R v Williams [2016] NSWDC 179

District Court New South Wales

Medium Neutral Citation: R v Williams [2016] NSWDC 179 Hearing dates: 24 March 2016 Date of orders: 24 March 2016 Decision date: 24 March 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is sentenced to imprisonment consisting of a non-parole period of 2½ years and head sentence of 4 years Catchwords: CRIMINAL LAW – Sentence - Break enter and steal Cases Cited: R v Ponfield (1999) 48 NSWLR 327 Category: Sentence Parties: The Crown Duane Anthony WILLIAMS File Number(s): 2015/213448

SENTENCE 1. HIS HONOUR: The offence I am about to describe is distressingly commonplace. Offences of this type are not often dealt with in the District Court and indeed this offence could have been dealt with in the Local Court, although it would have been quite wrong to do so given the jurisdictional limit that applies when a magistrate is sentencing. 2. Too often offenders are prepared to break into people's houses and take whatever they can in an effort to fund drug use or to meet living expenses. Rarely do offenders spend the proceeds of such crimes on luxuries. But most offenders think nothing of the consequences to a householder having his or her home broken into and items, often of sentimental value, taken from it. The fact that an offence is commonplace does not mean that it is not serious. 3. It is notorious that those whose homes have been broken into are detrimentally affected by the experience, they become less sure of themselves, less confident and often increased security features are installed. There is no evidence that any particular harm was occasioned in the present case or that any changes to security came about. What I am talking about is offences of break, enter and steal generally. That is the offence that the offender has committed now on ten occasions over the course of a lengthy criminal history. This offence was committed after a 16-year-old resident of a home in Killara left her home after her mother had left earlier. In contrast to the offender, the 16‑year‑old girl was heading off to work. She locked all the windows and doors except for the window directly adjacent to the front door. At some time whilst she was absent from the home the offender has arrived and used an unspecified object to jemmy open the top pane of that window. He then entered the house, in the process cutting himself leaving behind a blood stain which would ultimately lead to his detection. 4. Once inside he entered the master bedroom and removed a number of things, a quantity of jewellery which consisted of a silver necklace and costume jewellery, a silver and gold bracelet, a number of silver and gold rings with gemstones as well other property a camcorder, a camera and a wallet which contained a credit card. The total value of the property stolen was $5,150. This is not a terribly significant amount, but in my view it is quite wrong to focus too much on the monetary value of items taken. It would not be surprising at all to learn some of the items taken and not recovered were of sentimental value, jewellery often is. Certainly the offender did not know and clearly he did not care. 5. After taking that property he left the home and it was later that day when the young girl returned home from work that she discovered what had happened. 6. The offender pleaded guilty at the earliest opportunity and so the sentence I impose upon him will be 25% less than it would otherwise have been. 7. The offender was arrested on 21 July 2015 some months after committing this heist. Mr Dick who appears for the offender today helpfully went through the guideline judgment of R v Ponfield (1999) 48 NSWLR 327 which sets out a number of factors which judges should consider in assessing the objective gravity of an offence. There was, in this case, some planning but nothing to suggest that the planning was out of the ordinary. Very few break, enter and steal offences do not involve some level of planning. There was no-one home, there was no gratuitous vandalism, the offence occurred in daylight hours and there is no evidence of unexpected trauma suffered by the residents. 8. Mr Dick accurately submitted that the monetary value of the property taken was relatively low but I have already commented on the likely other value that the property had to its rightful owners. 9. The offender's background is made known to me in an affidavit which he swore and to which the Crown had no objection. The offender's father was a person who, it has to be said, was not the best influence upon his children after being forced to give up a promising rugby league career because of injury. He would spend most of his time drinking and his sources of income included prize fighting or pool playing. Mr Williams reports that his father would often come home drunk, beat his mother up and vandalise their home. Significantly when Mr Williams was but 12 years of age he walked into his parent's bedroom to find his father there with another man in possession of duffel bags full of cash, balaclavas and hand guns. They had apparently just robbed a bank. 10. Thus Mr Williams was exposed to both violence and criminality from a very early age. His mother on the other hand has been supportive of him and remarkably she still is supportive of him despite the trouble he must have caused her over his lengthy career. She is in court today which demonstrates in a concrete way support for her son. Given the trouble he must have caused his mother, Mr Williams probably recognises that he owes her quite a bit. In his affidavit he says that upon release from custody he plans to live with his mother and support her. Hopefully he will do what he says he will do, and hopefully he will look after her as she grows older and eventually reaches the stage where she will need the support of her children, including of course the offender. 11. The offender's problems with crime began as they often do in the context of problems with drugs. His experience in early high school was such that he would associate with other drug using students and each day they would go to the park to drink, smoke cannabis and play football. His drug use escalated to rohypnol, valium and serepax, speed when he was 14. 12. The offender has spent a great deal of his life in custody, he went to his father's funeral in handcuffs because he was in prison at the time. He went to a brother's funeral, he having died of an accidental heroin overdose, also in handcuffs because once again he was in prison at the time. He is a man who has a very significant criminal history. As well as the nine earlier convictions for break and enter, he has three convictions for armed robbery and four convictions for firearms offences. This is clearly a case where the offender's continuing attitude of disobedience to the law means that a sentence with a significant component of personal deterrence needs to be imposed. 13. Notwithstanding the Crown's objection I will make a finding of special circumstances in this case. The Crown's point was a good one. Those who have abused leniency shown to them in the past by committing offences whilst on parole can scarcely claim any entitlement to a reduction of their non‑parole period. However, when a wider view is taken of the purposes of sentencing which after all are primarily to protect the community I consider it appropriate to make a finding of special circumstances in the offender's favour. 14. He is now 50 years of age. He must be getting too old for this. He will benefit from an extended period of supervision on parole as he attempts to reintegrate into the community after what must clearly be a significant risk that he is already institutionalised. 15. The offender has been in custody since 21 July 2015 so the sentence I will now announce is to commence from that date. I set a non-parole period of two and a half years. It will expire on 20 January 2018. I set a head sentence of four years. Mr Williams is referred to the Drug Court.