New South Wales District Court CITATION: R v Bruno PAMPUSA [2009] NSWDC 240 JUDGMENT DATE: 24 July 2009 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: Non-parole period of 2 years. Balance of term of 1 year. Conditions of parole - upon release Mr Pampusa is to be brought to the of the Probation and Parole Service nearest to where he is living and subject himself to supervision. He is to accept all of their reasonable reccomendations and directions, especially with regard to drug rehabilitation and counselling. CATCHWORDS: CRIMINAL LAW - sentence - plea of guilty - break enter and steak - long criminal history of similar offences - in custody for similar offence at time of sentence - financial difficulties - remorse - rehabilitation in context of previously transient lifestyle - whether sentence should be concurrent with current sentence LEGISLATION CITED: Crimes Act 1900 s 112(1)(a) Crimes (Sentencing Procedure) Act 1999 s 21A CASES CITED: Veen v The Queen (No 2) (1998) 164 CLR 465 PARTIES: Regina Bruno Pampusa FILE NUMBER(S): 2009/11/0375 SOLICITORS: Director of Public Prosecutions Legal Aid Commission of NSW JUDGMENT 1. Bruno Pampusa has been charged with one count of break and enter and steal. That is an offence against s 112(1)(a) of the Crimes Act 1900 and carries a maximum of fourteen years imprisonment. 2. Mr Pampusa has a long criminal history which includes many offences of the same kind. He has been sentenced by courts to imprisonment for this kind of offence on numerous occasions. In fact he is presently in custody under sentence imposed by the Local Court for such an offence. 3. The issues for me to consider in sentencing Mr Pampusa are raised by Mr Evenden who appears on his behalf and who points to events which have turned Mr Pampusa's life around to some extent and which should justify me in imposing a sentence for this offence which will expire - so far as the non parole period is concerned - not long after the current non parole period he is serving. But Mr Nathan who appears for the Director of Public Prosecutions acknowledges the force of the personal factors in Mr Pampusa's life but draws my attention to the need for imposing a sentence which is not completely or significantly concurrent with the penalties which he is presently serving. 4. It is important to set out briefly what happened in this case. The offence occurred somewhere between 26 October and 30 October 2008. Mr Pampusa has pleaded guilty to the charge. He broke into a house in Botany Street, Bondi Junction and stole two backpacks, a jar of coins, an Ipod and a passport. The place was occupied by two Irish backpackers. When police came to inspect the scene of the crime they found plenty of forensic evidence, including fingerprints, which enabled them to link the crime with Mr Pampusa. He was formally charged on 6 February 2009 when he was in custody serving the sentence which he is currently serving. 5. I have made reference to Mr Pampusa's previous record and it is appropriate to refer to it now. He is presently thirty-three. He has a couple of items which reflect offences as a child but most of his offending has been as an adult. He has been sentenced for many offences of break, enter and steal and other offences including possessing a housebreaking implement, stealing and goods in custody. As I said he has on many occasions been sentenced to imprisonment. The most serious offence is one which was committed in 2003. He was sentenced in the District Court on 22 July 2004 for an offence of aggravated break and enter and commit serious indictable offence, the aggravation being that he was in company. He received a penalty of three years imprisonment with a non parole period of one year and four months. 6. Mr Evenden called his client and also tendered a very detailed psychological report from Jessica Santos dated 3 July 2009. In addition he called a prison chaplain, named Walter Pospelyj, who has known his client for some years. 7. Ms Santos referred to Mr Pampusa's background which commenced in Mauritius where he was born before migrating to Australia with his mother when he was about five years old. His father died at any early age so far as he was concerned and he was closely involved in his father' death. His mother formed another relationship which was unsuccessful in that it was marked by frequent arguments and was finally dissolved. Mr Pampusa suffered grievously from his father's death, both the fact of the death and being so closely involved when his father died at home. He describes himself as becoming uncontrollable. He was made a ward of the State when he was an early teenager. He was moved all around the State. He commenced using drugs around about the age of seventeen, starting with cannabis, having commenced drinking alcohol when he was fifteen. He began using cocaine and heroin when he as twenty-five. He progressed to intravenous use of those substances when he about twenty-eight. 8. He himself has a sixteen year old son from what is described as an isolated sexual encounter. He has more recently formed a relationship with a woman which is steady and serious and they share a fourteen month old son. He has had occasional employment in various unskilled areas. Significantly, the psychologist noted that Mr Pampusa has never consulted with a mental health professional or engaged in any psychological counselling. She described his adolescence and adulthood as being marked by a "transient antisocial lifestyle" accompanied by numerous admissions into custody. 9. She noted that over the last two years he has come to find some stability as a result of two things. One is the fact that he has become a Christian after his meeting with the chaplain, and the second is the relationship he has formed with Bonni Lee Crawley, the woman with whom he shares the fourteen month old son named Tyrese. He has severed ties with his anti social associates. He has reduced his substance use and has been drug abstinent, including in custody. 10. When Mr Evenden called him, his client, prompted by Mr Evenden's questions, gave evidence of five significant areas in his life where there has been a significant change. One was his acceptance of Christianity. The second was his relationship with his partner whose family has accepted him and in whose family he has had the first experience of normal family life, because he describes himself as institutionalised. The third factor is distancing himself from his previous anti social contacts. The fourth factor was the obtaining of employment before he committed the most recent offences and was arrested for them on 29 December 2008. That employment made him feel different about himself. Related to his employment, or perhaps to his relationship with Bonni Lee's family, is the fact that Bonni Lee's brother in Western Australia died last year which raised significant issues so far as being close to that brother but also reminded him of his experience with his own father's death. The fifth factor about which Mr Evenden led evidence was his client's reduced substance abuse where his client acknowledged that despite unsuccessful attempts in the past at institutionalised rehabilitation he acknowledged that he needs to change himself and make a decision to cease using illegal drugs. He emphasised that he has not used illegal drugs since he has been in custody. He acknowledged the need for - as he said - someone to sit down and talk with him and acknowledged the significance of a course done in custody called "Enough is Enough". 11. In leading evidence about his client's remorse Mr Evenden asked a question which prompted his client to acknowledge that by stealing the items, he had put the occupants of the house in the same position as he was, namely needing funds, a factor which I will return to shortly. His future outlook includes a desire to commence a TAFE course when his classification is improved and perhaps do, on release, a TAFE course in youth work. 12. In cross-examination by Mr Nathan he acknowledged that he had what he described as a raging drug habit and agreed that the crimes which has committed over the years have brought about a lot of hardship to the victims of those offences. 13. There is evidence from Mr Pampusa as well from other witnesses about the financial factor which I have referred to. As I said, tragically Ms Crawley's brother died in about August last year. He died in Western Australia. There was some uncertainty about the cause of the death. It caused a significant degree of anguish and tension within the Crawley family of which of course Mr Pampusa was a part. The tension was also contributed to by a significant debt incurred in flying Mr Crawley's body back to Sydney for the funeral and in the cost of the funeral itself. The debt incurred was some $12,000. Many efforts were made to try to find legitimate sources to contribute to this debt including family and welfare agencies. Not much money was able to be found so the pressure on the family was significant. In the end, after some time - a month or so - Mr Pampusa committed this offence in an effort to find funds to help contribute towards the debt and relieve the pressure on the family. 14. This was confirmed by evidence given by Shannon Crawley, Ms Crawley's brother, who described the difficulty the family was going through at the time that his brother had died and of Mr Pampusa's role in wanting to help. He described his brother-in-law, Mr Pampusa, as an old fashioned sort of man who regards himself as needing to provide for his family, so he did so. He said that Mr Pampusa obviously the witnessed the devastation which the brother's death had brought about in the family. Mr Crawley himself - Mr Shannon Crawley - described his relationship with Mr Pampusa as extremely close. 15. The report provided by Mr Pospelyj was a substantial and insightful commentary on Mr Pampusa. Mr Pospelyj, who has known Mr Pampusa for some six years, observed and commented on three significant events which have contributed to Mr Pampusa's changed outlook on his life. The first was his conversion to Christianity, the second was the birth of his son, Tyrese, and the third was the death of his partner's brother. Mr Pospelyj has observed, on the part of Mr Pampusa, a growing desire to learn and grow in positive ways. In fact he observed that he "rarely finds the qualities in inmates" that he had found in Mr Pampusa. He was confident that Mr Pampusa was genuine in his desire to put his past behind him and look to the future with hope and expectation. 16. When called to give evidence Mr Pospelyj confirmed that the relationship with Ms Crawley has contributed to Mr Pampusa's life, assists him in his growth and helps to stabilise him. As compared with his transient lifestyle before, Ms Crawley's home has provided Mr Pampusa with a base which he has never had before. Mr Pospelyj also commented on the significance of a reunion which occurred between Mr Pampusa and his own birth mother. He commented also on the significance of the loss of Mr Lindsay Crawley, who was the brother who died, and the impact which it had on the whole family, including Mr Pampusa. 17. When asked by Mr Evenden whether he had anything to add, Mr Pospelyj said that he had seen Mr Pampusa for some six years. He acknowledged that the changes in him had been slow and that he had setbacks. He described Mr Pampusa's progress as being a bit like rewiring an old computer to today's pace. He thought that he was making genuine steps to try to change his life and Mr Pospelyj was quite surprised that in fact Mr Pampusa had held out for as long as he had in the circumstances of tension within the family before resorting to crime to assist financially. He described him as cracking as a last resort in the circumstances and as doing really well to last as long as he did. He also noted that he was very well respected by other inmates and staff and worked very well within the prison system. 18. Mr Evenden in his submissions said that the objective seriousness of the crime needs to be seen in the context that it was a run of the mill break and enter crime. There was no suggestion that the house was targeted or of the aggravating features which can accompany these sorts of crimes referred to by the Court of Criminal Appeal. The only one in this case was, which is serious, that Mr Pampusa was on bail for an earlier offence at the time. I can also take into account as an objective feature of the crime that it was motivated by the desire to relieve the significant tension within the family brought about by the debt owing as a result of the death within the family. 19. I find that the offence in this case was in the lower end of the range of objective seriousness. Mr Evenden acknowledged the significance of his client's previous convictions and of the significance of what was said by the High Court in Veen v The Queen (No 2) (1998) 164 CLR 465 at 477-478. He emphasised the important factor being his client's rehabilitation and reminded me of the five matters which he had drawn out in evidence from his client. He emphasised the significant changes which had happened for his client in transforming himself from an offending lifestyle to a lifestyle of stability over the last five or six years. He, too, took up Mr Pospelyj's approach of realistically acknowledging that changes would not happen overnight but there had been some real progress over the time. He reminded me of his client's plea of guilty and of the evidence of remorse which I accept. 20. Mr Nathan reminded me of the criminal record of Mr Pampusa which I do take into account and the fact, which I also take into account, that the offence was committed whilst he was on conditional liberty. 21. I do not take into account as an additional factor under s 21A(2) the fact that it was committed for financial gain because in my opinion that is a factor which is taken into account by Parliament in fixing the penalty for the offence of breaking and entering and stealing. Nor do I regard the emotional trauma attached to this offence as being any greater than for other offences, although it must be acknowledged, as I drew to Mr Pampusa's attention, that the trauma caused to ordinary people in their homes is enormous. Mr Nathan acknowledged that Mr Pampusa had pleaded guilty at the first available opportunity. 22. Mr Nathan took issue with the submission of Mr Evenden that the sentence should commence at the same time that the sentences commenced which Mr Pampusa is presently serving, namely 29 December 2008. He argued that that would be an inappropriate overlap and I accept that submission. The reason for that is that he was sentenced by the Local Court on 3 February 2009 for two offences of breaking and entering and stealing which were committed on other occasions and for both of those offences he received the same sentence, so that there is already a good deal of overlap. The crime for which I am sentencing him was distinct and there should be a degree, at least partially, of accumulation on the previous sentence because of the distinctiveness of this crime. Mr Nathan fairly acknowledged that any accumulation at the earliest should commence from today and I propose to do that when I am sentencing Mr Pampusa shortly. Mr Nathan also emphasised that any non parole period should go beyond the non parole period which Mr Pampusa is presently serving which expires on 28 June 2010. 23. When Mr Pampusa was sentenced in the District Court some years ago he received a sentence of three years imprisonment. Since then he has received from the Local Court sentences of two years imprisonment. He has committed this offence so many times that I would regard an appropriate starting point for a sentence in this case as four years imprisonment. He has pleaded guilty at the earliest available opportunity so it is appropriate to allow him a discount of twenty-five per cent which I allow. 24. Accordingly the sentence which I will fix in due course will be three years imprisonment. I do not regard it as appropriate that I commence the sentence at the same time as the commencement of the sentences he is previously serving for the reasons which I have already given. I accept Mr Evenden's submission that the circumstances of Mr Pampusa's life are such that they warrant an adjustment in the ratio - which is normally seventy-five per cent - between the non parole period and the full sentence imposed in respect of any offence. I propose to adjust it to a proportion which will be roughly two-thirds. I propose to commence the sentence from today and to fix a non parole period of two years. 25. Would you stand up Mr Pampusa. I formally convict you of the offence of breaking and entering and stealing against s 112(1)(a) of the Crimes Act 1900. I set a non parole period of two years to commence today, 24 July 2009, and to expire on 23 July 2011. The balance of the term will be one year to commence on 24 July 2011 and to expire on 23 July 2012. Under s 50 of the Crimes (Sentencing Procedure) Act 1999 I make an order directing your release on parole on 23 July 2011. HIS HONOUR: Now Mr Evenden, Mr Nathan, first the mathematics of whether they're right or not, whether any corrections need to be made and the second issue is whether there are any factual matters or errors in the remarks and the third matter is whether I should impose any conditions on the parole. So first the maths. EVENDEN: I think there's no issue with maths your Honour . HIS HONOUR: Maths, both of you agree? NATHAN: Yes your Honour. HIS HONOUR: Now any errors or factual matters in the remarks on sentence which I should attend to now? NATHAN: Not that I can find your Honour, unless my friend-- EVENDEN: No your Honour. HIS HONOUR: Now what about conditions of parole? Because the sentence is three years, I've directed his release at the end of the parole period and I can fix conditions of parole. So should I make him subject to the Probation and Parole Service or not? What do you both suggest? EVENDEN: I don't wish to be heard your Honour. NATHAN: Your Honour I wish to be heard on that. I think a condition for him to attend the Probation and Parole office, issues of anger management and some direction for - well after what the chaplain has said I think it would be appropriate for him to have some direction on his release. I think it would also benefit the community in the long run. Those are my submissions your Honour. HIS HONOUR: Anything you have to say Mr Evenden? EVENDEN: ..(not transcribable).. say nothing your Honour. HIS HONOUR: I have in mind Mr Evenden, the evidence that he's never had counselling and his interests in sitting down and talking to someone and I think the psychologist has made a similar suggestion, so get some instructions. EVENDEN: Your Honour I don't wish to be heard on that. 26. I set the following conditions of his parole. Upon release he is to be brought to the office of the Probation and Parole Service nearest to where he is living and subject himself to supervision. He is to accept all of their reasonable recommendations and directions, especially with regard to drug rehabilitation and with regard to counselling. HIS HONOUR: Does that cover it? NATHAN: Yes it does your Honour. 27. Now Mr Pampusa you have got three years. It is from today. It could have been backdated which is what Mr Evenden said and I have not done that. I could have commenced it at the end of your current sentence which expires next year but I did not do that. I have come halfway, I have commenced it today. You have a two year non parole period so that your first release date will be 23 July 2007 [?] and I have ordered your release on that day. You are then to go to Probation and Parole and accept their supervision which might include drug rehabilitation recommendations to carry on with your good work which you're already undergoing and also any counselling which may be of assistance to you. You're to accept their recommendation so far as that's concerned. You are making a lot of changes in your life but you, for the reasons which I have given, need to serve additional time for this particular crime which is why I have imposed that sentence. He can be taken down. ********** 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.