District Court New South Wales Medium Neutral Citation: R v Marks [2017] NSWDC 23 Hearing dates: 9 February 2017 Date of orders: 09 February 2017 Decision date: 09 February 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: For the breach of the s 9 bond, I impose a sentence under s 10A of the Crimes (Sentencing Procedure) Act. For each the offences which earlier resulted in s 12 bonds, I revoke the order for suspension, impose a sentence of imprisonment of 15 months For the fresh offences, sentenced to an aggregate term of imprisonment consisting of a non-parole period of 4 years and a head sentence of 6 years.. The offender is referred to the Drug Court Back up offences on s166 certificate are dismissed Catchwords: CRIMINAL LAW – Sentence – Form 1 – Breach of bonds – Break enter and steal – Goods in custody – Institutionalised offender Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Peter John Marks Representation: Solicitors: Director of Public Prosecutions – The Crown Legal Aid Commission – The offender File Number(s): 2016/243623 Judgment 1. HIS HONOUR: The purposes of sending people to gaol when they have committed criminal offences are varied. In almost all cases general deterrence is important. Those who might be tempted to offend in the same way an offender has are hopefully deterred from doing so by the prospect of severe punishment. 2. Personal deterrence is often important too. A particular offender who is contemplating offending should know that if he or she is detected again they will pay the price through harsh punishment. 3. And sometimes, and this case is a good example, society simply needs a rest from regular offending. The mere fact of incarcerating someone means that they cannot commit offences of break, enter and steal. 4. All three purposes of punishment I have identified apply in the present case. 5. I should make it clear, of course, no offender should be sent to gaol for longer than is justified by the objective gravity of their offending conduct. So the fact that a person who is incarcerated cannot commit further offences of break, enter and steal does not allow a court to impose a longer sentence than would otherwise be the case. 6. Peter John Marks is a regular offender. He is 42 years of age and has spent a great part of his life in custody, often for offences of break, enter and steal. Indeed the Crown calculates, without challenge from Ms Fraser who appears for Mr Marks today, that he has 29 earlier offences of break, enter and steal on his criminal history. 7. He has regularly been sentenced to imprisonment for such offences and has displayed clearly a continuing attitude of disobedience to the law. 8. The offender is now appearing for sentence on a number of offences which I will speak about at this state 9. He is first to be sentence for an offence of break, enter and steal committed on 4 July 2016. When I sentence him for that offence he asks that I take into account on a form 1, another offence of break, enter and steal, as well as a goods in custody. 10. I will also impose sentence for an offence of break, enter and steal committed on 3 August 2016. 11. Those offences were committed when the offender was on three bonds, namely two suspended sentences of imprisonment and a s 9 bond. The parties ask that I deal with those breaches of bond. The s 12 bonds were imposed for two other offences of break, enter and steal committed on the same premises only five days apart. The s 9 bond was imposed for an offence of peep and pry. 12. Let me go through the facts of each of those offences, starting firstly with the offence of 4 July 2016. 13. On that day the offender broke into the Lake Macquarie Medical Centre. He clearly planned to do so because he was equipped with a long flat-headed screwdriver and was wearing gloves. He forced his way through the door causing an extensive amount of damage to those doors. Once inside he forced open locked filing cabinets causing them to be damaged in such a way they had to be replaced. Eventually he stole a safe which was fixed into a cupboard in the staff room. That cupboard was, again, damaged as a result of his conduct. The safe contained about $1,000 in cash and numerous business documents. 14. Mr Marks, using his knowledge gained from his earlier offences of break, enter and steal, was able to avoid setting off the alarm. 15. As I mentioned attached to that offence is an offence on a form 1 committed on 3 August 2016. On that day the offender broke into a dry cleaning business, again situated in Belmont. Inside he stole about $50 in notes and coins and a mobile phone. 16. Also on 3 August he broke into a hairdressers. He managed to do this by breaking the lower portion of a glass door. Once inside he stole a cash register containing an amount of money, an EFTPOS terminal, a cordless phone, a number of GHD hair straighteners. The total value of the things taken was more than $7,000. 17. He was arrested the following day. The police went to his mother's home where he had been living. They were shown some clothing which matched clothing seen on some CCTV footage. As he was being searched police located two mobile phones and an amount of women's gold custom jewellery. That is the basis of the goods in custody offence on a form 1. 18. The two offences of break, enter and steal which result in s 12 bonds were, as I mentioned earlier, committed on the same premises. 19. The offender broke into premises known as Deck 56 on 15 September. He located a safe within the locker. He managed to get it outside and took it away, as well as a number of other items that were stolen. The safe contained $3,714. That safe was replaced. It was the offender's knowledge that that would have been done which presumably prompted him to return to the same premises five days later. Again he broke in. CCTV footage shows him trying to find a safe but he is unable to do so. Nevertheless he still managed to steal a significant number of items, computer equipment and alcohol. 20. Finally we come to the offence of peek and pry, a somewhat bizarre offence committed when the offender took an interest in a young woman at the Belmont Library. 21. The young woman had noticed what the offender was doing and became uncomfortable. She waited for him to leave the library before she used the ladies' toilets. The offender entered the ladies' toilet while the young lady was inside. He looked through a gap in the door between the door and the hinges directly at the young lady when she was in the toilet cubicle. When she challenged him he left. 22. The offender has had a good upbringing. His parents and brother model good behaviour. His parents support him even today. He was living with his parents when he committed the offences for which I must sentence him today. 23. What was described as a pivotal point in his upbringing, however, led to him being exposed to undesirable influences for some time. It was during that period that he became addicted to drugs, an addiction that has continued for many, many years. He is now 42 years of age and has spent a significant part of his life in custody, such that he is assessed as being institutionalised. 24. It is a terribly sad thing to see a person waste his life, as the offender has been doing. He acknowledges that he is missing out on things, in particular his family life. He has a son who lives with his parents and their contact is, of course, limited because of the offender's repeated wrongdoing and the resulting sentences which are imposed. 25. These offences are serious, not only because of what the offender did, because of their repeated nature. True it is that the offender has been breaking into non-residential premises. It almost goes without saying that it is much more serious to break into someone's home than to someone's business. But that does not mean that breaking into someone's business is not a serious offence, it clearly is. 26. The offender also seems to have some troubles accepting that he is responsible for the harm he has caused to such people. He says he is remorseful but excuses his behaviour because of his problems with drugs. It is his decision whether or not he uses drugs and no-one else's. The responsibility for the offender using drugs and the responsibility for the offender deciding to fund his drug use through illegal activity is the offender's alone. 27. The prospects of Mr Marks' rehabilitation are clearly related to his prospects of overcoming his addiction to drugs. He has made attempts in the past to do so and after his most recent release from custody was able to avoid using drugs for some months. But, of course, when drugs were offered to him he did not think about anything other than the apparent benefits that use of those drugs would bring him. He did not think about how he would fund his next use of drugs. He did not think about what would happen when his illegal activity was discovered. At the time he used drugs he was focused simply on that activity using drugs. 28. The sentence I am about to impose upon him is a lengthy one. Should Mr Marks find on his release from custody that he is offered drugs again, I trust that the length of the sentence that I am about to impose will give him pause - will cause him to think about what he is doing because if he uses drugs it is almost certain that he will commit offences and if he does there can be only one outcome, even longer periods of imprisonment being imposed, until one day Mr Marks will wake up and he too will realise that he has wasted his life. 29. There was attention focused on the compulsory drug treatment program during the course of submissions. It would, of course, be wrong for me to fashion a sentence with an eye to whether that sentence does or does not allow Mr Marks to be referred to that program. I have not done so. But upon working out how long these sentences should be for the various matters I do find that Mr Marks is eligible to be referred. I repeat, that is not because I fashioned a sentence in a way that makes him eligible, it is a coincidental outcome. 30. The sentences I impose are as follows; 31. For the breach of the s 9 bond, I impose a sentence under s 10A of the Crimes (Sentencing Procedure) Act. That is not say that the offence was not serious, it is just that it has been subsumed by the repeated break enter and steals for which I will impose sentence now. 32. For the offences which earlier resulted in s 12 bonds, the offence of 15 September 2015, I revoke the order for suspension, impose a sentence of imprisonment of 15 months to date from 12 August 2016. 33. For the earlier offence of 20 September 2015 I revoke the order for suspension, impose a sentence of imprisonment of 15 months to date from 12 November 2016. 34. For the fresh offences of 4 July 2016, I take into account the matters on the form 1, and the offence of 3 August 2016 I impose an aggregate sentence. If I had not imposed an aggregate sentence I would have imposed a sentence of imprisonment of three and a half years for the 4 July matter and two and a half years for the 3 August matter. The aggregate sentence I impose for those matters is one of five years, to date from 12 August 2017 with a non-parole period of three years. The non-parole will thus expire on 11 August 2020 on which day the offender is eligible to be released to parole. 35. I have found special circumstances, as is obvious, they relate to the fact that the offender is institutionalised and will need an extended period of supervision on parole to assist his rehabilitation into the community. 36. The overall sentence I thus impose consists of a non‑parole of four years with a head sentence of six years. I believe that makes him eligible for the compulsory drug treatment program and so I refer him to the Drug Court. 37. I note that, the back- up offences on the s 166 certificate are withdrawn and therefore dismissed. ********** 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: 22 February 2017