R v Bray [2019] NSWDC 274

District Court New South Wales

Medium Neutral Citation: R v Bray [2019] NSWDC 274 Hearing dates: 20 May 2019 Date of orders: 20 May 2019 Decision date: 20 May 2019 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: Sentence of imprisonment of 4 years 3 months with a non-parole period of 2 years 3 months Catchwords: CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence — Circumstances of aggravation CRIME — Fraud — Dishonestly obtain property by deception Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002, [2002] NSWCCA 518 Bugmy [2013] HCA 37 Callaghan v The Queen [2006] NSWCCA 58 Fernando (1992) 76 A Crim R 58 Markarian v The Queen [2005] HCA 25 Muldrock v The Queen [2011] HCA 39 Category: Sentence Parties: Regina (Crown) Billy Bray (Offender) Representation: Ms Austen (Crown) Mr Jaramillo (Offender)

Director of Public Prosecutions (NSW) (Crown) Powerhouse Law Australia (NSW) (Offender) File Number(s): 2018/00209037

EX TEMPORE JUDGEMENT (REVISED) 1. Billy Bray appeared this morning in this Court where he adhered to pleas of guilty to offences upon which he was charged in the Local Court from whence he was committed to the District Court for sentence. 2. The first is an offence of aggravated break and enter and commit a serious indictable offence, namely larceny, in the circumstance of aggravation that he knew persons were present within the dwelling. The offence is contrary to s 112(2) Crimes Act 1900, with a maximum penalty of imprisonment for 20 years and a standard non-parole period of five years for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999. 3. The second offence is dishonestly obtaining property by deception contrary to s 192E (1)(a) Crimes Act, for which the maximum penalty is imprisonment for ten years. There is no standard non-parole period. THE SIGNIFICANCE OF THE STANDARD NON-PAROLE PERIOD 1. The provisions introducing standard non-parole periods are set forth in Part 4 Div 1A Crimes (Sentencing Procedure) Act, amended after the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39. S 54A Crimes (Sentencing Procedure) Act provides that the standard non-parole period for an offence is that which is included in the table to the provisions and that the standard non-parole period represents the non-parole period for an offence that falls within the middle of the range of objective seriousness, taking into account only the objective factors affecting the relative seriousness of that offence. S 54B Crimes (Sentencing Procedure) Act provides that the standard non-parole period is a matter to be taken into account when determining appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account. The Court is to record its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period, identifying each factor taken into account. 2. The objective gravity of the offence of aggravated break and enter will be assessed upon consideration of the objective factors affecting the relative seriousness of the offence without reference to matters personal to the offender or class of offenders, but wholly by reference to the nature of the offending bringing into account relevant factors provided in s 21A Crimes (Sentencing Procedure) Act, except for those that are essential elements or integral characteristics of the offence. 3. Fixing the non-parole period is but part of the task whereby the Court determines what is the appropriate sentence, regardless of whether guilt is admitted or established after trial and regardless whether the offence falls within the low, middle, or high range of objective seriousness for such offences. 4. The Court must not embark upon arithmetical or staged processes of reasoning when assessing sentence, but must identify a relevant matter, bearing upon the question of appropriate sentence in the process of intuitive synthesis discussed for example by McHugh J in Markarian v The Queen [2005] HCA 25. 5. When determining sentence for an offence for which there is a standard non-parole period it and the maximum penalty are legislative guideposts for the sentencing Court, along with other established sentencing practices and by reference to matters identified where relevant in ss 3A, 21A and 22 Crimes (Sentencing Procedure) Act.​ OBJECTIVE SERIOUSNESS​ 1. The objective seriousness of this offence falls below mid-range. The offence of aggravated break and enter and commit a serious indictable offence embraces misconduct within the premises extending from an offence that carries five years imprisonment, of which larceny is one, up to offences that can carry a maximum penalty of 25 years imprisonment. Thus by reason of the serious indictable offence committed as set forth before me in the facts, it is clear that this offence must fall below mid-range, perhaps at a point above halfway between the low point and mid-range on the scale. 2. It is always a matter of judgement where to place an offence on a scale of seriousness, but it would appear to me in the circumstances that is where this offence should be placed. 3. I have taken into account the fact that the offender was on conditional liberty in three respects at the time he committed this offence. He was on bail in respect of another prosecution, he was subject to parole, and was subject to a bond pursuant to s 9 Crimes (Sentencing Procedure) Act. He also has an extensive record of antecedent offences. Of course none of this increases the objective gravity of the offending, or the sentence to which he is imposed beyond that which is to be assessed upon those considerations to which I have referred. Neither does his antecedent offences and the fact that he was subject to conditional liberty does not aggravate the sentence that would otherwise be proportionate and applicable to the misconduct. 4. I am also reminded on his behalf that his behaviour was opportunistic and not part of a planned and criminal enterprise. There must have been some planning, which is conceded in the written submissions provided on his behalf, but I would not have expected that the planning employed in the commission of the offence was any more than what one would expect as integral to the commission of such a crime. 5. The offence was for financial gain clearly, the proceeds were spent in large measure on lifestyle apart from anything else, but once again financial gain in a break, enter and steal is integral to such misconduct and I do not take that as an aggravating factor, but simply bring it to account the circumstances embracing those matters when assessing the factual matrix upon which to determine sentence. 6. The placement of the offence on the scale where I have suggested of course does not mean that the standard non-parole period to be employed is to be determined as a fraction of the five years specified as standard non-parole period; it is simply matter that is brought to account to be synthesised with the objective assessment of the offending and the subjective case which has been presented on behalf of the offender, including what I find to be a strong basis for special circumstances in this case. 7. The second offence of dishonestly obtaining property by deception with a maximum penalty of ten years imprisonment falls well below midrange, as will be clear when I summarise the facts. FORM ONE OFFENCES​ 1. The sentence that would have otherwise been imposed for the aggravated break, enter and steal offence however must be increased beyond a merely marginal extent. There are Form 1 offences to be taken into account. The offender has confirmed his wish that they be taken into account for the assessment of sentence on that charge. He has admitted that he is guilty of them. 2. There are 19 offences altogether. One is of larceny of an item less than $2,000 in value. There are 17 offences of dishonestly obtain property by deception. These offences occurred when the offender used the credit card taken in the break and enter to transact various arrangements in different retail outlets, and used taxi services and the services of a brothel. There is also one offence of possessing implements to enter and drive a conveyance. 3. The approach to offences included on a Form 1 to be taken into account was the subject of a guideline judgement, Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002, [2002] NSWCCA 518. 4. The additional offences shall impact upon the sentence for the principal offence in which they are to be taken into account. There is to be an appropriate increase in the sentence that would have otherwise been applied to the principal offence were it standing alone. This course is taken to reflect the need for greater weight to be given to the aspect of personal deterrence arising from the extent of the offender's misconduct and the community's entitlement to retribution for the entirety of the offending. 5. He has of course gained a significant advantage by taking the course that he has. He does not face separate punishment for any of these additional offences. At the same time he has provided significant utility in the facilitation of the criminal justice process and he should be given the benefit of that decision. PRE-SENTENCE CUSTODY​ 1. He has been in custody for a significant period of time already; the Crown has helpfully provided a chronology to which I should refer: * He was charged on 17 November 2016 with supplying a prohibited drug, and on 31 March 2017 with goods in custody; * On 23 April 2017 he was allowed bail for the supply prohibited drug charge; On 16 June 2017 he was sentenced to a bond pursuant to s 9 Crimes (Sentencing Procedure) Act for a period of two years for the offence of goods in custody; * On 23 August 2017 he was called up in respect of that bond for breach and a further bond under the same provision was imposed for a period of two years; * On 21 October 2017 he was charged with goods in custody and driving a conveyance without consent of the owner; * On 8 February 2018 he was sentenced to imprisonment for 12 months with a non-parole period of six months for that matter; the non-parole period for that offence expired on 20 April 2018; * On 23 April 2018 he was released to parole for the offences of goods in custody and drive a conveyance; * On 2 July 2018 he committed the offences that are now before me; * The sentence for the supply of prohibited drug was backdated to commence on 3 July 2018; * On 6 July 2018 he was arrested for these present offences and bail was refused, his parole was revoked for the offences of goods in custody and driving the conveyance; balance of parole was commenced on 6 July 2018; * On 27 July 2018 he was sentenced to 13 months imprisonment, five months non-parole, for the supply prohibited drug; * On 24 October 2018 the balance of his parole ended, and on 2 December 2018 the non-parole period for the supply of prohibited drug offence expired; * He made a release application in December 2018 which was refused in the Local Court at Parramatta. Thereafter there was case conferencing. The offender accepted the plea offer made by the Crown and in due course he was committed for sentence to this Court, and in February 2019 his Supreme Court release application was withdrawn. 1. The Crown submits, and it is accepted on behalf of the offender, that the sentence I impose today in aggregate should commence on 3 December 2018. I agree with that submission and the concession made; it is in keeping with a discretion that I have as discussed by Simpson J in Callaghan v The Queen [2006] NSWCCA 58. THE FACTS​ 1. The facts are that the victims of the break and enter occupied their home in Parramatta. It is a townhouse style dwelling with a driveway to the garage accessible from the street. The garage door allows access directly into the dwelling house. 2. About 6pm on 1 July 2018 the man and woman occupants arrived at their home and parked their motor vehicle in the driveway. It was equipped with a motion activated dash camera located on the front windscreen. The vehicle was closed but was not locked. About 9pm they retired to bed, leaving their personal items and handbag on the dining room table. 3. The first Form 1 offence occurred at 12.07am on 2 July 2018 when the offender entered the driveway of the premises and walked past the front of the vehicle from which the motion activated dash cam captured his image. The images revealed his baseball cap, some distinguishing features, and the clothes he was wearing. 4. He entered the vehicle and took a small amount of coins, the key to the vehicle, and the remote control for the garage door. He left the vehicle and left the location. 5. The next is the break and enter offence. He returned about 12.46am to the driveway and used the garage door remote that he had earlier taken from the motor vehicle to open the premises. He entered through the garage door and located the living area. He removed a Toshiba laptop and a handbag owned by the lady who lived in the home. The handbag contained her personal items and her credit card. He left the dwelling through the garage door and was again captured on the dash camera. He rode away on a bicycle owned by the gentleman who lived in the premises. 6. The following offences occurred thereafter. 7. The second matter upon which sentence is to be imposed occurred at 3.30am when he rode on that bicycle to the BP service station at Rosehill. He purchased a number of items using the credit card to a total value of $253.73. 8. The following offences are all included on the Form 1. 9. The first occurred at 3.19am when he went to the Rosehill McDonald's and purchased food to the value of $19.10 using the credit card. He then went at 3.36am by taxi to a 7-Eleven Service Station. He made two further purchases there using the credit card, one for $94.19 and the other for $84.98 respectively. He left the location in the taxi. About 3.45am he used the credit card to pay for the taxi, totalling $42.00. About 4.05am he used the credit card for a second taxi, totalling $63.00. About 4.16am he used the credit card to recharge an Opal card to the value of $40.00. About 4.29am he, and it is said his uncle, attended a licensed brothel in Blacktown where services to the total value of $170 were provided. The offender gave evidence before me. He disputed that the person with him was his uncle and said it was his mate. About 5.18am he attended the Coles Express at Blacktown, where he bought a number of items in two transactions to a total of $173.85 using the credit card. About 5.30am he and again his uncle as recorded in the agreed statement, who I would accept was his mate, were picked up by another taxi at Blacktown in the vicinity of the brothel. He used the credit card to prepay the fare of $62.99. They were taken to the corner of Phillip and Church Streets at Parramatta. He sought and was given a cash advance of $55 using the credit card, an arrangement he came to with the taxi driver. 10. I pause to note here that the reference to the uncle must be an error in these facts in light of other information I have, which is in terms that his partner and mother of his two children is alleged to have formed an intimate relationship with his uncle while the offender was in gaol, and that caused unsurprisingly the breakdown of the relationship with his partner and, I would expect, whatever relationship he had had with his uncle. 11. About 5.46am he went to the 7-Eleven at Parramatta and made a purchase to the value of $80.96 using the credit card. About 5.53am he went to the Dallas Newsagency at Parramatta and spent $71.70 there using a credit card. About 5.59am he went to the New Express at Parramatta and spent $74 there using the credit card. About 6.03am he went to the Parramatta City Convenience Store and made purchases totalling $52.85 using the credit card. About 6.07am he entered the Woolworths Metro at Parramatta and purchased items to the value of $78.90 using the credit card. About 6.07am he went to Parramatta train station and made two purchases from the Powerpod vending machine to the total value of $110 using the credit card. About 6.11am he purchased items from an enterprise known as Laxminarayan Pty Limited to the total value of $68.00. About 6.13am he entered Ocean Trading Newsagent and made purchases totalling $59.90 using the credit card. About 6.19am he entered a taxi, travelled a short distance and used the credit card to pay the fare of $10.50, and about 11.31am he attended Blacktown Police Station wearing the same clothing in which he was depicted at these various locations when captured on the closed-circuit TV installed at those premises. 12. On 6 July 2018 the police were patrolling at Penrith and stopped and spoke to him. He was arrested. He was found in possession of an emergency glass breaker. He participated in an electronically recorded interview and made admissions to a number of the credit card transactions and identified himself on CCTV footage that was shown to him. THE OFFENDER​ 1. He is 25 years of age and has an unenviable record of antecedents for one so relatively young. His time in Court began in March 2009, charged with breaching an apprehended violence order; he failed to appear on one occasion. He was thereafter charged with aggravated break and enter and commit serious indictable offence; behaving offensively; riding a bicycle without a helmet; possessing prohibited drug; and another aggravated break, enter and steal. He was called up in respect of that matter after he was given probation which he breached and was put into custody. He failed to appear on an occasion. In September 2016 he was dealt with for taking part in the supply of a prohibited drug, for which he was sentenced to imprisonment. He was charged with damaging property; possessing false documents to obtain a financial advantage; larceny; goods in custody; further examples of larceny; driving dangerously; driving whilst disqualified; publishing or making a false statement; driving without ever having held a licence; driving an unregistered, uninsured motor vehicle. There are multiples of these offences across his history of offending. 2. He has spent a significant part of his life in gaol already. The custodial record begins in September 2013 when he spent one day; and then 13 January 2017 he went into custody and remained there until 28 March 2017; then 22nd and 23 April 2017; then from 18 May to 16 June 2017; 23 August 2017, one day; then from 24 August to 19 September 2017; 21 October 2017 to 23 April 2018; 27 May 2018; 7 July 2018 until the present time. 3. He has an array of custodial offences, including occasions of assault; access to drugs; damaging property. Of significant concern I find is the most recent entry in his classification details on 17 April 2010, which has the following: "Unscheduled remand review as inmate assaulted another inmate with hot water causing serious injuries. Regression warranted". 1. There are then further particulars as to the action taken. 2. There is a report following upon his breach of parole and I have noted from there that he suffers from what is said to be substance abuse and mental health issues with a poor response to supervision. There is a sentence assessment report which again summarises his poor response to supervision and obligations under a community service order report. The report includes this passage: "There has, other than one charge, there has been no case notes indicating any issues of poor behaviour being demonstrated by Mr Bray". 1. In my respectful view that understates the custodial record to which I have been given access. 2. His representation that upon release he would return to live with his uncle was met with the proposition that though he was living with his uncle in Blacktown for a period of three months after his release, his uncle asserts that he will not be able to accommodate the offender because of concerns regarding his ongoing criminality and lack of conventional lifestyle. 3. The report touches briefly upon his turbulent upbringing marred by his father's alcohol abuse; exposure to domestic violence; and his mother's numerous self-harm attempts from drug use. His mother died in 2015 and that appears to have been something of a catalyst causing him to increase his misuse of prohibited drugs. 4. There is reference to his relationship with his partner and mother of his two children, both of whom have been put into care it appears by Family and Community Services because of her misuse of drugs. 5. He is said to have achieved year 10 in high school, but this is inaccurate. He told me that he left school at the age of 14, as indicated in the psychologist's report tendered in his case, and although he has undertaken other training in custody he has not achieved a school certificate or an educational level of year 10 at high school. 6. His misuse of substances began at 14 when he smoked cannabis, up to 16, and then he began using amphetamine and regrettably methylamphetamine with all of the consequences that drug has for constant abuse. 7. He engaged in a pharmacotherapy maintenance program by way of Buprenorphine for about three months which assisted suppressing his drug cravings but this could not be verified. In the report he is assessed at a medium to high risk of re-offending, and options of other than a custodial order though touched upon have no application in this case. 8. Tendered in his case is a report from Avid Psychology written by Kris L. North. This provides greater detail and perhaps more accuracy than some of the aspects noted in the sentence assessment report. 9. I accept that this is a case to which the decision in Bugmy [2013] HCA 37 applies. Although Bugmy, and similarly Fernando (1992) 76 A Crim R 58, were concerned with indigenous offenders, the principles apply to all offenders who have had difficult times through their formative years. 10. The Crown does not challenge the proposition that he was raised in a dysfunctional home environment, which gave rise to early onset of conduct issues. 11. The psychologist suggests that he is adversely affected by his extensive history of incarceration and I would accept that it must be so. 12. The amount of time he has already spent in gaol at his age and the persistence with which he keeps coming back into the criminal justice system at least suggest a risk of institutionalisation which must be addressed in the sentence I impose today. 13. The dysfunctionality of his family environment through his formative years included the alcoholism that burdened his father, who was abusive. His mother was diagnosed with bipolar disorder and caused self-harm and made suicide attempts. 14. I understand from the report that the offender was called upon to intervene on occasions that that occurred, but the absence of care and nurturing left the offender and his siblings having to fend for themselves at a stage in life where that ought not to have been the case. 15. His mother had also served time in gaol for armed robberies. His oldest brother served a custodial sentence at some point but he has since turned his life around I am told by way of the report. 16. His education and employment history is discussed. His employment history has been very limited. His antisocial behaviours began at the age of 12. He stole sometimes for the thrill of it, sometimes out of necessity. He was involved in physical fights from the age of 16. His relationship with his former partner is discussed. His drug use is discussed in terms as I have summarised. He describes symptoms of depression and anxiety and upon clinical and psychometric assessment he was diagnosed with a stimulant use disorder - amphetamine type substance. 17. The psychologist offers opinion with regard to the effect of institutionalisation and how best he might be managed in the future, including participation of the compulsory drug treatment correctional centre program at Parklea, a proposition with which I agree. 18. The opinion offered is that although he has a medium to high risk of re-offending at the time of this assessment, there is potential with intensive and appropriate management to reduce that risk. 19. He made some attempt to enter a rehabilitation program at Wayback Limited, but that clearly is not possible. His opportunity to be there will dissipate on 4 June 2019 because he will be in gaol. 20. There is a document from the Chaplain at Parklea speaking of the offender's attendance at Chapel each week and his expressed interest in continuing his faith. One would like to think that is sincere but that is a personal matter between the offender and the Chaplain. If he is able to demonstrate sincerity in that regard it would no doubt stand him in good stead when his time for parole arrives. 21. There are also statements of attainment from TAFE, from courses he has undertaken while in custody, all of which indicate that he is capable of demonstrating at least an attitude consistent with someone who wants to achieve rehabilitation. Unfortunately though the history that he has so far demonstrated before that causes one to be rather circumspect, and even given the benefit of the doubt and accepting that he is sincere in his wish to rehabilitate, his pattern of offending, including custodial offences, suggest that his prospects of rehabilitation are at least limited. 22. In light of the response to the police when he was arrested, participating in an interview and making the admissions that he did, identifying himself on the recordings, I am satisfied that he has demonstrated appropriate contrition and remorse and I bring that to account as part of the material upon which to assess the sentence for each of these offences before I apply the discount of 25% to each of them for the utility he has thus provided. 23. I intend an aggregate sentence, I have taken into account the additional offences and I shall certify the Form 1. 24. The indicative sentence I specify for the aggravated break, enter and commit serious indictable offence is one of imprisonment of 3 years and 9 months, and I specify a non-parole period of 2 years. 25. For the offence of dishonestly obtain property by deception, I specify a sentence of 1 year as indicative. 26. I shall impose an aggregate sentence of imprisonment of 4 years and 3 months, including a non-parole period of 2 years and 3 months and a further period during which he will be eligible for parole of 2 years. That commences on 3 December 2018, the non-parole period will expire on 2 March 2021, and the parole period will expire on 2 March 2023. 27. In each case the offender is convicted of the offence to which he pleaded guilty. THE SENTENCES​ 1. Taking into account the additional offences on the Form 1, for the offence of aggravated break and enter I indicate a sentence of 3 years and 9 months. For the second offence of dishonestly obtaining property by deception, I specify 12 months imprisonment. I specify an aggregate sentence of 4 years and 3 months, including a non-parole period of 2 years and 3 months. Sentence is to commence on 3 December 2018, the non-parole period expires on 2 March 2021 and the entire sentence expires on 2 March 2023. He is eligible for consideration of his release to parole at the expiration of the non-parole period, which will be supervised no doubt in accordance with the legislation and the regulations that govern such matters according to his criminogenic needs at the time. 2. The offender is referred to the Drug Court for his eligibility to participate in the Drug Treatment Program that is available at Parklea. It will be a matter for the Drug Court to determine whether or not he meets the criteria.