R v GREEN [2022] NSWDC 270

District Court New South Wales

Medium Neutral Citation: R v GREEN [2022] NSWDC 270 Hearing dates: 30 May 2022 Date of orders: 18 July 2022 Decision date: 18 July 2022 Jurisdiction: Criminal Before: Lerve DCJ Decision: Sentenced to an aggregate sentence of 5y 6mo with non parole period of 3yr 4mo. Catchwords: CRIME - aggravated break enter and steal - multiple counts - co-offender - parity - prior convictions - Legislation Cited: Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 Cases Cited: Bugmy v The Queen [2013] HCA 37 Clifford [2008] NSWCCA 190 French [2010] NSWCCA 24 Harris v R [2007] NSWCCA 130 Mbele v R [2021] NSWCCA 182 Merrin v R [20007] NSWCCA 255 The Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 reported (2002) 56 NSWLR 146 Toller v R [2021] NSWCCA 204 Valentine v R [2020] NSWCCA 116 Category: Sentence Parties: Regina Harley Shane Peter GREEN Representation: Counsel: Mr T Jackson for the Offender

Solicitors: Ms Wojcik for the Director of Public Prosecutions File Number(s): 2021/46741, 2020/356390, 2020/300359 Publication restriction: No

REMARKS ON SENTENCE 1. The offender was committed for sentence from the Wagga Wagga Local Court on 27 October 2021 in respect of four substantive matters. Attaching to each of those substantive matters is a Form 1 document containing a number of charges. The four substantive charges are, using the same order as they appear in the Crown tender: 1. H77739128 - sequence 13: Aggravated Break and Enter with Intent to Steal (Fosters joinery) 2. H77739128 - sequence 7: Aggravated Break and Enter with intent to steal (Planet Power) 3. H76463356 - sequence 2: Aggravated Break Enter and Steal (Flame Grilled Chicken) 4. H 77739128 - sequence 9: Aggravated Break Enter and Steal (Boleek Jewellers) 1. Attaching to H77739128 Sequence 13 is a Form 1 on which there are three charges, namely: Sequence 2: Aggravated Break Enter with Intent to Steal (relating to Blarney Stoneworks) Sequence 3: Destroy/Damage Property Sequence 4: Destroy/Damage Property 1. Attaching to H77739128 Sequence 7 is a Form 1 on which there are two further charges, namely: Sequence 6: Attempt Aggravated Break Enter with Intent to Steal (relating to Bryant Engineering) Sequence 8: Aggravated Break and Enter with Intent to Steal (relating to Southern Cross Contractors) 1. Attaching to H7646336 Sequence 2 is a Form 1 document containing two further charges, namely: Sequence 3: Break Enter and Steal (relating to Kitson Property) Sequence 1: Attempted Break and Enter with Intent to Steal (relating to Flirt Adult Store) 1. Attaching to H77739128 Sequence 9 is a Form 1 document on which there are four further charges, namely: Sequence 5: Larceny (relating to the stealing of a laptop) Sequence 10: Aggravated Break Enter and Steal (relating to S & E Hair and Beauty) Sequence 11: Aggravated Break Enter and Steal (relating to Skins Barber) Sequence 14: Aggravated Break Enter and Steal (relating to Lun Massage) 1. The maximum penalty for each of the charges of aggravated Break enter with intent to steal is 14 years imprisonment. There is no standard non-parole period specified in respect of those offences. The maximum penalty for the two charges of aggravated Break enter and commit serious indictable offence, namely larceny, is 20 years imprisonment. Parliament has specified a standard non-parole period of five years in respect of those offences. 2. I note that the maximum penalty in respect of an offence of Break enter and steal simpliciter is 14 years imprisonment. The maximum penalty for the offence of Destroy or damage property is five years imprisonment. The maximum penalty for the offence of larceny is also five years imprisonment. 3. The offender pleaded guilty before a magistrate and those pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 30 May 2022. Accordingly, the offender is entitled to the full 25% discount for utilitarian value of the pleas of guilty. 4. In dealing with the form 1 matters I will need to ensure that I properly apply the principles enunciated by the Court of Criminal Appeal in The Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 reported (2002) 56 NSWLR 146. Given the number and the nature of the offences attaching to the various form one documents those matters must have a meaningful impact on the ultimate sentence that is imposed on the offender. 5. The offender also requests this court when passing sentence to deal with breaches of Community Corrections Orders. Mr Jackson of Counsel submitted at the sentence hearing that the court would deal with those matters on the basis that the commission of further offences while subject to conditional liberty is an aggravating factor which is to be factored into the sentence to be imposed with no action taken on the community corrections orders. I indicated at the sentence hearing that that is the approach I would take. 6. There is an issue arising as to the issue of parity. On 14 December 2021 I sentenced the co-offender Simon Mitchell in respect of much of the offending for which this offender appears for sentence. However, Mitchell was not sentenced in respect of the offence of aggravated Break enter and steal committed at Boleek Jewellers. Given the seriousness of that offence, particularly as to the value of the property that was stolen and the matters attaching to the form 1, the sentence imposed on this offender will need to be greater than that imposed on the co-offender.