District Court New South Wales Medium Neutral Citation: R v Hewitt [2020] NSWDC 686 Hearing dates: 09 November 2020 Date of orders: 09 November 2020 Decision date: 09 November 2020 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 33 Catchwords: CRIMINAL LAW – sentencing – break, enter and steal offence – Bugmy principles regarding the effects of childhood disadvantage – drug addictions – consideration of general and specific deterrence Legislation Cited: Crimes Act 1900 (NSW), s 112 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5 Cases Cited: Bugmy v the Queen (2013) 249 CLR 571 R v Fernando (1992) 76 A Crim R 58 R v Harris (2007) 171 A Crim R 267 R v Henry (1999) 46 NSWLR 346 R v Maher [2004] NSWCCA 177 R v Scott [1999] NSWCCA 434 Category: Sentence Parties: Director of Public Prosecutions Mr T R Hewitt Representation: Solicitors: Solicitor for the Office of the Director of Public Prosecutions Aboriginal Legal Service (NSW/ACT) File Number(s): 2020/12329 Publication restriction: Nil Judgment INTRODUCTION 1. The offender is before the Court for sentencing for the offence that, contrary to s 112(1)(a) of the Crimes Act 1900 (NSW), at Sydney on 30 October 2019 he broke and entered into a shop called 'Sodam Kitchen' and stole certain property of the victim, Mr Chuljung Lee, the owner of the shop, being a black backpack containing $1,000 in various denominations. 2. He pleaded guilty to that offence on 20 August 2020. 3. The offence carries a maximum penalty of 14 years' imprisonment. There is no standard non-parole period. Agreed Facts 1. The Agreed Facts are as follows: "1. The victim, Mr Chuljung Lee (MR LEE), is the owner of Sodam Kitchen at the Hunter Connection shopping complex in Sydney. At about 5:30pm on Wednesday, 30 October 2019, Mr LEE was about to close Sodam Kitchen for the day. He removed $1000 cash from the cash register and put it into an envelope, placing it inside his black "High Sierra" brand backpack. 2. At this time, Troy HEWITT (the offender) was walking around the Hunter Connection. He went to Sodam Kitchen and bought a can of soft drink. After the offender purchased the soft drink, Mr LEE pulled down the roller shutter and locked it with a key, before leaving the restaurant to take rubbish downstairs to the basement area. He left his backpack containing the cash inside the restaurant. 4. Approximately 5 minutes later, Mr Lee returned to his restaurant and saw the roller shutter had been pulled up about half way. He immediately went inside and found that his backpack was missing. Mr LEE contacted the police. 5. The following day, Detective Senior Constable Stone and Sen Constable Bourke attended the restaurant. Detective Stone googled a "black Sierra" backpack and showed the image to Mr LEE. Mr LEE indicated that the image looked like his missing backpack. 6. Senior Constable Bourke obtained CCTV footage of the Hunter Connection complex on 30 October 2019 (the timing was one hour and 4 minutes slow). CCTV showed the accused walking around Hunter Connection without a backpack (CCTV time: 16.04). 7. The offender then disappeared from the camera view for less than one minute, before again being captured on Hunter Connection CCTV footage leaving the vicinity of the restaurant carrying a black backpack (CCTV time: 16.45). 8. On 14 January 2020, Police arrested the offender in relation to this matter." Objective seriousness 1. The offender's legal representative submitted that the conduct fell at the low end range of offending for an offence of this kind. She emphasised that it occurred on commercial premises at a time when the shop was unattended. The amount of what was stolen was not significant in monetary value. There was no damage to the property. There was no physical violence which occurred. 2. The Crown submitted that the offending fell below the mid-range of offending. 3. I accept the offender's submission that the offending fell at the low end of the range of offending. 4. It is common ground that but for the circumstance concerning the extent of the offender's past criminal history, sentencing for this offending would ordinarily have been dealt with in the Local Court. 5. The offending is aggravated in the circumstance that it occurred when the offender was on conditional liberty, having been sentenced on 26 June 2019 to a two year Community Correction Order. 6. The circumstance of the offender's past criminal history is considered in connection with his subjective case, to which I now turn. SUBJECTIVE CIRCUMSTANCES The offending 1. It was submitted for the offender that the offending was not planned, but was spontaneous and opportunistic. The offender's psychologist indicated that the offender had reported to her that on the day of the offending, the offender had had an argument with his sister about drugs; that he left the home and got ice and pills. It was after he consumed the drugs that he went for a walk and proceeded to engage in the offending conduct. The Crown does not suggest that the offender saw the $1,000 worth of cash deposited by the owner of the shop into the bag. According to his psychologist, it appears that he may have been under the influence of drugs, but that is no mitigating factor in his case. As noted below, to some extent, the seriousness of the offending is reduced because of the background of childhood disadvantage. Childhood disadvantage 1. The offender relied upon a psychologist's report of Ms Vanessa Edwige dated 24 October 2020. The report speaks of an upbringing in which the offender observed acts of domestic violence perpetrated by his father against his mother; alcohol abuse; and the offender also was the subject of some violence perpetrated against himself. He reported to her that his mother had 'given up' on his older brother and that he was traumatised by seeing his sister suffer a traumatic brain injury from diving into shallow water (fortunately his sister recovered). The offender reported to her that he engaged in acts of theft from a very early age, given the impoverished financial position of his family. The offender also commenced taking marijuana from about 14 and started smoking heroin. From 2014, he has been using ice, heroin and yarndi. Somewhat surprisingly, prior to seeing Ms Edwige, he had not seen a psychologist before. His solicitor advocate suggested that this might have been explicable by the circumstance that for offences of this kind, where he was regularly before the Local Court, it may not have been practicable for the offender to have obtained such evidence. 2. Ms Edwige diagnosed his suffering from complex developmental trauma and opioid use disorder. She opined that he externalised his trauma through his behaviour and also numbs his trauma history through substance abuse. She summarised his background as a childhood marred by parental substance abuse, exposure to domestic violence, low socio-economic status, interrupted schooling and child physical abuse. I accept that these conditions which substantially derived from a disadvantaged upbringing contributed to the offending conduct. I accept that Bugmy principles are engaged (Bugmy v the Queen (2013) 249 CLR 571) and, as the High Court noted in that case, the effects of childhood disadvantage do not diminish over time. As indicated, associated with that disadvantage are the drug addictions which have afflicted him. This is not a case where the drug addictions can be said to be entirely the product of choice: R v Henry (1999) 46 NSWLR 346 at [254]-[255]; also R v Fernando (1992) 76 A Crim R 58 at 63. Age 1. The offender is now 44 years of age. He was aged 43 at the time of the offending. I will refer below to his family upbringing. He attended school up to the end of year 10; although his schooling was interrupted. Though he had certain behavioural difficulties, he is literate. 2. The offender also had a son in 2003 and has also acted as a father figure to another child. Prior criminal history 1. The offender has an extensive criminal history, including not only offences in this state, but also in Queensland. From an early age, he has been convicted of numerous offences for larceny; and breaking and entering premises. This record disentitles the offender from leniency. Plea 1. The offender is entitled to the 25% discount on account of his guilty plea for its utilitarian value. Harm to others 1. The Crown did not put on any victim impact statement from the shop owner. No inference adverse to the Crown is drawn from this. I accept that the loss of $1,000 to the owner was not insignificant to the owner of the business having regard to the apparent scope of the business. Remorse 1. Ms Edwige noted (p 11) that the offender had reported to her that as soon as he had left the shop, he had said to himself "What have I done? I've done it again" and had also acknowledged to her that he makes poor decisions due to his addictions and their impact upon his decision-making processes. 2. Such evidence, which I accept, is only limited in its nature. There is no sense of any appreciation of the harm occasioned to the proprietor of the store. The offender did not give evidence himself at this sentencing hearing. Rehabilitation 1. The offender's psychologist stated that the offender had expressed genuine interest in treatment and was receptive to receiving drug and alcohol rehabilitation. She felt he would need ongoing psychological support for a period of no less than 1 year. Whilst there may be some hope indicated by the offender's expressed receptiveness to receiving treatment, and his articulation of some life goals as an indicator of a sense of purpose, his prospects are only guarded. Prospects for re-offending 1. Given his past history, absent effective intervention, his prospects of re-offending are at best guarded. OVERALL SYNTHESIS 1. The offender's legal representative accepted that the s 5 threshold had been crossed. 2. In my opinion, the concession was properly made. Having regard to the considerations in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), general deterrence is generally a very important sentencing consideration for break and enter offences, or, as put in R v Maher [2004] NSWCCA 177 at [44] the courts need "to send a very clear message to others who may be minded to conduct themselves in a similar fashion that if they come before the courts they will be punished severely". 3. In R v Harris (2007) 171 A Crim R 267, the Court at [30] quoted with approval the remarks of the sentencing judge in R v Scott [1999] NSWCCA 434 quoted at [17], that the incidence of break, enter and steal throughout the State is "cause for grave disquiet"; "the community are understandably angry and frustrated at the seeming immunity enjoyed by the burglar"; further, "it is a notorious fact that householders face huge premiums, as well as the vast expense of making their homes secure"; and that: "the community has the rightful expectation that judicial officers will act responsibly and impose meaningful penalties on the rare occasion when the burglar is apprehended and convicted. Other would-be burglars just might be deterred when it is learnt that the crime of break, enter and steal is regarded as being grossly serious and will attract serious punishment". 1. Those observations apply with no lesser force where the break and entry affects shops owned and operated by persons engaged in small business. There is a heightened need to respect the harm done to the victim of the crime. 2. Notwithstanding that the considerations of general and specific deterrence and the need for denunciation are, to a degree, moderated on account of the offender's background of childhood disadvantage and associated addictions, the consideration of community protection and a need to facilitate accountability remain heightened for offending of this kind. The consideration of facilitating the offender's rehabilitation, though not insignificant, is a lesser consideration. I am satisfied that the s 5 threshold has been crossed. 3. The offender's legal representative submitted that special circumstances arose. Reference was made to his being at risk of institutionalisation, noting he has been in custody every year since 2006. The Crown did not resist the notion that special circumstances should apply, although noted that in his past criminal history where he has been sentenced to incarceration, he has yet to serve a full period on parole. 4. In the offender's favour is the circumstance that he has only recently engaged in thorough psychological assessment and there are tangible steps for a treatment plan to assist him with his rehabilitation. It appeared from the psychologist, and I accept, that he was quite open and transparent in what he told her. I consider, on balance, that his re-integration back into the community favours he be given a longer period on parole for this offending. 5. Reference was also made to the period that the offender has spent in custody. He has been in custody since 31 October 2019, but that was the result of other matters unrelated to the offence for which he is now to be sentenced. He is currently serving a sentence for an unrelated offence for a period of 1 year, 8 months and 20 days, with a non-parole period expiring on 10 December 2020. In relation to the current offence, he was arrested and charged on 14 January 2020. 6. It was submitted on the offender's behalf that the principle of totality should suggest that he be given the benefit of substantial concurrency between the penalty and the punishment in relation to the existing offence. But whilst some minor concurrency should be recognised, I substantially agree with the Crown's submission that the circumstances of the current offending, being entirely unrelated to other offences, should sound in a not insignificant amount of accumulation. 7. Mr Hewitt, please stand. 8. Taking into account the plea, I sentence you to a period of imprisonment of 1 year and 6 months, which will be taken to have commenced on 10 July 2020 and expires on 9 January 2022, with a non-parole period of 10 months. You may become eligible for release on parole on 9 May 2021. ********** 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: 10 November 2020