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. Facts 1. The facts are before the court by way of a set of agreed facts, those facts including the facts relevant to the multiplicity of matters attaching to the various form one documents. I will deal with the facts of the substantive matters in the order that they appear on the cover sheet of the Crown tender bundle which is exhibit A on sentence. H77739128 – Sequence 13 – Aggravated Break & Enter with Intent to Steal 1. Going first of all to H77739128 sequence 13 which is a charge of aggravated Break enter with intent to steal contrary to s 113(2) of the Crimes Act, 1900. Fosters Joinery is located at 51 Copland Street East Wagga Wagga. The business is owned by Craig Hiscock. The building consists of a shed that has an office area and a workshop. At about 4:30 pm on 25 August 2020 Mr Hiscock secured the premises by locking all doors including the roller doors. 2. Between 4:30 pm on 25 August 2020 and 8 am on 26 August 2020 this offender in company with the co-offender Mitchell attended Fosters Joinery. They went to the power box where they turned off the power to the business. They then went to the front door of the business where this offender used a pinch bar to force open the front glass door, causing it to crack. This offender together with Mitchell entered the business premises went through the office area opening cupboards and drawers looking for cash. They exited the same way they had entered the premises and from there went to the nearby stone works business. 3. At about 8 am on 26 August 2020 Mr Hiscock arrived at his workplace to find that the front glass door had been forced open and a large crack in the front door glass panel. He also noticed that several cupboards and drawers had been opened but he did not identify anything to have been stolen from the premises. 4. The factor of aggravation relied upon by the Crown is of course that the offender was in company of the co-offender Mitchell. 5. Going now to the three matters on the form 1 from the premises of Fosters Joinery, this offender and Mitchell went to the premises of Blarney Stoneworks at 51A Copland Street, which is owned by Robert Leary. That business consists of a shed that has an office area as well as a workshop. Mr Leary left his premises at about 4 pm on 25 August 2020 but before doing so secured the property by closing and locking a large sliding door on the building and padlocking the front gate. Between Mr Leary leaving his premises and about 7:30 am the following day this offender and Mitchell went to the premises and forced open the rear door to the premises using a screwdriver and pinch bar. The two of them then rummaged through the drawers in the shed and office area before exiting the same way as they entered. At about 7:30 am on 26 August 2020 Mr Leary arrived at his premises and noticed the front sliding door was slightly open. He also noticed that drawers in the front office had been pulled out. There was slight damage to the lock on the rear roller door but he did not identify anything to have been stolen. 6. The two charges of Destroy or damage property attaching to the form 1 document relate to the damage occasioned to windows of two separate motor vehicles both of which vehicles had been at the premises of Fosters Joinery. 7. So far as the assessment of the seriousness of the matter is concerned the premises were commercial premises which were entered at a time when no one could reasonably have been expected to be at the premises. Some damage was done in the breaking and entering of the premises but that damage was not substantial. The factor of aggravation relied upon is being in company which is generally considered to be the least serious of all of the factors of aggravation in s 105A of the Crimes Act. Larceny, which carries a maximum penalty of five years imprisonment, is at the cusp of being a serious indictable offence. Although the facts recite that the offender and his co-offender opened cupboards and drawers there is no suggestion that the premises were ransacked. In these circumstances this matter is moderately below the mid-range of seriousness. If necessary, I would make the same assessment in respect of the charge of aggravated Break enter with intent to steal attaching to the form 1 document. The charges of Damage property relate to broken motor vehicle windows and although that would have occasioned inconvenience to the owners of the vehicles the matters are unremarkable examples of that offence. H77739128 Sequence 7 – Aggravated Break & Enter with Intent to Steal – Planet Power at 1/6 Lockyer Street, East Wagga Wagga and Form 1 matters 1. The business Planet Power is located at Unit 1 of 6 Lockyer Street East Wagga Wagga and is located directly opposite Bryant Engineering. The business is owned by Craig Burmeister. The premises consists of an office which is upstairs and a workshop which is downstairs. At about 6 pm on 25 August 2020 Mr Burmeister secured the premises by locking all doors. In the early hours of the morning of 26 August 2020 this offender and the co-offender Mitchell gained access to the building through a side door and after doing so went through the drawers and cupboards in the offices which were upstairs. Mitchell then stood near the roller door while this offender stood near the door keeping a lookout. This offender rummaged through the glove box of the utility as well as the toolboxes that were in the rear of the utility. The offenders were looking for cash but did not take anything. They left the premises the same way as they entered. 2. At about 7:30 am on 26 August 2020 Mr Burmeister arrived at work to find that the front glass door had been forced open he also noticed several cupboards and desk drawers had been opened in the office area. He also noticed the work utility to have been opened as were the toolboxes on the back of that utility. However he did not identify anything has having been stolen. 3. So far as the seriousness of this matter is concerned precisely the same factors apply to this matter as did to the premises of Fosters Joinery. For the same reasons I make the same assessment namely that this matter is moderately below the mid-range of seriousness. Again, I note the aggravation relied upon is the offender being in company. 4. There are two matters attaching to the form one relating to this matter, namely one charge of attempt aggravated break enter with intent to steal and one charge of aggravated break enter with intent to steal. The attempt charge relates to premises at Bryant Engineering at 8 Lockyer Street, East Wagga Wagga. Mr Bryant secured the premises, activated the alarm and left work at about 6:45 pm on 25 August 2020. At about 2:50 am on 26 August 2020 this offender and the co-offender Mitchell pulled up in an SUV on Lockyer Street across the road from the premises. Both were wearing hooded jumpers. They alighted from the vehicle, crossed the road and went to the Bryant Engineering building. The facts recite that a fly screen was removed and a window was forced open with a screwdriver and a jemmy however the alarm sounded and the pair fled the scene. After leaving Bryant Engineering they went to Planet Power. After committing the offence at Planet Power the two offenders went to the nearby premises of Southern Cross Contractors where this offender used a flat screwdriver to make a small gap in the glass front door and then used a pinch bar to open the door. The two offenders had taken approximately five steps into the building when the alarm sounded. They then fled the building and went back to the SUV in which they had arrived at the location. 5. If it is necessary, I would assess these two matters both being below mid-range. H77739128 - sequence 7 - aggravated break and enter and steal - Flame Grilled Chicken 1. The business Flamed Grilled Chicken is located at 69 Baylis Street Wagga Wagga, which is the main street. The business is owned by Maurice Lam. On 20 September 2020 Mr Lam finished work at the shop and secured the premises by locking the front door before leaving. At the rear of the shop is an office which contained two filing cabinets. One of those cabinets contained the till float of $300 in notes and coins. In the other cabinet was $900 in spare coins for the till made up of $500 in two dollar coins, $200 in one dollar coins and $200 in 50 cent coins. 2. Shortly after 3:30 am on 21 September 2020 this offender and Mitchell went to the premises. The two of them attempted to get into the shop through the back door however they were not able to do so. They went to the front door where the co-offender Mitchell used a pinch bar to pop the glass door of the chicken shop open while this offender kept lookout. They both walked into the room that was out the back and found the cash in the filing cabinets and took that cash. They left the premises through the front door through which they entered and later divided the cash equally between themselves. 3. At about 7 am on 21 September 2020 Lam returned to work and entered via the rear door. He immediately noticed that the front door had been damaged. When checking the office he found that $1,200 cash from the filing cabinets had been stolen. 4. Again, it is the situation that the premises that were broken into were commercial premises. The offence was committed at a time when it would have been reasonable not to have expected any person to be present at the premises. $1,200 is not a particularly significant sum but neither is it trifling. There was a small amount of damage occasioned by the break in. This matter is moderately below mid-range. 5. There are two offences on the form 1 document that attaches to this substantive matter, namely one charge of Break enter and steal contrary to s 112(1) of the Crimes Act and one charge of attempted aggravated break enter with intent to steal contrary to s 113(2) of the Crimes Act. 6. The break enter and steal offence was committed at Kitson Real Estate at 1/76 Baylis Street, Wagga Wagga. There is a reception area at the front and sales offices are at the rear. The front door faces Baylis Street. There are two other doors facing the D'Hudson Arcade. This offender used a flat screwdriver and pinch bar to open the door. The co-offender Mitchell kept watch. This offender gained entry into the premises, made his way through to the office and went through filing cabinets and drawers. He stole a diary containing banking information and approximately eight Bunnings store gift cards. Later this offender used that banking information in an attempt to transfer money to his account. The break-in was discovered at about 8:30 am on 21 August 2020 when staff of the business arrived for work. Inside of the business premises the cupboards and drawers were open, paper was spread around all over the floor and office furniture had been moved from the original places in the sales office. Drawers were pulled out and left on the floor with documents strewn all over the place. The staff noticed the banking details and passcodes to the trust accounts was missing along with the eight gift cards. The owner of the premises contacted his bank and froze the business accounts. The bank advised that money had been accessed and there had been an attempt to have money withdrawn. The bank however was able to freeze the transactions and no funds had been accessed. Despite being on a form 1 document, it occurs to me that this matter is at least as serious as the substantive offence relating to the chicken shop. 7. The other matter on the form 1 attaching to sequence 2 of H76463356 is an offence of attempted aggravated break enter with intent to steal contrary to section 113(2) of the Crimes Act. This offence relates to the Flirt Adult Store located at 190 Baylis Street Wagga Wagga. At about 3:10 am on 21 September 2020 this offender and Mitchell went to the rear door of the premises. They ripped off a lock box from a nearby wall which contained a key to the back door. They smashed the lockbox open to access the key and then used the key to open the rear door, however, the alarm was activated and both fled the area. It is accepted that the offender and Mitchell opened the door for the purpose of entering the premises to steal. If it was necessary, I would also assess this matter at being moderately below mid-range. 8. This offender and Mitchell then walked south on Tongaboo Lane where they went to the rear door to the Sister City walkway at 102 Baylis Street Wagga Wagga. At 3:21 am this offender and Mitchell gained entry to the main power room by forcing open the doors. This offender turned off the power while Mitchell kept lookout. The doors to the power room were destroyed in the process. The offenders were unsuccessful in gaining access to the walkway. H77739128 sequence 9 - aggravated break enter and commit serious indictable offence (steal) - Boleek Jewellers. 1. The business Boleek Jewellers is located at shop 2 of 104 Baylis Street Wagga Wagga. Mr Ian Humphrys is the proprietor of the business. The premises consist of a workshop area and a retail shop area. The Sister City walkway is next to Boleek Jewellers and there is a public lavatory located in the walkway. The toilet abuts the jeweller's premises. 2. Inside the jeweller's shop was a black coloured 40 kg safe which was bolted to the top of a 400 kg safe. The 40 kg safe was worth $400. Inside the safe was jewellery that belonged to various customers that had been repaired and was awaiting collection. The facts recite the total contents of the safe was about $50,000. The jewellery inside the safe consisted of containers of loose white diamonds, 50 g of 9 carat gold stock metal, various customers' rings, chains, earrings and bracelets. 3. On 25 September 2020 Mr Humphrys locked up the safes, activated the alarm, secured the premises and left. At about 1:25 am on 27 September 2020 this offender and Mitchell attended the rear doors to the Sister City walkway again. The two of them climbed onto the roof of the walkway before gaining access to the roof cavity via a skylight. While in that roof cavity this offender and Mitchell crawled through so that they were above the Boleek Jewellers shop. There they dropped down from the ceiling cavity into the store. While in the store this offender and Mitchell located the smaller black safe attached to a larger safe and they managed to get the black safe off the other safe. Using a ladder that was in the premises they lifted the safe into the roof cavity where they attempted to move the safe through the roof cavity. It was however too heavy and dropped from the roof cavity through the ceiling into the toilet block that was located in the Sister City walkway. This offender and Mitchell then pushed the safe through the walkway to the rear doors, which they opened using the inside lock. This offender and Mitchell carried the safe into the car park where they hid the safe before returning to the walkway. 4. Mr Humphrys arrived at work at about 8:45 am on 28 September 2020 when he unlocked the front door and walked inside. Upon entering the premises, he noticed that a ceiling panel had been lifted and there was a gap in the ceiling. He also noticed that items within the store had been disturbed and the ladder was not where he had left it. He also noticed the 40 kg safe was missing. He also observed the toilet abutting the jewellers shop had been smashed to pieces and pieces of the ceiling panels were smashed and no longer usable. 5. Noting the efforts to which this offender and the co-offender went and noting in particular the value of the property that was taken, I am of the opinion that this matter is at the low end of the mid-range of seriousness. This assessment includes the damage that was occasioned to the various premises that this offender and his co-offender accessed. 6. There are four matters on the form 1 document attaching to the substantive matter relating to the offence at Boleek Jewellers. Those four offences are one count of larceny and three counts of break enter and commit serious indictable offence (steal). 7. The charge of larceny relates to an offence that occurred on 25 or 26 August 2020 where this offender smashed the side window of a utility at business premises in Nagel Street, East Wagga Wagga and stole a backpack containing a laptop computer from that utility. The facts recite that this offender also broke into and rummaged through another vehicle but nothing was taken from that other vehicle. This offender broke into the two vehicles and Mitchell was a lookout while this was occurring. 8. The first of the aggravated break enter and steal offences attaching to the form 1 relate to S & E Hair and Beauty located at shop 3 of 104 Baylis Street, Wagga Wagga. The shop is also in the Sister City Walkway and the door to the shop is accessed from that walkway. At about 1:15 pm on 26 September 2020 the proprietor of that business, Ms Honeysett, finished work and secured the premises. After returning to the walkway after committing the offence at the jewellers shop, this offender and Mitchell returned to the walkway and kicked open the door to the hairdressers shop. They stole a hair straightener and $10 in change located in a small black box. On Sunday, 26 September 2020 at about 11 am the proprietor attended the premises after receiving a call advising that the shop had been broken into. She identified the change in the box had been taken along with the hair straightener that was worth $280. 9. Also located in the walkway is the premises of Skins Barber Shop. The proprietor of the business, Ms Gabriel Flint, secured and left the premises at about 3 pm on Saturday, 26 September 2020. After committing the offence at S & E Hair and Beauty this offender and Mitchell prised open the front door using a screwdriver and once inside stole two pairs of scissors. The break-in was discovered when Ms Flint arrived at work on the morning of Monday, 28 September 2020. 10. The remaining matter on the form one attaching to the substantive offence relating to Boleek Jewellers is a further charge of aggravated break enter and steal committed at the premises of Lun Massage which is also located at 104 Baylis Street, Wagga Wagga. The business was operated by Mr Gumring who finished work at about 4:30 pm on 26 September 2020 and secured the premises by locking the door at the Sister City walkway. After committing the offences at the other premises at the walkway this offender and Mitchell gained access to the massage business through the internal door and stole three tubes of oil, eight cream bottles, a bottle of hand sanitiser and a key to the rear door. The total value of the property was about $150. The break-in was discovered when the proprietor arrived to commence work at about 9 am on 28 September 2020. 11. The three charges of aggravated break enter and steal attaching to the form 1 document to sequence 9 are all well below mid-range. The larceny is also below mid-range but not significantly so. Criminal History 1. The offender was born on 14 September 1989 and accordingly was 31 years of age at the time of the offending. Even ignoring the substantial record in the Children's Court, the offender has a record that does not entitle him to any particular leniency. He has been convicted and sentenced to imprisonment for offences of assault occasioning actual bodily harm, steal from the person, enter into building with intent to commit an indictable offence, larceny and serious driving matters including driving whilst disqualified. He has also been convicted of common assault, stalk/intimidate and possess prohibited weapon without permit. He also has a number of break enter and steal matters on his criminal history. General Deterrence 1. The Court of Criminal Appeal in the decisions of Harris v R [2007] NSWCCA 130 and Merrin v R [2007] NSWCCA 255 made clear that there is a very real issue of general deterrence to be addressed when sentencing offenders for break enter and steal offenders particularly if they are repeat offenders. It is no hyperbole to describe what this offender and the co-offender engaged in over a few days in September 2020 as a crime spree. Disruption would have been caused to numerous businesses. Further considerable inconvenience and cost would have been occasioned to those businesses not only for the loss of the property that was taken but also to repair the damage that was done at the time that the offences were committed. 2. The Court in Merrin also made clear that wholly concurrent sentences should not be imposed even where the multiple offences are committed on the one episode of offending. As I have already observed, given the number of matters including a number of relatively serious matters attaching to the various form 1 document those matters on the various forms 1 must have some meaningful impact on the ultimate sentence that is imposed on this offender. 3. The decisions of Harris and Merrin of course relate to offences committed at domestic premises, however, as I observed in my ex tempore remarks on sentence when sentencing the co-offender the later authorities of Clifford [2008] NSWCCA 190 and French [2010] NSWCCA 24 make it clear that the same principles apply to commercial premises. Subjective case 1. No oral evidence was called by or on behalf of the offender, however a comprehensive psychological report prepared by Luke Brabant of LSC Psychology was tendered on behalf of the offender. 2. At paragraph 60 the author of the report notes that the offender identifies as Aboriginal, that he was a sound historian but experienced difficulty in providing a clear account of his complex history. The offender demonstrated no overt evidence of formal thought disorder or active symptoms of psychosis. 3. The report sets out that the offender was raised in Wagga Wagga and is the eldest of four children. He was exposed to antisocial behaviour including violence, substance abuse and criminal activity from an early age. His mother abused heroin and spent much of his early years in custody. The offender's mother also spent the family's money on heroin which caused financial strain. The offender's parents separated when he was about eight years of age and he continued to reside with his father when his mother relocated to the Wollongong area. The offender told the author of the report that he would stay with his mother in Wollongong but ceased to do so when he was about 11 years of age due to the abuse that he suffered at her hands. This included significant physical violence 4. The offender's father abused alcohol and became violent when intoxicated. The offender witnessed physical fighting between his parents and his also suffered physical abuse from his father. The offender reported that the violence was unpredictable, leaving him feeling hypervigilant around his father and he had absconded from the home on a number of occasions. His father re-partnered when the offender was about 12 and although they moved into a new home he continued to suffer neglect with little parental supervision. He also suffered emotional abuse from his stepmother. 5. Further to the deprivations that the offender suffered in his formative years the report recites that the offender was made to leave home by his father when he was 14 years of age. He stayed with friends through the remainder of his adolescence but the people with whom he stayed were involved in criminal activity and he began engaging in crime in order to support himself. He was sentenced to detention in juvenile institutions. He was also the victim of sexual abuse by staff of one of the centres; he disclosed that abuse in early 2021 and is seeking redress through the national redress scheme. 6. The offender advised the author of the report he has lived in Wagga Wagga throughout his adult life and stated that he had never had independent accommodation and lived between friends, intimate partners' residences and adult custody. In April 2020 he went to Sydney to live with his godfather in an attempt to abstain from illicit substances and to desist from offending. While this was initially successful, he relapsed by resorting to crystal methamphetamine (ice) after he went to a cousin's funeral in Wagga Wagga. He has submitted an application for social housing for the first time and hopes to reside in the Newcastle area upon his release where he has a half sister with whom he has recently reconnected. 7. Clearly with the issues and deprivations to which this offender was subject in his formative years, the principles enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 are enlivened to a significant extent, reducing the moral culpability of this offender to that extent. 8. The report goes on to record that the offender experienced difficulties in school and had difficulties with learning. He was diagnosed with ADHD early in the school career and was subsequently prescribed dexamphetamine. He was expelled halfway through year eight and accordingly has limited formal education. He has little in the way of work history. The author notes that the offender's chronic history of substance abuse has also been a causal factor in his unemployment. 9. On that issue of the offender's chronic history of substance abuse, the report notes that the offender first smoked cannabis when he was 11 years of age, having accessed that substance through others in the neighbourhood. He engaged in daily use of cannabis until he was 13, at which age he commenced drinking alcohol. His drinking soon became a problem and he commenced smoking crystal methamphetamine in his early twenties. 10. He commenced smoking methamphetamine when he was about 23 and this rapidly escalated to daily use which has been maintained over time developing into a dependence on the substance. His longest period of abstinence was between April and August 2020 which was assisted by his relocation from Wagga Wagga to Sydney. The offender reported to the author of the report that he no longer has cravings for substances and plans to maintain abstinence from the substance upon his release into the community. It appears from the report that the offender has some insight into the connection between his offending and his use of substances. Mr Jackson, counsel for the offender, submitted at the sentence hearing that the offender had been abstinent whilst in custody. I am prepared to accept that this is the case noting the lack of any prison disciplinary offences relating to drugs during the present period the offender has been in custody 11. The offender also reported problem gambling to the author of the report. 12. The offender told the author of the report that the motivation for the offences for which he now appears for sentence is consistent with that of prior adult offending and intoxication by ice. The offender expressed contrition for his actions and identify possible consequences for the victims of his offending. Counsel for the offender at the sentence hearing submitted that I would find that the offender was remorseful. I am prepared to find on balance the offender is remorseful but that finding of remorse does not achieve the same weight as it might have if the offender had given oral evidence. I note that the report simply recites that the offender expresses contrition for his actions. 13. At paragraph 30 of the report the author notes that the offender had told him that he had participated in cognitive testing during his primary school years and was subsequently diagnosed as borderline retarded. Because the assessment was being conducted by AVL, formal cognitive testing could not take place. However the author noted that the offender's presentation during the interview, reported academic issues throughout his education, and placement in a special school for children with learning and behavioural difficulties are supportive of the offender having lower intellectual functioning. The offender did not show symptoms of a depressive disorder, anxiety, mania or psychosis beyond episodic visual hallucinations and paranoia during periods of acute intoxication with methamphetamine. 14. The author of the report at paragraph 36 states that the offender requires psychological intervention to address his history of childhood trauma. He also notes that the offender may be eligible for a mental health care plan. It is recommended that the offender engages in a psychiatric evaluation to assess suitability to recommence medication to address his ADHD. The author of the report notes that this would likely be more accessible to the offender in the community than in custody. However given the multiplicity of offending it is inevitable that a sentence of full-time custody must be imposed on the offender. Mr Jackson did not submit otherwise. 15. It is further recommended by the author of the report that the offender be referred to an initial transitional support service linked to the relevant community corrections location where he is to be released. 16. Given the detailed nature of the report and the number of recommendations it is appropriate that a copy of the report be made available to the Department of Corrective Services and I will direct the Registrar to forward a copy of Exhibit 1 on sentence to the Department of Corrective Services with the relevant warrant. 17. Clearly there must be a finding of special circumstances made in this matter. The facts going to such a finding include in no particular order are the need for a lengthy period of supervision to assist with reintegration into the community, to ensure that the offender remains abstinent from illicit substances and assistance with mental health issues. I did not understand the Crown to oppose a finding of special circumstances in this matter. 18. Given the offender's criminal history and breaches of conditional liberty, I cannot find on balance that he is unlikely to offend or that there are good prospects of rehabilitation. Submissions 1. Mr Jackson helpfully produced the bulk of his submissions to writing and his written submissions are MFI 1 on sentence. It is uncontroversial that the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty. Mr Jackson submits appropriately that the factors enunciated by the High Court in Bugmy v The Queen are enlivened. I have already found that those factors are enlivened to a significant extent. The written submissions address the general background of the offender which I have addressed in dealing with the various issues raised by the author of the psychological report which is Exhibit 1 on sentence. I have also dealt with the issue of childhood exposure to domestic and family violence when dealing with the report. 2. At paragraph 49 of the written submissions Mr Jackson makes brief submissions as to the objective seriousness of the various matters. I agree that the offending while showing some planning was relatively unsophisticated and that there were no persons present at the business premises at the time the offences were committed. I presume that when Mr Jackson submits that the items mostly were of little personal importance to the victims, he means that the items stolen did not have any particular sentimental value. Whilst that is the case as I have already observed significant inconvenience was occasioned to a multiplicity of proprietors of small businesses. 3. I have already set out that there must be a finding of special circumstances in this matter. 4. At the sentence hearing Mr Jackson made brief oral submissions relying mainly on his comprehensive written submissions. It was put on behalf of the offender that the offender has come to realise that Wagga Wagga and he do not mix and he plans to relocate to the Newcastle area upon his eventual release. 5. Mr Jackson also submitted on the issue of the COVID-19 pandemic. This is an issue that is relevant when any custodial sentence is being contemplated. The pandemic has made it more onerous for people in custody with a greater number of and longer lockdowns. Further there is the issue of isolation whenever an inmate is moved from one institution to another. I take into account the various authorities on the issue of the pandemic including Valentine v R [2020] NSWCCA 116, Mbele v R [2021] NSWCCA 182 and Toller v R [2021] NSWCCA 204. 6. At the sentence hearing it was also put, and I accept, that the offender has almost completed the remand addiction program, having completed 17 out of 20 sessions. 7. A submission was also made as to the issue of parity with the co-offender Mitchell. Parity is certainly something which will loom large so far as the sentence on most of the offending is concerned. However Mitchell was not dealt with in respect of the offence at the Boleek Jewellers. That is the most serious matter for which the offender appears for sentence. There was also an issue of assistance so far as the offender Mitchell was concerned . Mitchell was 25 years of age at the time of the offending and he too had a history that does not entitle him to any particular leniency. In particular I note on 1 December 2020 an aggregate sentence of 26 months with a non-parole period of 14 months was imposed on Mitchell in respect of a multiplicity of offending including a number of aggravated break enter and steal offences. 8. Mitchell has a criminal history that does not entitle him to any particular leniency. There is very little to distinguish the offending between this offender and the co-offender except of course as I have already made plain Mitchell was not sentenced in respect of the offending at Boleek Jewellers. The court was not advised as to why that was the case. Mitchell also had a strong subjective case. In respect of the matters where this offender and Mitchell were co-offenders any variation in sentence or at least the starting point thereof would be so slight as to be of no consequence. In those circumstances it seems appropriate that the starting point for the matters where this offender was a co-offender with Mitchell would be the same. 9. In that regard I am grateful to the representative of the Crown who has produced a table setting out the sentences imposed on the co-offender Mitchell. That document has been marked as an MFI. General Remarks 1. In passing sentence I will need to give effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community. 1. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalties provided for, the criminality involved, the need for general and specific deterrence clearly no other sentence than full time imprisonment is appropriate. No contrary submission is made by counsel for the offender. 2. At the sentence hearing I understood it was agreed between the parties that the appropriate commencement date of the sentence was 16 December 2020. Accordingly, that is the date on which I will commence the sentence to be imposed in these matters 3. This is an appropriate matter for an aggregate sentence to be imposed. If separate sentences were imposed, there would need to be some degree of partial accumulation to recognise the different offending and the different victims. 4. It will be necessary therefore to set out the sentences that would have been imposed had separate sentences been imposed. Those sentences are: 1. In respect of H77739128 Sequence 13 relating to the offence of Break Enter and Steal at Fosters Joinery, taking into account the matters on the Form 1 a total sentence of 2 years 3 months indicating a starting point of 3 years. I note that this was the same starting point as for the co-offender Mitchell; 2. In respect of H77739128 sequence 7 relating to the offence of Break Enter and Steal at Planet Power, taking into account the matters on the Form 1 document, a total sentence of 2 year 7 months indicating a starting point of 3 year 6 months; 3. In respect of H76463356 sequence 2, relating to the offence of Aggravated Break Enter and Steal at Flame Grilled Chicken, taking into account the matters on the Form 1 document, a non-parole period of 17 months with a balance of term of 10 months making a total sentence of 2 year 3 months indicating a starting point of 3 years. I note that the co-offender Mitchell was not sentenced in respect of this matter although he was sentenced in respect of a Break Enter and Steal simpliciter offence relating to Kitson Property, which is one of the matters on the Form 1 document; 4. In respect of H77739128 sequence 9 relating to the offence at Boleek Jewellers, taking into account the matters on the Form 1 a non-parole period of 2 years 1 month with a balance of term of 1 year 3 months making a total sentence of 3 years 4 months indicating a starting point of 4 years 6 months. I note the co-offender Mitchell was not sentenced in respect of the matter relating to Boleek Jewellers nor does an offence relating to those premises appear on any of the Form 1 documents attaching to the various matters for which Mitchell was sentenced. Orders 1. In respect of each of the matters to which the offender has pleaded guilty he is convicted. 2. Consequent upon those convictions the offender is sentenced to an aggregate sentence of 5 years 6 months with a non-parole period of 3 years 4 months. 3. The non-parole period is to date from 16 December 2020 and will expire on 15 April 2024. The balance of term on parole will commence on 16 April 2024 and will expire on 15 June 2026. 4. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release. 5. The non-parole period is 63% of the total sentence indicating a finding of special circumstances the reasons for which were enunciated earlier within these reasons. 6. I direct a copy of the report of Mr Luke Brabant, exhibit 1 on sentence, be forwarded to the Department of Corrective Services with the relevant warrant. ***** 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: 18 July 2022