, particularly on Mr Simpson who was much better placed than this prisoner who was concerned with a far lesser totality of criminality. To consider something other than terms of imprisonment would not reflect proper regard to the totality of the criminality, the period of time over the offending, the character of the offences that were committed, the fact that the prisoner was subject to parole, in fact, had had his parole revoked, the lack of prospects of rehabilitation of this stage, the likelihood of him re-offending in the future. It would not accord sufficient weight, to what was reflected in the judgment of Acting Judge Latham SC, noting the particular matters that I have identified that need to be considered as to the weight that I have to the orders that she made. I could not regard by reason of personality or criminal history that Mr Simpson, for example, was the architect of the crimes to which he was related to this offender. 15. The only way that I can address the issue of institutionalisation is to determine a finding of "special circumstances" pursuant to s 44 of the Act to permit a greater period of supervision than might otherwise seem appropriate to assist the prisoner's adjustment to community living to which he has had no success in the last ten years or so. Although you can hardly ascribe fault to a 13 or 14 year old. To try and direct him towards drug counselling and rehabilitation and also to be given an extended period of time to get assistance to acquire the skills to live in the community which he has probably never been able to exercise before. 16. This was a matter particularly addressed by Wood J, as he was then known, in a very early judgment on s 9 Sentencing Act of 1989, now repealed. In fact, it was once the leading judgment in relation to the character of "special circumstances." That is the judgment of Moffitt v R (1990) 14 NSWLR 114, particularly at [120]-[121]. The prisoner does need a great deal of professional assistance. But he also needs to reflect upon his own conduct and take responsibility for himself and his actions which he plainly will not do at the present time. His letter to the Court gives no hint of taking personal responsibility. Although written before he pleaded guilty, he made comments reflecting upon the case which, to my mind, just reflected on his part ignorance of the state of the Crown case against him. His attitude towards the character of the Crown case reflects the failure on his part to acknowledge the considerable strength of the Crown case. The network of circumstantial evidence including the CCTV footage was, in fact, very strong indeed. Overwhelming, in my view. His pleas of guilty really were a reflection of the inevitable. Denial of his guilt in relation to these various offences, in my view, was hopeless on his part when one has mature reflection upon what has been said to be the "Agreed Facts". 17. In fixing the sentence for this prisoner, I have had regard to all the "purposes of sentencing" pursuant to s 3A of the Act. They all have a role to play here, including the promotion of his rehabilitation. This is the promotion of the rehabilitation of an offender who up until this point has shown no interest in this or, to be fair, is either so "broken" or "disadvantaged" as to not know how to go about it. The last aspect is, of course, a very distinct possibility as I have acknowledged. The problem with personal deterrence in a case such as this is that for someone who is institutionalised the prospect of incarceration holds no terror whatsoever and holds little deterrence whatsoever. Other than, of course, incapacitation for a period of time. That is, preventing the prisoner from getting into the community to commit further crimes. With regard to mitigating factors pursuant to s 21A(3) or generally relevant under s 21A(1) of the Act, I have noted the pleas of guilty as a mitigating factor. I am ultimately prepared to find that the offending was not relevantly "planned" in the way that word is understood but there is little else, certainly under s 21A(3), that is available for the prisoner. 18. Although I did not expressly state this in the summary of reasons that I gave in relation to the co-offender who I dealt with last week, I have had regard to the totality of sentencing as it is reflected in High Court decisions such as Mill v R (1988) 166 CLR 59 and Johnson v R [2004] HCA 15; 78 ALJR 616. To my mind, the best statement of the practical application of totality of criminality in sentencing is found in the decision of R v Holder & Anor (1983) 3 NSWLR 245 particularly at 260 in the judgment of Street CJ. There his Honour said this: "The principle of totality is a convenient phrase descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentence is appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances." 1. Such as the situation I point out that we learn occurs in some States of the United States such as Texas where people are sentenced for multiple cumulative sentences that go well beyond their life expectancy. "In such a situation the sentencing judge will evaluate in a broad sense the overall criminality involved in all the offences and having done so will determine what if any downward adjustment is necessary whether by telescoping or otherwise and the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than what would be arrived at by straightforward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment it is basically inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all the offences." He later went on to say: "Where the principle of totality comes into effect it is more often than not of little importance how the ultimate aggregate is made up (that is to say whether by a series of aggregate terms or by a series of concurrent terms or by partly one and partly the other) the important factor is the practical significance of the sentencing order." 1. I hasten to say those observations need to be seen in the light of the more recent decision of the High Court in Pearce v The Queen (1998) 194 CLR 610, particularly in the majority judgment at [45] and subsequent judgments that I have borne in mind. 2. I also bear in mind since Street CJ presided over the Supreme Court of New South Wales we now have s 53A of the Act which permits the fixing of an aggregate sentence which I propose to do. But then again, I have to also fix indicative sentences for each offence. The orders that I make will soon be forwarded to the parties and no doubt a copy will be provided to the prisoner. He will discover if he was to add up all the sentences I have imposed that would be well in excess of 30 odd years, maybe more. But I do not propose to sentence the prisoner to that term of imprisonment. I still have to have regard to his comparative youth which to fairly be said, continues to be a relevant matter notwithstanding his criminal experience and the interconnectedness of various offences. 3. Thus the orders I make in your case, Mr Mongta-Kelly, are as follows: You are convicted of all offences. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 I am fixing an aggregate sentence of nine years six months imprisonment commencing on 16 June 2019, expiring on 15 December 2028. I am fixing a non-parole period of five years three months imprisonment commencing on 16 June 2019 and expiring on 15 September 2024. You will be eligible for release to parole within approximately four years' time. 1. The indicative sentences I impose are as follows: In relation to count 1, one year eleven months imprisonment. In relation to count 2, taking into account the relevant matters on the Form 1, two years ten months imprisonment. In relation to count 3, the destruction of the motor vehicle by fire, two years four months imprisonment. Each of these sentences I should point out reflects a discount of 5% upon the otherwise appropriate sentence. Some sentences have been rounded up, some sentences have been rounded down, but the aggregate sentence ultimately is not affected by the rounding up/rounding down process. Count 4, steal motor vehicle, one year 11 months imprisonment. Count 5, taking into account the matters on the Form 1, four years imprisonment with a non-parole period of two years three months. Count 7, taking into account matters on the Form 1, three years seven months imprisonment, non-parole period of two years. Count 8, aggravated break, enter and steal, two years four months imprisonment, non-parole period one year three months. Count 9, aggravated breaking and entering and stealing, two years four months imprisonment, non-parole period of one year three months. Count 10, aggravated breaking, entering and stealing two years ten months imprisonment, non-parole period of one year seven months imprisonment. Count 12, the common assault matter, five months imprisonment. Count 13, the taking and driving a vehicle, taking into account two matters on a Form 1, one year 11 months imprisonment. Count 14, take and drive a conveyance; that is the motor cycle, one year five months imprisonment. Count 15, breaking, entering and stealing, one year 11 months imprisonment. Count 18, aggravated breaking, entering and stealing, taking into account the five matters on the Form 1 which includes two matters that were previously counts on the indictment, three years nine months imprisonment, non-parole period of two years imprisonment. Count 19, aggravated breaking, entering and stealing, one year 11 months imprisonment, non-parole period one year's imprisonment. 1. In relation to the s 166 certificate matters as listed on the certificate all those matters are withdrawn and dismissed. 2. I refer the prisoner to the Drug Court pursuant to pt 2A Drug Court Act 1998 for consideration for admission to the Compulsory Drug Treatment Program as he requested. 3. Mr Mongta-Kelly, do you understand the orders I've made? 4. OFFENDER: Not really, no. 5. HIS HONOUR: Not really, well I've sentenced you to a total of nine and a half years with a non-parole period of five years three months. You will be eligible for release to parole in September 2024, that's a bit over four years from now. Do you understand that? 6. OFFENDER: Yeah. 7. HIS HONOUR: Whether you're released to parole or not I can't tell you. It won't be like the release to parole before. It won't be automatic, you'll have to earn it. So if you don't earn it is possible that you could spend all of that time in gaol and be released without parole, do you understand that? 8. OFFENDER: Yeah. 9. HIS HONOUR: So the ball is going to be in your court so to speak but one of the opportunities you will have will be to undertake the compulsory drug treatment program but you will have to go back before the Drug Court, you understand that? 10. OFFENDER: Yes. ********** 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: 09 October 2020