District Court New South Wales Medium Neutral Citation: R v Arvinthan [2021] NSWDC 253 Hearing dates: 25/2/21 Date of orders: 25/2/21 Decision date: 25 February 2021 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Convicted and sentenced to aggregate term of imprisonment of 4 years 6 months with NPP 2 years 9 months (1/3/20-31/11/22) I find special circumstances. Indicatives: Seq 4 Enter dwelling house – 2 years (Form 1 taken into account) Seq 7 Aggravated break, enter and steal – 3 years 4 months with NPP 2 years. Catchwords: Crime – Sentence – Enter dwelling house with intent to steal – Aggravated break and enter dwelling house and commit sexual touching Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Ponfield v R [1999] 48 NSWLR 327 Bugmy v R (2013) 302 ALR 192 Category: Sentence Parties: NSW DPP – Crown Keerthy Arvinthan - Offender Representation: Mr Chua for Crown Mr Kondich for Offender File Number(s): 2019/408802 sentence 1. I am now in a position to deliver a sentence in Mr Arvinthan's matter. He is for sentence in relation to two offences. Firstly, an offence of entering a dwelling house with intent to commit a serious indictable offence, namely stealing. The maximum penalty for that offence is ten years' imprisonment. Plus, he asks that in dealing with him for that offence, I take into account a further offence of stealing which is on a Form 1 document. The second offence is one of aggravated break and enter dwelling house, and commit serious indictable offence in the form of sexual touching, knowing that there was a person or persons present inside. The maximum penalty for that offence is 20 years' imprisonment and it has a standard non-parole period of five years. 2. Those maximum penalties and where applicable, the standard non-parole period, are of course important guide posts in the sentencing exercise, to which I have had regard. The offender pleaded guilty at an early stage and is entitled to a 25% discount on account of that fact. FACTS 1. An agreed statement of facts has been placed by the Court, and in summary, the facts are as follows. 2. The first matter described in the facts is the larceny offence which is to be dealt with on the Form 1 document, when sentencing the offender for the sequence 4 offence of entering a dwelling with intent to steal. The larceny offence occurred on 27 December 2019. The victim of that offence, Ms Helen Stewart, lived at an address in Crosby Street, Greystanes. On Friday 27 December 2019, while Ms Stewart was gardening, she placed a Phantom brand cigarette lighter and a packet of cigarettes on a table at the rear of her property. After that, she locked the house and left to drive to some shops. During her absence, the offender stole the cigarettes and lighter from the table in her backyard. Ms Stewart returned home about an hour later and discovered that the items were missing. 3. Turning then, to the first offence for which the offender is to be sentenced, that being the enter dwelling house with intent to steal, the facts are as follows. At about 11.30pm on Saturday 28 December 2019, Ms Stewart to whom I have just referred, was at home alone. She had locked the front door of her house with a key. As it was a hot night, she had left the rear doors, which provided access to the rear yard, slightly open using a doorstop, and so that her dog could get out. After going to bed, she had some difficulty in falling asleep due to the heat of the night. 4. Later that night, she awoke and found the offender standing close to the side of her bed. The agreed facts indicate that the offender was looking for cigarettes. He was holding in his hands an object that resembled a mobile phone. Ms Stewart jumped out of bed and yelled, "Get out, get out", which caused the offender to run from the bedroom while Ms Stewart chased him down the stairs, where he exited into the backyard while she continued to scream at him to get out. The offender left the property and Ms Stewart locked the doors and called police. 5. Police arrived shortly thereafter with a tracking dog, which they used in an attempt to track the intruder. While doing so, the offender suddenly emerged in the vicinity of a house on the Great Western Highway, not far from Ms Stewart's house. He was wearing no shirt when police initially saw him, but he was then seen to quickly put on a shirt. A police dog handler then had a conversation with the offender, asking him what he was doing there, to which he replied that he was homeless and had come from Paramatta where he had been watching a movie with some friends. 6. When asked why he was so sweaty by the officer, he said it was hot and he just walked all the way from Parramatta, which the officer found apparently difficult to accept and asked him, "What are you really up to, mate?" And the offender replied, "Nothing", and that he was just at McDonald's and asked why he had been stopped, to which he was told that someone had just woken up to a man in their room and police were tracking the intruder with a dog and told the offender to stay where he was. The offender was not arrested at that time, however. Those are the facts relating to the first offence. 7. The second offence as I have noted, is one of breaking and entering and committing a serious indictable offence, namely sexual touching, knowing that a person was inside the premises. The primary victim of this offence was a 17 year old young woman named Brittany who lived at an address on the Great Western Highway at Pendle Hill with her mother, grandmother, and uncle. Her bedroom was at the front of the house near the street. The view between the street and victim's bedroom window was obscured by a number of trees at the front of the property. On the evening of Monday 30 December 2019, Brittany was in her bedroom playing a computer game and watching some videos. As it was hot night, the bedroom window was slightly open. At about 1.30am on the morning of Tuesday 31 December, Brittany was still awake watching television when she heard a noise outside. When she looked out the window, she saw the offender walking around and looking towards her window. When the offender noticed the victim, he said "Oh sorry" and then walked away. 8. The victim, understandably concerned, immediately went to her mother's bedroom and told her what had happened. Brittany's mother came to the bedroom to look out the window, but at that point, could not see the offender and they both at that stage dismissed the matter, thinking it was some drunk person wandering around. After this, Brittany returned to her bedroom and continued playing video games, and sometime afterwards, changed into pyjamas and went to bed, although leaving her window slightly open given that it was a hot night. 9. At around 3.30am, she awoke to find the offender lying next to her on top of a quilt on her bed. The offender was looking at Brittany, and at the same time had his right arm underneath her quilt, touching her upper thigh, and then touching her over her bed covers. Understandably, she was shocked and scared and froze for a moment before jumping toward the edge of her bed and reaching for her phone. She screamed out loudly, "Get the fuck out of my bed. Get the fuck out of my house." In response, the offender said "Shhh, no, no" a few times, and then "Please don't scream." After which he jumped from the window, which at that stage was fully open. 10. Brittany, with some foresight, used her mobile phone camera to take some photographs of the offender as he ran away, still holding onto the flyscreen from her window. She then ran to her mother's bedroom and told her what had happened, after which police were called. At about 4am, police officers who attended the scene found the offender standing outside a house at 497 Great Western Highway, not far from the victim's house. He was arrested and taken into custody. 11. After being arrested, the offender voluntarily engaged in an interview with police in which he said a number of things and made a number of admissions. He told police he was homeless but presently was being supported by a friend who lived at the address outside of which the offender was standing when he was arrested. He identified himself in photos shown to him, which had been taken by Brittany, and said that he was guilty because he had entered someone's room by removing a flyscreen, after seeing the girl who he thought was attractive. 12. He said he tried to wake the girl by touching her on the belly and that he was hoping that he could have sex with her, but wanted firstly to talk to her. He said that his penis was erect and he agreed he did not have the girl's consent to touch her, but denied that he put his hand under the covers or on her leg or bottom. He said that when she woke up, he did not touch her, but he was begging, but she was trying to scream and he was pissed off and he left by jumping out the window. 13. On 3 January 2020, the offender engaged in another voluntary interview. He said that on 29 December 2019, in other words, the night that Ms Stewart's home was entered, he had been to Parramatta to watch a movie and had then caught a train to Wentworthville from where he walked, collecting cigarettes from the ground. He had previously been to Crosby Street, Greystanes, the street where Ms Stewart lived, but could not recall being on that street on 29 December. 14. He said that on that night he got himself a drink and washed his face using a tap at the front of a house, and that after being spoken to by police, he went home. However, after being shown CCTV material from the early hours of the morning, taken from nearby houses, he told police that he was guilty and agreed that the male who had been standing next to Ms Stewart's bed had been him. He said he had not broken into the house, but entered via the back door which was open, and that he had earlier seen Ms Stewart doing gardening, and that at about 4pm he had taken the cigarette packet before going to see the movie, and at that time he did not know anyone was at home. 15. He said that when he was in the house that night, he was using his phone screen as it was dark, but he was not using it to take video or photos, and that he went into the bedroom looking for cigarettes. Those are the agreed facts in summary, relating to that second offence. OBJECTIVE SERIOUSNESS 1. Each of the offences before the Court are of considerable seriousness as is demonstrated firstly by the maximum penalties, and also by the standard non-parole period that is specified in relation to the offence under s 112(2). 2. As I have said, those maximum penalties and the standard non-parole period are guide posts in the sentencing exercise to which I have had regard. The stealing offence involving the taking of some cigarettes and a lighter, which is on a Form 1 document, is in my view at the lowest end of objective seriousness. However, offences of entering and of breaking and entering dwelling houses have been treated as serious for many years. 3. The objective seriousness of this type of offence is to be assessed by reference to all of the circumstances as well as the matters discussed in Ponfield v R [1999] 48 NSWLR 327, although I note that most of those objective matters are now contained in s 21A of the Crimes (Sentencing Procedure) Act 1999. The seriousness of the offence committed on 27 December 2019 at Ms Stewart's house is increased by reason that it occurred in her home where she was entitled to feel safe. The entering was accompanied by an intention to steal, which is itself a serious offence. 4. The offence also involved an actual confrontation between the offender and Ms Stewart who awoke to find him in her bedroom. Fortunately, she had the courage and common sense to chase the offender out of her house, but I have no doubt that it must have been an utterly terrifying situation for her and one that she will never forget. The offence also involved some degree of planning in that the offender had been to the house earlier when he stole cigarettes and had also been watching the house, as he told police that he had seen Ms Stewart in the garden earlier. 5. I accept, however, that there was no violence or any direct threat made to Ms Stewart. No weapon was involved and there was no vandalism or other damage caused by the offender. It was submitted by the Crown that this offence is on the low end of objective seriousness but not at the bottom of that range. In my view, the offence lies below the midrange of objective seriousness and towards the lower end, but I agree with the Crown that it is not at the lowest range given he various matters to which I have referred. 6. The objective seriousness of the offence committed on 30 December 2019 is marked firstly by the maximum penalty, which is intended to mark a worst case, and also by the standard non-parole period which, as I have said, are each guides to which I have had regard. The facts of this offence mark it as a serious one. It involved a terrible invasion of the privacy and sanctity of a house where people were sleeping. However, an element of the offence itself, is that the offender knew that there were persons present in the house and I have therefore taken care to avoid any double counting. 7. However, the fact that it was committed in the victim's home and in the presence of a child under 18 years of age are both matters that increase its seriousness. The fact that it was the victim's home is not a mere element of this offence. There was also some degree of planning in that the offender had earlier entered onto the outside of the property, being at the time when Brittany first saw him through the window. The serious indictable offence committed was of a sexual kind that involved skin to skin contact with Brittany's upper thigh. 8. While I have no doubt that the experience must have been a completely terrifying one for Brittany, the form of sexual touching in this matter is towards the lower end of seriousness. In my view, the overall objective seriousness of this offence lies below the midrange but not at the lowest range. SUBJECTIVE MATTERS 1. Turning then to subjective matters relating to the offender. He is now 24 years of age and was 23 at the time of these offences. He was born in Sri Lanka but came to Australia on a boat in 2013, and he is an unlawful non-citizen currently. 2. His criminal history in Australia is limited. His first offences of assault and entering a building with intent to commit an indictable offence were committed in 2017 and were dealt with by a s 9 bond for 12 months which the offender apparently complied with. However, on 6 August 2020, he was sentenced by the Local Court to three months imprisonment for offences committed on 4 December 2019, being offences of assault, intimidate, and sexually touching another person without consent. 3. He completed that sentence of imprisonment on 4 June 2020, but has remained in custody bail refused, awaiting sentence for the matters that are before the Court today. The offender's subjective circumstances have been placed before the Court by two psychological reports and a Sentencing Assessment Report. 4. The psychological report of Ms Thea Gumbert notes that the offender reported having being raised by his maternal grandmother near Colombo in Sri Lanka and that he never met his parents. 5. From about age 15, however, because of his grandmother's illness, he was placed into the care of an uncle who looked after him for some time, but then suddenly told him one day he had to go, and that his uncle had given someone some money and put the offender on a boat. He told the psychologist the voyage to Australia took 20 days and described it as horrible as there were 80 to 90 passengers on the overcrowded boat and insufficient food and water. 6. He reported that the vessel was intercepted by Australian Border Force and that he subsequently spent about one year in the Christmas Island Immigration Detention Centre, where he said conditions were better than he had experienced in Sri Lanka, and where he had access to education. After this, he was transported to Darwin, where he remained for another six months in detention before being released into the community at age 17. He reported having moved to Sydney, where he enrolled in a high school and completed year 11. 7. When he turned 18, he was apparently granted a bridging visa and found some work for a short time, although after this, he was unemployed and homeless for at least a year and sleeping rough when he was not able to stay with friends. He told the psychologist that while he initially had some occasional phone contact with his uncle in Sri Lanka, who at some point told him his grandmother had died, the contact later dropped off and he has not spoken with his uncle or anyone in Sri Lanka for some years. 8. In relation to his mental state, he denied any history of major mental illness and told the psychologist that he does not feel sad or unduly worried about his future, although he feels uncomfortable in gaol, but denied that he needed counselling or any mental health treatment. He told the psychologist that although he had been in one romantic relationship in about 2017, he has never been in a sexual relationship with anyone. In relation to the offences before the Court, he agreed he had stolen a packet of cigarettes but was unable or unwilling to further explain his reason for entering Ms Stewart's bedroom. 9. He said in relation to the offence involving the young woman, Brittany, that he had sat down on her bed and was trying to wake her and ask her something as he wanted to meet her and talk with her. When asked if he would expect her to have been scared in that situation, he said "Maybe, I don't know." However, he told the psychologist, "I have done a really bad thing" and "It makes me sad." He further told the psychologist that he was unhappy in Australia; often found himself wondering why he was born, and that he had had a really hard life in the community. 10. The offender expressed an acceptance to the psychologist that he would receive a gaol sentence for his offences, and said that he wished to serve his sentence and then be sent home to Sri Lanka. Testing by this psychologist placed the offender in the well above average risk for sexual recidivism. She concluded that he is an emotionally immature young man, lacking social skills and the means to form relationships. She concluded that his offences reflected maladaptive means to overcome intimacy deficits and obtain sexual gratification. 11. She says that although the offender is sorry for his actions, overall, he minimised his offending and showed a lack of insight into the harmful nature of his actions. She concluded that he would benefit from inclusion in a sex offender treatment program. 12. The Court also has the report from psychologist Andrew Redden, who saw the offender after he was referred to the psychology department at Parklea Correctional Centre for an assessment of his sexual offending recidivism risk. The offender was interviewed by Mr Redden on 11 December 2020. He confirmed that he had arrived in Australia in 2013 as a refugee. The psychologist found him to be somewhat vague and an inconsistent historian who disliked talking about his sexual offending. He presented as stable in terms of mental health but lacked insight into his offending behaviour and had a tendency to externalise, attributing his actions to the use of marijuana. The psychologist concluded that while the offender expressed some superficial empathy with his victims, he failed to demonstrate a real understanding of the impact of his actions. 13. The psychologist concluded, consistently with the views expressed by Ms Gumbert, that the offender is an immature young man and sexually naive, and that testing indicated he was well above average risk when compared with other adult male sex offenders. He demonstrated a low motivation for participating in programs designed to address sexual offending. The psychologist noted that in the custodial environment, there does exist a Deniers Program for men convicted of sexual offences who categorically deny their offending, a program which the psychologist infers may be of value in this offender's case. 14. The Sentencing Assessment Report contains a history from the offender that is consistent with what I have already described, although the author notes that the offender accepted some responsibility for his offending, stating that he did a bad thing. He attributed his offending to being intoxicated at the time and said that he had a history of methylamphetamine use which had commenced following injuries he suffered from a knife attack in 2018. Consistently with the conclusions noted in the psychological reports, the offender was uncomfortable discussing his sexualised offences and appeared unmotivated to engage in intervention. 15. He expressed some insight in the impact of his offending, but was not able to acknowledge the traumatic effect of his offences on his victims. The Sentencing Assessment Report concluded that he is of a medium to high risk of reoffending. 16. It has been argued on the offender's behalf that the principles discussed in Bugmy v R (2013) 302 ALR 192 are enlivened in this case. Those principles acknowledge that full weight needs to be given by sentencing courts, to the consequences for a person who has experienced serious deprivation in their upbringing, especially where that upbringing has involved abuse, domestic violence, or exposure to other violence, or alcohol and drug abuse. 17. In this matter, in the absence of evidence from the offender, I am not satisfied that Bugmy principles are enlivened. Nonetheless, I take into account the consistent evidence from several sources that the offender has to date experienced a life involving significant hardship. While I am not satisfied that this reduces his moral culpability, I take this evidence into account in a general way. 18. The Court has had the benefit of receiving a Victim Impact Statement from each of the two victims. These are not relied upon by the Crown as aggravating the offences and I do not treat them that way. However, they provide a helpful confirmation of just how terrifying the experience must have been for Ms Stewart and for young Brittany to wake up to find a stranger in their bedrooms. I trust that it will provide them will some comfort that this offender will never again have the opportunity to engage in that sort of conduct in Australia, given the sentence he will serve and given his expected deportation to Sri Lanka once that sentence has been completed. 19. Given the content of the various reports, I am not able to conclude that there is any real evidence of remorse in this case. Also, given that each of the assessments place the offender towards the higher range of risk, I am not able to conclude that his prospects of rehabilitation are good. His lack of insight, immaturity, and lack of community supports, suggest that his risk of reoffending is reasonably high. This conclusion is supported by the fact that an offence of sexual touching also took place on 4 December 2019. 20. I am satisfied that the so-called threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 has been crossed and that no penalty other than full-time imprisonment is appropriate in this case. In coming to that conclusion, I have had regard to all of the matters to which I have referred, as well as the purposes of sentencing set out in s 3A of that same Act. Given that I have to sentence for two offences, I have had regard to principles of totality and accumulation, and in those matters, I have also had regard to the fact that the offender has, since being taken into custody, also served a term of three months for the offences that he committed on 4 December 2019. 21. I am of course required to attempt to ensure, when regard is had to the totality of the term that the offender will serve, and taking into account the sentence that he has already served, that any sentence that I impose is not one that is an overwhelming or crushing one, and I have had regard to those principles in determining the overall sentence. DETERMINATION 1. I intend to impose an aggregate sentence. In doing so, I will make some allowance for special circumstances on the basis of the offender's relative youth and the current period of imprisonment being his first time in custody. I will announce the aggregate sentence in a moment. However, I am first required to set out what are called indicative sentences. 2. The indicative sentences are these. For the sequence 4 offence, including the matter on the Form 1 document, that being the offence committed on 29 December, after the 25% discount for plea of guilty, the indicative sentence is one of two years' imprisonment. For the sequence 7 offence committed on 30 December, after 25% discount, a head sentence of three years, four months, and a non-parole period of two years. 3. Instead of those two sentences and having regard to totality principles, I impose an aggregate sentence of four years, six months head sentence, and a non-parole period of two years, nine months. I have had regard to the date upon which those sentences should commence, and in that regard, I have taken into account the three months that the offender has already served in relation to a different sentence. 4. Having regard to those matters, the sentence will date from 1 March 2020. Therefore, the head sentence will expire on 31 August 2024 and the non-parole period on 31 November 2022. I direct that a copy of my remarks on sentence, once revised, be sent to the Department of Corrective Services and also to Justice Health, and I also direct those agencies receive a copy of the two psychological reports to which I have already made reference. ********** 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: 16 June 2021