Mirzaiyun v R [2015] NSWDC 124

District Court New South Wales

Medium Neutral Citation: Mirzaiyun v R [2015] NSWDC 124 Hearing dates: 10 March 2015 Date of orders: 10 March 2015 Decision date: 10 March 2015 Jurisdiction: Criminal Before: Neilson DCJ Decision: Sentences passed by Local Court set aside Section 9 good behaviour bond imposed Catchwords: APPEAL – Severity appeal – Larceny Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Category: Principal judgment Parties: Irvin Mirzaiyun (Appellant) Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2014/369750 Publication restriction: No Decision under appeal Court or tribunal: Waverly Local Court Jurisdiction: Criminal Date of Decision: 21 January 2015 Before: Farnan LCM File Number(s): 2014/369750

Judgment 1. HIS HONOUR: This is an appeal against the severity of sentences passed by Magistrate Farnan in the Local Court at Waverley on 21 January 2015. The appellant committed four offences. 2. The first offence was larceny from the Woolworths supermarket at the Westfield shopping centre at 500 Oxford Street, Bondi Junction. The appellant stole two packets of beef mince and a whole beef fillet and a bag of chillies, some garlic cloves, a bag of lemons and 12 cans of peeled tomatoes. The total value of those items was $100.95. The appellant left the Woolworths supermarket without making any attempt to pay for those items. 3. As a result of his failing to make any attempt to pay for the items, the store's loss prevention officer called the police who attended the Woolworths supermarket, identified themselves to the appellant and conducted a search of him. During the search the police found a white David Jones brand plastic bag in the trolley. Inside the plastic bag were a brown pair of boots valued at $54.95 and a white singlet top valued at $19.95. Those items appear to have been taken from the Pavement store on the fifth level of the Westfield Bondi Junction shopping centre. 4. Also inside the David Jones plastic bag was a Quicksilver black and white wetsuit valued at $130. That appears to have been taken from the David Jones store on the same day. The police also found another shopping bag containing a man's T-shirt valued at $59.98. The source of that T shirt was the Kathmandu store located on Oxford Street, Bondi Junction. The total value of the goods stolen and goods in custody was $365.83. 5. In respect of each charge the learned magistrate imposed a custodial sentence of one month's imprisonment, and suspended the sentences pursuant to s 12. Each sentence was concurrent. One can understand why the magistrate imposed a custodial sentence. 6. The appellant does not have a good criminal record, as far as such offences are concerned. He stole from a retail store on 21 January 1991 for which he was fined. He again stole on 28 May 1991 for which a recognisance under s 558 of the Crimes Act 1900 was imposed for a period of 18 months. That recognisance was imposed on 19 June 1991 but it was breached. The appellant stole again on 4 September 1992, for that offence he was fined. However, he was not called for the breach of the recognisance under s 558. The appellant next stole on 22 October 1995. On that occasion he was placed under a second recognisance under s 558 of the Crimes Act 1900 for a period of two years. 7. The appellant then committed no offence until 13 May 2009. On that occasion he was found guilty of shoplifting and a s 9 bond was imposed for a period of nine months. The appellant observed the terms of that bond. The appellant next committed larceny on 14 April 2011. For that offence he appeared before the Local Court at Waverley on 12 May 2011 and was placed on a further s 9 bond for a period of 18 months. 8. It appears to me that the learned magistrate was concerned about the fact that the series of bonds had failed to dissuade the appellant from stealing. However, why he did so is understandable in human terms. The appellant is in receipt of a carer's pension. He cares for his wife who has an invalid pension. The appellant and his wife have a 12 year old daughter who is enrolled at a public high school at Rose Bay. The appellant currently lives in Vaucluse and has lived in the Eastern Suburbs since he came to Australia. It would appear that the family income is approximately $1,000 per week from the Federal government but the appellant pays $585 a week in rent. The rent clearly is a major impost on the family income and one can understand that the appellant and his family may find it very difficult to provide food and clothing for themselves. 9. However, the fact remains that imprisonment is a penalty which is to be avoided at all costs. Section 5(1) of the Crimes (Sentencing Procedure) Act 1999 provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. That provision applies whether the imprisonment is to be suspended or not. 10. In this day and age, sentencing somebody to imprisonment for the theft of items worth $365.83 might be seen to be draconian. Especially is that so when all the items that were found by the police on the appellant were returned to their lawful owners. Unfortunately, the appellant, because of his being the full-time carer for his wife, is unsuitable for a community service order and the pre-sentence report indicates that the appellant is unsuitable for intervention by Community Corrections as he has not presented with "any untreated issues that would benefit from the support or guidance" of that service. 11. I note that the appellant failed to comply with one recognisance under s 558 of the Crimes Act 1900, but that was some 22 years ago. He has complied with all subsequent recognisances and bonds. I have come to the view that this is not a case that warrants a custodial sentence. I believe that the community and the appellant are best served by his being placed on a further s 9 bond for a period of two years and I trust that more affordable public housing might be provided to the appellant and his family. 12. For those reasons, I set aside the sentences passed by Magistrate Farnan sitting in the Local Court at Waverley on 21 January 2015. 13. Irvin Mirzaiyun, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999, I order that you enter into a good behaviour bond for a period of two years from today. Conditions applying during the term of the bond are as follows: (1) you are to appear before the Court if called upon to do so at any time; (2) you are to be of good behaviour; (3) you are to reside at 17/81 New South Head Road, Vaucluse, NSW, 2030; or (4) you are to advise the Registrar of this Court by pre-paid registered post any change of residential address during the term of the bond. That sentence is in respect of each offence.