District Court New South Wales Medium Neutral Citation: R v Nean [2024] NSWDC 644 Hearing dates: 18/11/24 Date of orders: 18/11/24 Decision date: 18 November 2024 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Convicted and sentenced to a term of imprisonment of 2 years 11 months with NPP of 2 years (14/2/24-13/2/26). I find special circumstances. Form 1 taken into account. A 25 percent discount has been taken into account. I direct that the psychologist report of Dr Gumbert dated 21/10/24 be forwarded to Justice Health. Catchwords: Crime – Sentence – Break, enter and steal Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v The Queen [2013] HCA 37 Commonwealth DPP v De La Rosa [2010] NSWCCA 194 Ponfield v R (1999) 48 NSWLR 327 R v Millwood [2012] NSWCCA 2 Category: Sentence Parties: NSW DPP – Crown Troy Nean - Offender Representation: Ms Hill for Crown Mr Fernandez for Offender File Number(s): 23/458010 remarks on sentence 1. The offender, Mr Troy Nean, is for sentence today in relation to an offence under s 112(1)(a) of the Crimes Act 1900, being an offence of break, enter and steal, the maximum penalty for which is 14 years imprisonment. In addition, he asks that in sentencing him I take into account another offence to which he admits his guilt on a Form 1 document, that being an offence of attempting to dishonestly obtain a financial advantage by deception. 2. The maximum penalty for the substantive offence to which I have made reference, is of course an important guidepost in the sentencing exercise, and I have had regard to that. There is no standard non-parole period I note. The offender pleaded guilty at the earliest opportunity and therefore will be given a 25% discount by reason of the utilitarian value of that plea. FACTS 1. The facts are agreed and are essentially as follows. 2. The break, enter and steal offence related to a property at a suburb called Whitebridge, the owners of which were persons by the name of Shakespeare. That was a four-storey house situated on a 10,000 square metre block where the first two levels of the house were accessible from the ground. On Sunday, 15 October 2023 the victims, namely the residents of the house, left their property and drove to Queensland. 3. Sometime between Monday 16 and Tuesday 17 October 2023 this offender broke into their property by smashing the lounge room window. He then ransacked most of the rooms in the house and emptied clothing onto the floor. He stole various items of jewellery, as well as Australian and foreign currency, two pairs of binoculars, some virtual reality goggles, an Apple iPhone 6, a bottle of port, an Xbox gaming system and a Porsche vehicle insured for $260,000. 4. The bottom level of the house is noted in the facts as having comprised five garages with multiple garage doors. At the time of the offending there were three cars stored inside the garages. Around 9pm on Tuesday, 17 October 2023 the victims received a call from police noting that they had found the Porsche vehicle abandoned in Hamilton South. After this call the victim contacted his son and a neighbour and asked them to check his property. The victim's son informed him that the house had been broken into and that keys to his cars were missing. 5. As a result, the remaining two cars were towed away to ensure they were not taken by someone. Because the victims were away interstate, they arranged for a security guard, family and friends to stay at the house until they came home. They also had to have the locks on the house changed. 6. During the break and enter offence the offender wrote himself a cheque in the amount of $5,000 using one of the victim's cheque book. He made it out to Troy Knight and dated it 19 October 2023. Records from the relevant bank showed that the money referred to in that cheque did not, however, enter any account controlled by the offender. The facts note that communication on the offender's phone between himself and one of his daughters indicated that this money was intended to go to her and the offender's other daughter. 7. I note in evidence today that the offender confirmed that he has two daughters, one aged 14 and the other aged 16, as I recall. A mobile phone was found discarded on a neighbour's property a few days after the break and enter, and a Cellebrite examination revealed that that phone contained evidence of the break and enter, and that phone was later linked to this offender. 8. On Friday 3 November 2023 the victim received an email from the "Find My iPhone" app about his iPhone 6 that had been stolen and which noted that it had been activated the previous night in the vicinity of an address in Hamilton South. When the victim accessed the app he noted that the phone was still at that address. The facts note further that a couple of weeks later the stolen Porsche vehicle was returned, which had stolen jewellery inside. The car had some small damage to the front spoiler, but it is not suggested that this offender was responsible for that damage. 9. Police on 14 November 2023 attended an address in Hamilton South to execute a search warrant, and upon entry they found, amongst various people inside, the offender, and also other items which were seized, including jewellery, electronics and clothing. I note that the offender was arrested on that day, 14 November 2023. Those are the relevant facts of the offence, and also of the matter on the Form 1 document. OBJECTIVE SERIOUSNESS 1. In relation to the objective seriousness of the substantive offence, I firstly note that the maximum penalty for that offence, being 14 years imprisonment, is a matter which obviously marks it as potentially a very serious offence. Offences of breaking and entering and stealing have been regarded as serious for many years, in part due to their prevalence, and because also of the harm that they cause. Victims lose property, sometimes of great monetary value, sometimes property which has sentimental value far beyond its monetary worth. 2. Just as important, however, is probably the psychological harm which such offences can cause by the loss of a feeling of security in the sanctity of the home, and the invasion of privacy which such offending involves. Offences of this kind are offences which have led to the prevalence of things like bars on windows, burglar alarms, CCTV cameras, and increasing insurance premiums. It is for these reasons that offences of this kind must be dealt with in a manner which gives substantial weight to the need for general deterrence. 3. The objective seriousness of this type of offence is to be assessed by reference to various matters, many of which were set out in the well-known decision of Ponfield v R (1999) 48 NSWLR 327. However, I note that most of those matters are now contained in s 21A of the Crimes (Sentencing Procedure) Act 1999. It seems to me that the following matters can be said about the relative objective seriousness of the substantive offence that is before the Court. 4. Firstly, the offence involved breaking into a residential dwelling house. In other words, it involved the victim's home. Secondly, it was not a mere technical "breaking", for example by opening an unlocked door, but involved the offender actually smashing a lounge room window, causing actual damage to the property. Thirdly, the offender effectively searched and ransacked most of the rooms in the house, emptying various items onto the floor. 5. This was, therefore, an example of a very personally invasive offence from the perspective of the persons who ordinarily resided in the house. Fourthly, the items taken had considerable value, being something in excess of $260,000, that being merely the insured value of the motor vehicle, although I note that there is evidence in the facts that the motor vehicle was subsequently recovered, as was the stolen jewellery. 6. Nonetheless, it has to be said that the value of the items stolen was considerable, which no doubt explains why the matter is being dealt with in this Court and not the Local Court. It was also submitted by the Crown that the offence was committed for financial gain. While that is so, I do not regard this as adding materially to the objective seriousness of the offence, given that financial gain is the motivator for the vast majority of break, enter and steal offences. 7. It was submitted on behalf of the offender that the seriousness of the offence is mitigated to some degree because it was opportunistic and short in duration. However, I understood in submissions this afternoon that those submissions were either abandoned or not pressed in any substantial way. Those concessions were reasonable ones, in my view, because there is no evidence one way or the other as to whether this offence was merely opportunistic, or whether it involved substantial planning. I approach it therefore on the basis that while I cannot be satisfied that it was merely opportunistic, I do not approach it on the basis that it was the subject of substantial planning, or any real sophistication. Nor do I accept that the offence was short in duration, given that this was obviously a large house where most the rooms were searched and ransacked. 8. Having regard to the various matters I have made mention of, it seems to me that the offence sits slightly below the mid-range of objective seriousness. While not relevant to objective seriousness, the overall criminal picture in this case in terms of the need for punishment, and some of the other important purposes of sentencing, is added to by the fact that the offender has a reasonably substantial criminal history, which has seen him serve a number of terms in custody. SUBJECTIVE MATTERS 1. Turning then to subjective matters, the offender is a 35 year old man of First Nations people heritage. His subjective case has been placed before the Court by means of some written material, primarily the psychological report of Dr Thea Gumbert, as well as some evidence on oath that was given this afternoon by the offender. 2. The offender had a bad start to life, through no fault of his own. His parents abused alcohol and drugs, and did not provide him with the stability that he should have had. Also he was exposed to significant domestic violence in the form of violence by his father upon his mother, which was at times also directed at the offender himself. As a result of this background, he was largely raised by his grandparents. 3. The offender also said in his evidence this afternoon that he was, as a school child, subject to some sexual abuse by another student. He was really not challenged to any extent by the Crown on this topic. I note that he made no reference to this in his interview with the psychologist, and he said that there were various reasons for that. While the recent suggestion of this is something that does go to the credibility of the claim, in circumstances where that evidence was really not the subject of any substantial challenge by the Crown, I act upon it as being part of his background. 4. Not surprisingly, with the offender's background, including his childhood obviously, his schooling was disrupted and he left in year 10. After that he became a regular user of cannabis and other drugs, but in more recent times apparently "ice" has been his "drug of choice". He says, however, that during his current period in gaol he has been on the Buvidal replacement program and has avoided drug use and feels much better for it. 5. Whether he can remain off the drugs on release, however, is still to be seen. He says he would like to remain drug free, although it has to be said that he does not appear to have any concrete plans about exactly how he is going to achieve that. The offender has a history of some employment, and as I have said, he has two daughters who are teenagers and do not live with him, but apparently are attending boarding school, having been the subject of scholarships. MENTAL HEALTH 1. He has never been diagnosed with any mental illness. However, the psychologist concluded that he has extremely severe depression and anxiety, with a moderate score in terms of stress. The psychologist concluded that it is very likely that the offender's depression and anxiety are entwined with complex trauma, and she also raises a question, although without an answer, as to whether the offender has some sort of Autism Spectrum Disorder. She notes, however, that while the offender's presentation is complex, he has had virtually no treatment or proper assessment. BUGMY 1. The offender's childhood upbringing raises consideration of the well known principles discussed in Bugmy v The Queen [2013] HCA 37 and other cases such as R v Millwood [2012] NSWCCA 2, where the relevance of deprived childhood background are discussed for the purposes of sentencing. This case before the Court is not a case of sudden "loss of control" which might perhaps be regarded as a "classic" Bugmy type case. However, in saying that, I am fully aware that there are no bright lines which separate Bugmy type cases from non Bugmy type cases, and also I do not suggest that a deprived background can only be relevant to sudden or impulsive offending. 2. In this matter I accept that the offender's background as a child and adolescent has operated on him all his life. While it did not contribute directly to the offence before the Court, it did make an indirect contribution because it put him on his current path of being more likely to abuse drugs, and more likely to make poor decisions, such as the one that brings him here. I accept, therefore, that his background reduces his moral culpability to some degree. His moral culpability, however, must still be regarded as moderately high, especially as this is an offence of some deliberation, involving the comprehensive ransacking of a person's home, and the theft of a very expensive car and other items. REMORSE, RISK, AND REHABILITATION 1. There is genuine remorse in this case, as the Crown accepts, and the offender therefore receives the benefit of that. 2. In terms of his prospects of rehabilitation and his risk of reoffending, it is relevant to note, firstly, that the offender has a reasonably substantial history of criminal offences, starting from when he was relatively young. However, his history of offences of this kind involving breaking and entering is relatively limited, and consists, as I recall, of only two such matters. One committed in 2011 and the other within about a week of the matter that is before the Court. 3. In terms of his future prospects, it is positive that he has since being in custody, according to his unchallenged evidence, stayed off drugs, no doubt assisted by his being on the Buvidal program. It is also positive that he has engaged himself in some useful work where he does some cabinet making type work, as I recall, and has also engaged in a number of programs and courses which are attested to by a number of certificates that have been placed before me today. 4. On the other hand, his criminal history, and in particular his history of breaching court orders is a matter which does not assist his prospects of rehabilitation, or his future risk prospects. It is also of some concern that he told the psychologist that he has difficulty effectively fitting into the community, and "feels better able to relate to other inmates than other people in the community", which is a bit of a concern, as I have said, because it may suggest that to some extent he is becoming institutionalised. 5. As I have said, however, there are some positive aspects, one of them being the psychologist's observation that, according to the offender, he has put on considerable weight since being in custody, and feels better having been off the drugs. There is also the certificates and the work that he has engaged himself in. There is also his motivation to be a better parent to his two girls once he is released from custody, and perhaps to have some contact with them. Having regard to all of the evidence, it seems to me however that he remains a material risk of some reoffending, and I do not consider that his prospects of rehabilitation can be said to be more than guarded, although I hope ultimately that I am proven wrong about that. 6. Another factor I have taken into account in determining sentence is the conclusions that the psychologist reached in relation to the offender's mental state. As I have referred to, he is noted to have some significant depression, and possibly other complex trauma, and in accordance with the principles referred to in the well-known case of Commonwealth DPP v De La Rosa [2010] NSWCCA 194, it seems to me that that mental state is something that will make his custody period somewhat more onerous, and has already done so, given the time that he has already spent in custody. DETERMINATION 1. Coming then to my ultimate determination. Firstly I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 which I do not intend to recite, save to say that given that I have made a finding that his moral culpability is reduced to some degree, I accept that principles of general deterrence are therefore reduced to that degree. The other aspects referred to in that section are all of relevance in this sentencing exercise. 2. I also accept that, as was submitted, the threshold referred to in s 5 of that Act is crossed, in that no penalty other than imprisonment is appropriate. SPECIAL CIRCUMSTANCES 1. I intend to make some adjustment by means of a finding of special circumstances, that being on the basis of the risk of institutionalisation, and also the somewhat positive signs in terms of the offender's insight and his attempts since being in custody to engage himself in useful work, and his desire to get some sort of treatment once he is back in the community. 2. As I earlier noted, there is a Form 1 to be taken into account. as is well-known, matters on a Form 1 document can be taken into account in reflecting the need for personal deterrence, and the community's entitlement to exact retribution for serious offences. It seems to me that the matter on the Form 1 document, while nowhere near as serious as the substantive offence, is an offence that should exert at least some upward pressure on the ultimate sentence for the substantive offence. That pressure, however, should not be great. BACKDATING 1. The question of backdating and the principle of totality are of some importance in this case. That is because not all of the offender's time in custody since his arrest on 14 November 2023 has been due to the offence before the Court. A period of two months and 24 days has been due to his parole being revoked on an existing sentence. 2. Furthermore, he has also been subject to a term of imprisonment of 14 months with a non-parole period of nine months, which dated also from 14 November 2023, that being the date of arrest for both this offence and another breaking and stealing offence that was committed about one week after the offence that is before me. I have a discretion to exercise in relation to questions of backdating sentence. TOTALITY 1. Totality considerations mean that I need also to pay regard to what sentence would have been imposed if, for instance, that other breaking offence had been dealt with at the same time as this one. In my view the best way of dealing with this is to backdate the current sentence to a date preceding today. However, it would not be appropriate to backdate this sentence completely to 14 November 2023. I reach that view because, in my view, to do so would mean that the offender would have received no punishment for the October 2023 offence. In the circumstances I intend to commence the sentence on 14 February 2024. In other words three months after his date of arrest. 2. The sentence I impose is as follows. I impose a head sentence of two years 11 months. That is taking into account the 25% discount for the plea of guilty and taking into account the Form 1 document. I impose a non-parole period of two years. Each of those will date from 14 February 2024. The head sentence therefore will expire on 13 January 2027, and the non-parole period will expire on 13 February 2026. 3. HIS HONOUR: Anything to raise factually or in relation to those dates? 4. FERNANDEZ: No. 5. HILL: No. 6. HIS HONOUR: I intend also to direct that a copy of the psychological report be sent to Justice Health. Do you have any problem with that Mr Fernandez? 7. FERNANDEZ: No. 8. HIS HONOUR: I direct that a copy of the report of Dr Gumbert be sent to Justice Health. Mr Nean, you heard all of that? 9. OFFENDER: Yeah. 10. HIS HONOUR: I hope you do something about getting some treatment. It is not going to just come to you automatically. You are going to have to do something about it. 11. OFFENDER: Yeah. ********** 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 February 2025