R v Carter [2018] NSWDC 484

District Court New South Wales

Medium Neutral Citation: R v Carter [2018] NSWDC 484 Hearing dates: 4 June 2018 Decision date: 05 June 2018 Jurisdiction: Criminal Before: King SC DCJ Decision: Convicted. Special circumstances found – need for a longer period on parole to assist with any proposed counselling or treatment in respect of adopting a law-abiding lifestyle and to assist the offender in reintegrating into the community. Sentenced to a total term of imprisonment comprising of a NPP of 3 years and 6 months commencing on 4/8/17 and expiring on 3/2/21, and a balance of term of 1 year and 6 months to commence on 4/2/21 and to expire on 3/8/22. Eligible for release to parole on 3/2/21. Catchwords: CRIMINAL – sentence - break & enter house etc steal value <= $60,000 – theft of gold jewellery - DNA from offender's blood found on cupboard and mouth mark on window – heroin addict – other subjective matters Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Thomson & Houlton [2000] 49 NSWLR 383 Category: Sentence Parties: Regina Darren Frederick Carter Representation: Solicitors: Mr N Marney Mr M Betts File Number(s): 2017/238253

Judgment 1. HIS HONOUR: Darren Carter appears for sentence with respect to a single offence, being an offence of breaking into a house and then, while in the house, stealing certain property, to wit $7,725 worth of jewellery, the property of Helen Fitzgerald. That offence is contrary to s 112(1) of the Crimes Act 1900. The maximum penalty provided is 14 years' imprisonment and there is no relevant standard non‑parole period. 2. He was committed for sentence on 19 December 2017 from the Central Local Court, and it is accepted that the plea was at the earliest opportunity and that he is accordingly entitled to 25% discount for the utility of the plea, as referred to in Thomson & Houlton [2000] 49 NSWLR 383. The facts are agreed and are as follows: 3. On 17 July 2017, at about 4.15pm, the offender entered the yard of premises in Trafalgar Street, Annandale, being the residence of the victim, Helen Fitzgerald. 4. The residence is a three‑bedroom, semi‑detached house with a lockup garage adjoining. Although the garage is adjoining the main residence, it has its own locked entry door leading from the yard and out of sight from the street. 5. The offender entered the yard and removed a paving block from the path and used it to break the doorframe around the garage door and gain entry. He left the paving block lying near the garage door. 6. Inside the garage, the offender opened several cupboards, leaving behind a blood stain on a cupboard door. He removed several tools from the garage before making his way around the side of the house to a bedroom window. 7. The offender placed his face up to the bedroom window and looked through it, leaving a visible mouth mark on the window. 8. The offender then used tools obtained from the garage to jemmy open the window and gain access to the bedroom, wherein he commenced rummaging through the bedside drawers which contained a large amount of gold jewellery. 9. The offender removed several gold necklaces, bracelets, earrings and a pearl‑string necklace from the bedside drawers before making his way towards the hallway. 10. When the offender entered the hallway, an internal alarm system detected movement and caused the alarm to sound. The offender then made his way out of the premises via the bedroom window and left. 11. At 6.30pm, the victim returned home to discover her residence had been broken into and jewellery from the bedroom stolen. The total value of the jewellery stolen by the offender was estimated at $7,725. 12. Police were contacted and forensic officers were deployed to the scene and an examination undertaken. A swab of the blood on the door of a cupboard in the garage was analysed and the offender's DNA was recovered. 13. A swab of the mouth mark on the window to the bedroom was also analysed and identified as containing the DNA of the offender. 14. On Friday, 4 August 2017, the offender was sighted on Platform 18 at Central Railway Station. He was arrested and conveyed to the Sydney Police Station. 15. The offender declined to participate in an electronically recorded interview, as was his right. 16. None of the stolen jewellery has been recovered, nor has the offender provided any information to the police which might enable them to seek to recover the stolen jewellery. There is no evidence before the Court as to the cost of any damage to the garage door or the window. However, it is at least apparent from the facts that there was some significant damage to the doorframe of the garage door and probably some damage to the window caused by its being jemmied open with a tool. 17. The offence was clearly at least premeditated, although how long in advance is incapable of being determined on the facts. The property stolen had a significant value, and the privacy of the victim and the security of her home were breached by the offender. In the circumstances, the offending is at least in the midrange of objective gravity. There is no Victim Impact Statement but it is reasonable to expect that Ms Fitzgerald would have been highly concerned at the breach of her privacy and the security of her premises. 18. It would be an unusual woman who was not concerned by the loss of her jewellery, whether it was purchased by her, given to her or the result of some inheritance. It is likely that the theft of $7,725 in the circumstances of a break and enter would have had a significantly adverse impact on the victim, although there is no evidence that that impact went beyond what might be regarded as the foreseeable and expected sequelae, that is, stress and anxiety when leaving the home as to whether it might be again broken into and items stolen, and a concern while absent from the home that that might be happening.