District Court New South Wales Medium Neutral Citation: R v TAYLOR [2019] NSWDC 163 Hearing dates: 3 May, 16 May 2019 Date of orders: 23 May 2019 Decision date: 23 May 2019 Jurisdiction: Criminal Before: Lerve DCJ Decision: Sentenced on substantive matter (taking into account matters on Form 1) 3 years 4 months with a non-parole period of 2 years, back up charges released pursuant to s10A of the Crimes (Sentencing Procedure) Act, 1999 Catchwords: CRIMINAL – sentencing – relevant factors on sentence Legislation Cited: Crimes Act, 1900 Criminal Procedure Act, 1986 Crimes (Sentencing Procedure) Act, 1999 Cases Cited: The Attorney General's Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act No. 1 of 2002 (2002) 56 NSWLR 146 R v Harris [2007] NSWCCA 130 R v Merrin [2007] NSWCCA 255 McGoldrick v R [2012] NSWCCA 7 R v Clifford [2008] NSWCCA 190 R v French [2010] NSWCCA 24 Bugmy v The Queen [2013] HCA 37 Beale v R [2015] NSWCCA 120 Category: Sentence Parties: Director of Public Prosecutions (Crown) Nicholas Kevin TAYLOR (Accused) Representation: Solicitors: Mr A Hanshaw (DPP) Mr N Rump (Aboriginal Legal Service) File Number(s): 2017/377435 Publication restriction: No Judgment 1. The offender pleaded guilty at the Wagga Wagga Local Court on 20 February 2019 to one count contrary to s 112(2) of the Crimes Act, 1900 namely: That (he) between the 12th day of December 2017 and the 13th day of December 2017 at Wagga Wagga in the State of New South Wales, did break and enter the shop of Andrew Stein situate at Unit 2 of 22 Edward Street, Wagga Wagga, and then in the said shop did commit a serious indictable offence (namely) larceny in circumstances of aggravation, (namely) he used a white Holden Commodore Station Wagon bearing New South Wales registration DDE10K as an offensive weapon to ran through the front doors of the residence whilst in the company of other offenders. 1. The plea of guilty was adhered to at the sentence hearing at the Wagga Wagga District Court on 3 May 2019 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty. 2. The maximum penalty for the offence for which the offender appears for sentence is 20 years imprisonment. Parliament has specified a standard non-parole period of five years imprisonment in respect of the offence. As the matter carries a standard non-parole period I acknowledge that I am engaged in a one-step instinctive process in which two of the principal guideposts are the maximum penalty and the standard non-parole period. 3. The offender asks that when passing sentence in respect of the charge contrary to s 112(2) of the Crimes Act I take into account a total of seven matters set out on a Form 1 document. In passing sentence I will need to apply and give proper effect to the principles enunciated by the Court of Criminal Appeal in The Attorney General's Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act No. 1 of 2002 otherwise known as the Guideline Judgment on Form 1 matters reported at (2002) 56 NSWLR 146. Some of the matters on the Form 1 are quite minor but some are not. The number and nature of at least some of the matters on the Form 1 document will have some impact on the sentence to be ultimately imposed on the offender. 4. Further the offender appears for sentence in respect of a series of seven regulatory traffic offences attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986. Those matters carry a fine only. I indicated at the sentence hearing that given that a substantial sentence of imprisonment must be imposed in respect of the offence contrary to s 112(2) of the Crimes Act, 1900 I proposed to deal with those matters attaching to the s 166 Certificate by means of s 10A of the Crimes (Sentencing Procedure) Act. I did not understand either counsel to dissent from that proposed course. Facts 1. The statement of agreed facts is relatively lengthy as they contain the facts relating to the matters on the Form 1 document as well as the matters attaching to the Certificate pursuant to s 166 of the Criminal Procedure Act. 2. The first part of the facts deal with three of the regulatory traffic matters on the s166 certificate. On 6 December the offender purchased a white Commodore sedan bearing plates CI14QT for $550. At the time of purchase the offender was advised by the vendor that the vehicle was unregistered, uninsured and required a blue slip. The offender, who has never been licensed to drive a motor vehicle, drove the vehicle to McDonald's in Fernleigh Road, Wagga Wagga and entered the restaurant with Caine Fox. The offender was caught on CCTV inside the store. After about 25 seconds the offender and Caine went to the carpark and noticed a police vehicle parked directly behind the Commodore. The offender and Caine then left the area and went towards a service station. After police left the police vehicle, Fox returned to the Commodore, unlocked it and entered it and a little later drove it to the service station where the offender entered the driver's seat and drove away. 3. Police were approached by members of the public who stated that they had seen the vehicle take off at speed from the McDonald's carpark. A check revealed that the vehicle had registration cancelled in June 2017 and it was last registered to a Kooringal (another suburb of Wagga Wagga) address. 4. The offender drove the Commodore to the Kooringal Hotel where he entered through the rear doors leading to the poker machine area. Police were conducting a patrol of the area, saw the vehicle and waited for the driver to return. The offender returned to the vehicle at about 8.25pm and drove away, driving the incorrect way in a one way lane. Police attempted to intercept the vehicle. 5. The vehicle turned into Lake Albert Road and police activated their warning lights and sirens. The vehicle crossed to the incorrect side of the road in order to evade police. Police turned off all warning devices because of the danger posed to other road users. 6. Police obtained the CCTV footage from the Kooringal Hotel as well as the McDonald's restaurant in Fernleigh Road and were able to identify the offender and Fox. 7. What I have just recited relates to the offences of the Driver Never Licensed Drive Motor Vehicle, Use Unregistered Vehicle, Use Uninsured Vehicle and Fail to Stop when directed to do so, which are four of the regulatory traffic matters and are sequences 1, 2, 3 and 5 on H68167687. I observe that the offender is probably fortunate that he was charged only with Fail to Stop when Directed to do so rather than something more serious. 8. The next offence is sequence 18, which is an offence of Take and Drive Motor Vehicle, contrary to s 154A of the Crimes Act, which is one of the matters on the Form 1 document. At about 7pm on 12 December 2017 the victim parked his white Commodore station sedan registered DDE10K in a car park near the local RSL club, leaving the vehicle unlocked and a key underneath the visor. The offender sometime later came upon the vehicle, entered it found the key and drove it away. The offender was unlicensed, which accounts for sequence 19 attaching to the s 166 certificate. 9. The offender drove that Commodore towards the central business district of Wagga Wagga where he stopped outside of 53 Thorne Street, Wagga Wagga where he without permission entered a Toyota Prado registered AM 1278 from which he stole a Westpac credit card belonging to Shonna Meurant, the owner of the vehicle. This conduct grounds sequences 20 and 21 on the Form 1, namely Unlawful Entry into a Vehicle and Larceny. 10. Next is the substantive matter of the aggravated break enter and steal offence, which is sequence 22. The victim is Andrew Stein, who conducts the business Bike Bits and Mechanicals at unit 2 of 22 Edward Street, Wagga Wagga, which is the major east-west thoroughfare through Wagga Wagga. The business sells and repairs motor cycles. 11. At about 5.20am on 13 December 2017 the offender attended the premises in the white Commodore DDE10K previously taken from the RSL car park. The offender reversed the motor vehicle to the front windows of the business and then reversed at speed with the rear of the vehicle crashing into the business premises. The offender and an unknown co-offender exited the vehicle and stole two KTM50SX two stroke mini bikes, one belonging to Mr Stein and the other belonging to Brendan Kearns. The offender also stole two pairs of motor cycle goggles from a display stand. 12. At about 5.30pm a witness travelling past the location saw the vehicle reversed into the business, did a u turn and kept the premises under observation. After seeing someone in the driver's seat of the vehicle he contacted police by 000. Police attended at 5.40 but the offender had gone. Damage to the doors and smashed glass was seen. 13. Sequences 23, 24 and 25, being the offences of Take and Drive Conveyance, Rider Not Wear Helmet and Driver Never Licensed, are the next matters dealt with in the facts. Shortly after 5.40am Highway Patrol police patrolling the Ashmont area observed two KTM motor cycles exit Madang Street and travel across Tobruk Street into Jenkins Street. Police observed the offender, who was not wearing a helmet and looked directly at them to be riding one of the motor cycles. The offender was able to evade police. 14. About 10 minutes later police located the white Commodore DDE10K, that is, the vehicle used in the "ram-raid", in the rear yard of 1 Madang Street, Ashmont. Mr Stein later confirmed that two KTM50SX motor cycles had been stolen together with $150 in cash. Police later located the two stolen motor cycles in Ashmont. 15. The offender was sighted by police in Callaghan Street, Ashmont and after a short foot pursuit he was arrested. The offender was not compliant with police and attempted to get out of the grasp of the arresting officer, which relates to sequence 26, a charge of Resist Police. 16. On being searched, the offender was found to be in possession of a single Holden car key, a black torch, a pair of black scissors and black gloves to which sequence 27, Possess Housebreaking Implements, relates. 17. The search also revealed $9 in 50 cent coins and $150 being the amount taken in the course of the Break and Enter. This relates to sequence 28, Deal with Proceeds of Crime. 18. The offender was interviewed and denied any knowledge of the break and enter offence. Assessment 1. Mr Rump on behalf of the offender submitted and the Crown Prosecutor agreed that the Aggravated Break Enter and Steal matter was below mid-range. Larceny is at the cusp of being a serious indictable offence. The premises were business premises where given the hour it was unlikely that any person would be present. The property taken, while certainly not trifling, was not substantial. However, the method of the break-in, i.e. the "ram raid", is also a relevant factor in the determination of the objective seriousness of the matter. In all of the circumstances the matter is moderately below mid-range. 2. None of the matters on the Form 1 document are particularly remarkable. In particular, the charges of larceny, resist police, possess house-breaking implements and deal with the proceeds of crime are certainly very much towards the lower end of the scale of seriousness for matters of that type. 3. The matters attaching to the s 166 certificate are regulatory traffic matters that would in other circumstances attract modest fines. Criminal History of the Offender 1. The offender was born on 30 May 1997; accordingly, he is now almost 22 years of age and was 20 at the time of offending. He has a record in the Children's Court for a number of Aggravated Break Enter and Steal charges. Likewise he has been convicted of Break Enter and Steal in the Local Court and has been sentenced to terms of imprisonment. He has also been convicted of Receiving, Being Carried in Conveyance Taken without the Consent of the Owner and Police Pursuit matters. Despite his relatively young age the offender has a record that does not entitle him to any particular leniency. Issue of General Deterrence 1. Noting the offender's age and his record in the Children's Court and the Local Court, the offender can appropriately be referred to as a repeat offender so far as offences of Break Enter and Steal are concerned. The offence contrary to s 112(2) for which the offender appears for sentence would have involved significant inconvenience to the proprietor as well as the financial loss of the property taken. Repairs to the premises would have had to be completed at short notice. There is also the issue of increased insurance premiums which affect all of the community through increased prices and the like. 2. Further, in decisions such as R v Harris [2007] NSWCCA 130, R v Merrin [2007] NSWCCA 255 and McGoldrick v R [2012] NSWCCA 7 the Court of Criminal Appeal made it plain that deterrent sentences should be imposed on repeat offenders for break enter and steal offences. Those cases dealt specifically with residential premises however the later decisions of R v Clifford [2008] NSWCCA 190 and R v French [2010] NSWCCA 24 made clear that the principles enunciated in the earlier cases to which I have referred also apply to commercial premises. Sentence Assessment Report (SAR) 1. The offender is serving a sentence in respect of unrelated offending, the non-parole period of which expired on 13 May 2019. There will be issues with partial accumulation and totality to be dealt with in this sentencing exercise. 2. The SAR sets out that the offender enjoys the support of his mother and partner. The offender's mother and a number of family and friends were in court supporting the offender at the sentence hearing. The offender told the author of the report that he was using illicit substances at the time of the offending. 3. Under the heading "History of anti-social behaviour" the author of the report notes that, "Mr Taylor's offending behaviour appears to be underpinned by his acceptance of a criminal lifestyle combined with risk taking behaviours and his abuse of illicit substances". The offender has incurred a number of disciplinary offences while in custody. He reported daily use of non-prescribed buprenorphine while in custody. This was confirmed in his evidence before me. 4. Of concern, the author noted that the offender appeared to normalise his offending behaviour while justifying his criminal lifestyle saying that the victims of the "break and enters" would be insured. While the offender appeared remorseful he did not demonstrate much regret for his actions. The author opines that the offender demonstrates a lack of insight into the offending behaviour. 5. The offender expressed a willingness to the author of the report to address his substance abuse issues and highlighted that a previous stint in rehabilitation had been successful in that he was abstinent from illicit substances for an eight month period. 6. The report goes on to indicate that the offender's supervision was unsatisfactory due to his resistance to comply with reporting obligations. His response generally with Community Corrections has been unsatisfactory. He is assessed as a medium/high risk of re-offending. Subjective case for the offender 1. The offender gave evidence in his own case. At the outset I am constrained to comment that the offender was most unimpressive. He said that the interview with the author of the Sentence Assessment Report (SAR) lasted only 30 to 40 minutes and that the interview was unable to be completed because he was moved the following day. However, the attitude that was apparent to the author of the report also was obvious to me from the evidence of the offender. 2. The offender gave evidence that he has been with his partner for four years and they have a three year old son, Archie. He said that the relationship has been positive. Later in the evidence the offender said that when released he wants to be a good father and get a job. He has support from his mother, who as I have said was present in court. He has daily telephone contact with his mother. He is the third youngest of seven children. He is one of four of them presently in custody. 3. The offender gave evidence that his father was a "junkie" and that there was a lot of violence in the household directed to his mother. I accept that the offender was witness to drug abuse and domestic violence in his formative years, enlivening the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37, reducing the offender's moral culpability to an extent. While I accept the factors are enlivened, the offender was not forthcoming with much detail despite questions from Mr Rump and me. In the absence of detail I cannot give those factors the weight that I might have been able to with greater detail of the deprivations experienced by the offender. 4. The evidence continued that he commenced using cannabis at 13 or 14 years of age and that he commenced using "ice" or methamphetamine on a daily basis when he was 17. He is now 21, almost 22. He was using that drug at the time he committed the offences for which he now appears for sentence. He said that he resorted to taking drugs as a coping mechanism. 5. Further the offender said that he would like to give further rehabilitation "a go". However, there was no evidence of any inquiries that had been made or even a suggestion as to which facility or location he would want to attend. The offender said that on release he would like to move out of Wagga Wagga to start afresh and to get away from the bad influences in his life. 6. The offender said in evidence that he felt bad for the owners of the shop and acknowledged that they had to spend money to get the shop repaired. However, the offender was far from convincing. For the whole of his evidence he had a reluctant and grudging tone and answered "no comment" a number of times to questions from his own solicitor and the Crown. I also note the contents of the SAR. For these reasons I am not prepared to find on balance that the offender is remorseful. 7. Further, noting that the offender admitted in his evidence and to the author of the SAR that he is using non-prescribed drugs on a daily basis, he has incurred disciplinary offences and his poor record with Community Corrections as set out the SAR, I am not prepared to find on balance that the offender has good prospects of rehabilitation and in fact the prospects are guarded. Likewise, noting the offender's age and what is expressed in the SAR, I am not prepared to find on balance that the offender is unlikely to re-offend. Submissions 1. Mr Rump put that I would be guarded about accepting the SAR at face value. Given the grudging and reluctant attitude that was on occasions bordering on hostile of the offender in the witness box I have no difficulty at all in accepting the SAR. 2. It was put and I accept that the "Bugmy" factors are enlivened. However, I repeat the earlier observation that I cannot give those factors the same weight that I might have been able to do with more and significant detail. It was put that the objective seriousness of the offending was below mid-range. I have made findings in that regard. I agree that the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty. It was put that the sentence for the present matter would be back-dated to 14 May 2018. There was no particular opposition to this submission by the Crown and accordingly that is the date on which I will commence the sentence. I observe however that the degree of concurrency extended to the offender is quite generous. 3. Mr Rump also put and I accept that there must be a finding of special circumstances. The offender is quite young and it is to be hoped that he might respond more positively upon his release on this occasion. There is a need for an extended period of supervision to ensure that the offender receives or is at least is given the opportunity to undertake meaningful rehabilitation so far as his issues with illicit substances are concerned. There is also the issue of the offender requiring assistance with re-integration into the community. Further, there is the issue of partial accumulation which is another reason to justify a finding of special circumstances. 4. It was put that the offender is in danger of institutionalisation. The offender has spent very little of his adult life out of custody and I accept that there is a real danger of institutionalisation. However, I note the effect of the decision of Beale v R [2015] NSWCCA 120 at [68]-[69]. I propose to make a reasonably generous finding of special circumstances. It is to be hoped that the offender will grasp the opportunity on this occasion when he is released at the expiration of the non-parole period. 5. The Crown conceded that the matter was below mid-range and that the "Bugmy" factors are enlivened. The Crown reminded me of the need for general deterrence. I have referred to a number of authorities in this regard earlier within these remarks. The Crown reminded me that there was no evidence of the monetary value of the goods being before me. This went to the assessment of the objective seriousness of the matter. General Remarks 1. The offender is currently serving an aggregate sentence of 28 months imposed at the Local Court at Wagga Wagga on 14 February 2018. The non-parole period of 17 months concludes on 13 May 2019. As best as I can determine from the criminal history that aggregate sentence related to six different offences, some of which were Police Pursuit matters and Take and Drive Conveyance. There is an issue of totality. As I have observed, I propose to date the sentence from 14 May 2018, which affords the offender a considerable degree of concurrency with the sentence he is currently serving. The finding of special circumstances will be more generous than what would otherwise be justified because of the issue of partial accumulation of sentences. 2. I must give proper effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999. Section 3A sets out the purposes of punishment, namely: 1. To ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community. 1. Section 5 provides in effect that a court should not impose any sentence of imprisonment unless it comes to the conclusion that no other penalty is appropriate. Given the maximum penalty, the offending, the standard non-parole period and the matters on the Form 1 document there must be a sentence of imprisonment imposed in this matter. I did not understand Mr Rump on behalf of the offender to argue otherwise. 2. In respect of the matter contrary to s 112(2) of the Crimes Act and taking into account the seven matters on the Form 1 document, I am of the opinion that the appropriate starting point is 5 years imprisonment from which is deducted the 25% for the utilitarian value of the plea, which leaves a total sentence of 3 years and 9 months. Orders 1. In respect of the seven matters attaching to the s 166 Certificate, the offender is convicted. In respect of each matter I deal with them pursuant to s 10A of the Crimes (Sentencing Procedure) Act and impose no further penalty. 2. In respect of sequence 22 on H 6816787 that being the charge of Aggravated Break Enter and Commit Indictable Offence the offender is convicted. Taking into account the matters on the Form 1 document, the offender is sentenced to a non-parole period of 2 years 2 months from 14 May 2018 and which will expire on 13 July 2020. Thereafter there will be a period on parole of 1 year and 7 months to date from 14 July 2020 and which will expire on 13 February 2022. 3. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release. 4. The sentence indicates a significant finding of special circumstances, the reasons for which have been enunciated earlier in these reasons. The non-parole period is approximately 57% of the total sentence. 5. I note that given the non-parole period that expires on 13 May 2019 and the non-parole period I have just imposed the offender will be in actual custody from 14 December 2017 to 13 July 2020, which is a period of 2 years and 7 months. There will then be a period of 1 year and 7 months on parole that relates to the sentence imposed today, which is over one third of the total of the sentences the offender is serving, which is 4 years and 2 months. 6. Although it is entirely a matter for the parole authorities I recommend that any parole be conditioned that the offender undertakes appropriate treatment and counselling for substance abuse. ********** Amendments 30 May 2019 - Further hearing date added 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: 30 May 2019