District Court New South Wales Medium Neutral Citation: R v Togher [2012] NSWDC 276 Hearing dates: 6 December 2012 Decision date: 06 December 2012 Before: Berman SC DCJ Decision: Sentenced to imprisonment. The overall sentence is one consisting of a non-parole period of 2 years with a head sentence of 4 years. Catchwords: CRIMINAL LAW - Sentence - Form 1 - Aggravated enter with intent - Take and drive conveyance - Dishonestly obtain property by deception - Breach of bond Category: Sentence Parties: The Crown Hamish Patrick Togher Representation: Director of Public Prosecutions Legal Aid Commission File Number(s): 2012/90945 SENTENCE 1HIS HONOUR: Hamish Togher is now twenty-nine, and once again he is in gaol. He has been in gaol so much that really he does not regard it as punishment anymore. In fact I rather get the impression that he finds it sometimes more comfortable living in gaol than he does living in the community. But for a relatively brief period recently he was achieving something with his life and doing things that he was proud of. Sometime in the future, and I hope it is soon, Mr Togher is going to realise the futility of living his life in gaol and yearn for a life outside gaol, a life where he can once again achieve things and be proud of them. 2His criminal offending began when he was living on the streets in these circumstances: His parents separated when he was quite young. He lived with his father who brought him up and things were going well until his father remarried. This occurred when the offender was fourteen. He explained that he was becoming a teenager, going through puberty at a time when a new person began competing for his father's affection. In those circumstances he just did not get on with his stepmother and left home and began to live on the streets. Since then he has spent a great deal of time in custody and in fact in the last eleven years, since he turned eighteen, the longest time he has been out of gaol is fourteen months. 3When he was last in gaol things were progressing reasonably well. He was on work release, an opportunity that allows prisoners to become rehabilitated. Work release being the subject of some criticism by, what I will describe, the law and order brigade. They seem to think that the best thing that can happen is that a prisoner spends the entirety of their custodial sentence in prison, deprived of amenities and deprived of the ability to see what life is like outside gaol. Prisoners in that position are usually released and the shock of having to deal with life outside gaol, completely unprepared for it, often leads to the offender committing further offences in short order and going back to gaol. The law and order brigade would say well that is where the person belongs. What they fail to take account of is that such policies lead to more offending and thus more victims of crime. 4The fact that the offender has committed a further offence for which he must now be sentenced is not due to any failure of the work release programme. Things were going well, and he was working well. He then went to TAFE and eventually ended up living with his mother in Beechworth in Victoria where he worked as a chef at a pub, doing what he described as up market pub food. He has had an addiction to drugs for many years and the potential for relapse was always there. He came to Sydney intending to go to a music festival but it was not very long before he was back to his old ways, meeting his old friends and using drugs as he had been. He never actually got to go to the music festival. Instead he began once again living on the streets and using drugs of various amounts, spending everything he could get on heroin. It was in these circumstances that he committed this most serious offence that I have to sentence him for. 5One night he left the Woolloomooloo area where he was living under a bridge and walked to the Eastern Suburbs. He found a home where a laundry window had been left unlocked. Inside was a woman. She was apparently alone, her husband being away on business. It is very fortunate that she did not awake during what I am about to describe. But nevertheless, even though she slept through everything that occurred when Mr Togher was inside the house, I have got no doubt at all that she has been significantly harmed by the offence that he committed. She was asleep when the offender crawled into the home through the open laundry window. He then went through the house and went into a number of bedrooms, fortunately all of them unoccupied. He stole what he could, a laptop computer, an iPad and the victim's handbag. Inside that handbag were a number of items which Mr Togher then used to commit further offences. 6There were two cars parked in the garage, the offender drove both of them away. How he managed to get both of those away as well as a road bicycle is difficult to understand but he managed. One of the offences of taking and driving a conveyance is a matter for which the offender must be specifically sentenced and the other appears on a Form 1. Then using property that was in the victim's handbag he went to a shopping centre and made some purchases with the ANZ visa card that was contained in the victim's handbag. That is an offence of dishonestly obtaining property by deception of which the offender must also be separately sentenced. 7At the time he committed these offences he was subject to a s 9 bond and a condition of that bond was that he not go within one kilometre of Kings Cross railway station. He was seen in that area in clear violation of the place restriction order. Police then approached the offender and told him that they thought he had committed the aggravated enter with intent to commit a serious indictable offence and they arrested him. Whilst he was under arrest he began to struggle, requiring the officers to handcuff him. When they did he finally managed to calm down. He explained to police that he had to give it a go and also told them that they had not found car keys that he had hidden in his underpants. Police subsequently found the two motor vehicles that the offender had driven out of the home in separate car parks and inside those vehicles a great deal of material was found which implicated the offender. 8The offender is a person who committed these offences because of his addiction to drugs. He gave evidence before me and , if I can say so without being condescending, he appeared to be quite a clever person who was well aware of the position that he now finds himself in. He seems able to analyse with a clear head how it is that he has ended up where he is and the effect of custody upon him. As I began these remarks on sentence gaol really does not hold any great fears for him and he finds it comfortable. There will be a time when he understands that he has got one life to live and living it the way he has been is a waste of time, a waste of the one life that he has. 9The circumstance of aggravation of this offence is that the offender knew there were people inside. That is one of the more serious forms of aggravation of the offence. On the other hand the serious indictable offence he committed was stealing, one of the less serious forms of indictable offence that are covered by the section. 10He has previously been on the compulsory drug treatment programme but even whilst on that programme in custody he found it difficult to put his drug use completely behind him and was detected with dirty urine whilst in gaol. This time however he is now at Bathurst and on the methadone programme. He does hope in the future to undergo some residential rehabilitation which will assist him put his drug using ways behind him for good. He has been able to achieve a lot in the brief period that he has been released from custody in the past. So whilst I cannot say the offender's prospects of rehabilitation are good there is a great deal of hope for the future as far as Mr Togher is concerned. Nevertheless there must be a significant period of imprisonment imposed upon him in order to reflect the significance of the offences he has committed, in particular the aggravated enter with intent to commit serious indictable offence which carries a maximum penalty of fourteen years and which is a matter of great concern to the community as well as the individual victims of offences of that type. 11I will make a finding of special circumstances in the offender's favour, they relate of course to the need for there to be some accumulation of the sentences but primarily they relate to the circumstance that if the offender is given an extended period of supervision upon parole there is much more of a chance that he will be able to give up his offending ways, which will have the effect that the community benefits. If he commits no further offences there will be no further victims and the community and its members are thus much better off. 12I will impose sentences as follows. For the offence of dishonestly obtaining money by deception I impose a fixed term of imprisonment of twelve months, to date from 21 March 2012, the day on which the offender went into custody. For the offence of take and drive conveyance without consent, of course not the one on the Form 1, the offender is sentenced to a fixed term of imprisonment of twelve months, to date from 21 June 2012. And then taking into account the matters on the Form 1 for the offence of aggravated enter with intent to commit a serious indictable offence the offender is sentenced to a non-parole period of eighteen months, to date from 21 September 2012 and a head sentence of three and a half years. The non-parole period will thus expire on 20 March 2014 on which day the offender is eligible to be released to parole. The overall sentence one of imprisonment, consisting of a non-parole period of two years with a head sentence of four years. ********** 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: 04 April 2013