District Court New South Wales Medium Neutral Citation: R v BRADY [2011] NSWDC 235 Hearing dates: 11 & 25 November 2011 Decision date: 25 November 2011 Before: Berman SC DCJ Decision: Sentenced to an effective term of imprisonment consisting of a non-parole period of 3 years and period of eligibility for parole of 2 years. Catchwords: CRIMINAL LAW - Sentence - Form 1 - Aggravated break enter and commit serious indictable offence - Stealing - In company Category: Sentence Parties: The Crown Matthew Thomas Brady Representation: Mr M Ainsworth - for the offender Director of Public Prosecutions File Number(s): 2010/152376 SENTENCE 1HIS HONOUR: At a human level the story of Matthew Thomas Brady that I am about to relate is a story of immense sadness. The manner in which he has ended up before me today facing sentences for five very serious offences is one which is impossible to describe without feeling a great deal of emotion. As a human being it is terribly sad to send this young man to gaol but as a judge it is my duty to do so. 2The offender is the second eldest in a family of five siblings. He went to Jannali High School until he was seventeen, completing Year 11. But when he was eighteen an unimaginable tragedy occurred. His father committed suicide by shooting himself whilst at home. His sister, the offender's aunt, Joanne Brady and his children rushed into the room where the father had taken his own life. He was transported to hospital with the offender remaining by his side for hours after he had been pronounced dead. 3That was bad enough, but soon after that the offender's mother deserted the family. Mr Brady and his younger siblings had nowhere to go. They were taken in at great financial and emotional cost by his aunt, his late father's sister. She, a single mother with one child at home and one child living away from home, took in Mr Brady and his three younger siblings. Space was tight and emotions were raw. Ms Brady had a full time job and the need for her to keep working to support her suddenly enlarged family was obvious. 4Living next door to her was a man named Billy Illievski. He had recently been released from gaol and, not surprisingly, Ms Brady had her concerns about him. These concerns increased when her nephew began spending time with Mr Illievski. She remonstrated with Mr Illievski demanding that he stop associating with Mr Brady but she was ignored. At this time Mr Brady, who had lost both his parents in different circumstances, was vulnerable in the extreme. His aunt described extremely disturbing behaviour which manifested itself while the offender was asleep. He was unemployed, isolated from friends, drinking to excess and experiencing ongoing grief. 5It was in these circumstances that he was recruited by Mr Illievski to join an extremely serious criminal enterprise involving Illievski and two others from the Macedonian community, Velko Kostovski and Blagoya Nikolovski. The three of them had developed a highly organised and planned procedure for committing large scale thefts from retail premises after breaking into them. 6The offender now stands to be sentenced for five offences of aggravated break enter and commit serious indictable offence namely stealing, the circumstance of aggravation being that on each occasion he was in company with others. When I sentence him for one of those matters he asked that I take into account a further five broadly similar offences. 7The first of the offences involving the offender occurred on 26 July 2009. On that occasion the offender and Illievski went to the South Strathfield Officeworks store. They cut their way through a fence to get to the rear fire exit door where Illievski cut a large circular hole with a cordless drill. He was thus able to put his hand through the hole and open the door. The offender and Illievski then removed twenty-three laptops with a total retail value of more than $23,000. 8The next offence appears on the Form 1. On that occasion the offender was in company with Kostovski when they went to a different Officeworks store, broke in and again stole numerous laptop computers. 9The next offence is count 2 on the indictment. It was committed on 2 December 2009 when the offender, Illievski and Kostovski went to the Domayne complex in Parramatta Road, Auburn. Kostovski cut through the barbed wire fence of the rear of the complex. Illievski then drilled holes in an external fire door and used a cordless sabre saw to cut between the four points he had drilled. This created a hole large enough to put his hand through and open the door from the inside. The three offenders then went inside and stole iPods, iPhones, laptop computers and portable GPS systems. The total value of the property taken on this occasion was in the order of $48,000. 10The next offence is on the Form 1. On 19 January 2010 the offender, Kostovski and Illievski broke and entered the Orange Grove Officeworks store with intent to commit a serious indictable offence. The next day the three of them went to a shop in O'Riordan Street, Alexandria, broke in and stole numerous electric drills, drill bits and a sum of cash. That offence also appears on the Form 1. 11A few days later they committed the third offence to appear on the indictment. It was on 31 January when all four offenders, that is this offender, Illievski, Kostovski and Nikolovski, together with a fifth person, went to the Domayne/Harvey Norman complex in O'Riordan Street, Alexandria. Illievski and Kostovski cut through the barbed wire fence. Illievski cut a hole through the wooden door at the rear allowing him to put his hand through and open the door, then Illievski and Kostovski used a crowbar to open an internal fire door allowing entry into the store. 12Once inside each of the offenders ran to predetermined sections inside the store and stole property that they had been allocated to steal. External CCTV footage reveal that one of the motor vehicles used to transport the offenders and the loot was registered to this offender. No doubt because there were five people involved, the total retail value of the property taken on this occasion was larger than any of the other offences involving this offender. In total the offenders managed to take property with a retail value of $54,680. It is this offence that has the Form 1 matters attached to it. 13The next offence is count 4 on the indictment. On 7 March 2010 the offender, Nikolovski and Kostovski went to The Good Guys store in Banksia. Some time around 10pm that night Kostovski cut a hole in an external fire door using a cordless drill and a sabre saw. Once inside the offenders targeted those sections in the store that contained the iPods, mobile phones and GPS systems. As they did on other occasions they had to smash a number of glass display cabinets to get to the property they were after. What was stolen was then taken to the offender's house. The retail value of the property taken on this occasion totalled $25,000. 14The next matter is the final offence appearing on the indictment, an offence committed on 10 March 2010. This time the target of this offender, Nikolovski and Kostovski was Uniden Australia in Banksia. The offenders cut a hole in a perimeter fence security fence and then used a crowbar to break the locking mechanism on a rear entry door. Inside the premises, which was a warehouse, was a locked security cage. The offenders broke into that cage and then stole a number of GPS navigation systems, cordless phones and two-way radios. The total amount of that property was almost $55,000. 15However a garbage collector disturbed the offenders so they all ran away. The came back to move the offender's motor vehicle with the stolen property inside it. Police stopped the vehicle with the offender and Nikolovski in it and saw incriminating items. The offenders then drove to Nikolovski's premises where the stolen property was stored. 16The final two offences appear on the Form 1. On 30 March the offenders attempted to break and enter into the Domayne store on Parramatta Road but were foiled before they could succeed. The following night this offender and Illievski broke and entered the Domayne store in O'Riordan Street, Alexandria intending to steal from those premises but were stopped by police before they could do so. The offender was arrested with items relevant to these offences being found in his car. In an interview with police he denied committing any of these offences. He was later charged and spent eight days in custody before being granted bail. 17As is obvious the offences I have just described reveal criminality at a significant level. There was a high degree of planning and organisation that went into each of these offences which caused substantial loss. Each of the offences on the indictment carries a maximum penalty of twenty years and a standard non parole period of five years. I have taken both of those guideposts into account. My reasons for not imposing the standard non parole period for any of these offences appear in these remarks on sentence. 18It is often said in these courts that an offender has been led astray after getting mixed up with the wrong crowd. Although it is often said, it is rarely so clearly the case as in this matter. The offender, who had shown no antisocial tendencies, was befriended by a much older man at a time that he was extremely vulnerable. He was thereby introduced to other older criminals. The three of them were all significant criminals, each of whom had served time in prison for various offences. 19Before 26 July 2009 no-one had any concerns about the offender's behaviour. But things changed when in tragic circumstances well beyond his control he found himself living next to Billy Illievski. Since being released on bail he has turned out to be quite a different young man to the person he was when he was committing these offences. He no longer drinks to excess and he found work as a truck driver for a demolition company working nine to ten hours each day, six days a week. 20The offender was described by his employer as an asset to the company who had never missed a day's work and was always on time. He has been receiving counselling which is of substantial benefit to him. There is therefore much to be said for the proposition that these offences were out of the offender's usual character. Perhaps the one qualification for that was the period over which these offences occurred, eight months, and the number of offences committed. Nevertheless I am prepared to make a finding in the offender's favour that he is now a very different person to the person he as when he committed this serious series of offences. 21It is suggested in the pre-sentence report as well as the two psychological reports tendered on the offender's behalf that he is remorseful and has accepted responsibility for his actions. The offender did not give evidence before me so I was unable to judge for myself the validity of those statements. I note also that the offender's plea of guilty came late indeed which suggested if the offender is truly remorseful that feeling has only come upon him recently. However once more I am prepared to make a finding in the offender's favour based on the opinions of the two psychologists who have seen the offender and heard what he has to say about his wrongdoing. 22Notwithstanding the lateness of the offender's plea it still had a utilitarian value and so I will impose upon him a sentence which is about ten per cent less than it would otherwise have been. 23I am also prepared to find that the offender has good prospects of rehabilitation and in a real sense has been rehabilitated already. He has never had a problem with drugs or gambling and has put his time of excessive drinking behind him. It is unfortunate in the extreme that his prospects of rehabilitation will be adversely affected by the sentence I must necessarily impose upon him. 24On his release from custody he will find it much harder to get a job because of his criminal history and will have spent a significant period of time mixing in gaol with hardened criminals, being exposed to their morals or lack of them and their way of life. 25Kostovski and Nikolovski were sentenced by me in December last year. Issues of parity loom large. The offender should not have a sense of grievance when he compares the sentence I impose upon him with the sentences that I earlier imposed upon two of his three co-offenders. 26I note that Illievski has pleaded not guilty and is facing trial early next year. At that trial evidence will be given against him by Kostovski and Nikolovski. Because of the assistance that they have given and have promised to give the authorities, in particular by giving evidence for the prosecution against this offender and Illievski, I discounted the sentence I would otherwise have imposed upon them by fifty per cent. That is of course a significant matter to be borne in mind when a comparison is made between the sentences I will impose upon this offender with the sentences I imposed upon the co-offenders last year. 27This offender of course is not to be punished for deciding that he would not give evidence against Illievski. It remains the case however that he does not get the substantial discount that would be available to him had he offered to give evidence and assist the authorities in that way. 28Other factors affecting parity include that this offender was very much the junior partner in the criminal enterprise. As I have mentioned his co-offenders were older, much more deeply involved and the prime movers in the criminal enterprise. They both had serious and numerous offences on their criminal history. 29Mr Ainsworth who appeared for the offender suggested, albeit somewhat tentatively, that a sentence which would not see his client return to full time custody could be imposed. Mr Ainsworth suggested a suspended sentence. I need not consider that matter further because the length of the sentences I decided to impose is such that no alternative to full time custody is possible. 30Notwithstanding the absolutely awful experience the offender suffered at the age of eighteen which was exacerbated by the behaviour of his mother it is a fundamental rule in sentencing that a sentence needs to reflect the objective gravity of an offender's conduct. Here, where there are a numerous series of offences involving a total loss of property in offences involving this offender approaching a quarter of a million dollars there is unfortunately no alternative but that the offender serve a significant period in gaol. 31It is terribly sad at the way both his parents have treated him with serious and lasting consequences, but as I began these remarks on sentence it is necessary for me to perform the role of a judge and take into account matters other than the personal situation of the offender. The principles of general deterrence for example while perhaps having less relevance because of the offender's youth and the circumstances in which he was drawn into the series of offences nevertheless require the imposition of a sentence which will have some effect in deterring others who may be tempted to also get themselves involved in serious criminal conduct of this kind. 32There are special circumstances in this case. As I mentioned the offender's prospects of rehabilitation will be diminished by him having to serve a period of full time custody and the ongoing psychological consequences for him of both his parents' actions have suggested a need for a significant variation from the statutory ratio between the non parole period and head sentence. 33For counts 1 and 2 the offender is sentenced to imprisonment. I set a non parole period of one year four months and a head sentence of two years eight months to date from 3 November 2011. 34For counts 4 and 5 the offender is sentenced to imprisonment. I set a non parole period of one year four months and a head sentence of two years eight months to date from 3 May 2012. 35For count 3 taking into account the matters on the Form 1 the offender is sentenced to imprisonment. I set a non-parole period of two years and a head sentence of four years to date from 3 November 2012. 36Thus the effective sentence consists of a non parole period of three years with a period of eligibility for parole of two years. The offender's non-parole period will expire on 2 November 2014 on which date he is eligible to be released to parole. ********** 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: 01 August 2012