District Court New South Wales Medium Neutral Citation: R v Pehar [2019] NSWDC 487 Hearing dates: 20, 24, 28 June 2019 Date of orders: 12 August 2019 Decision date: 12 August 2019 Jurisdiction: Criminal Before: Wilson SC DCJ Decision: At [58] Catchwords: CRIMINAL LAW – sentencing after trial – larceny – break and enter – take and drive conveyance – Offender never denied committing offence Legislation Cited: Crimes Act 1900 ss 112; 117; 154A; 195 Crimes (Sentencing Procedure) Act 1999 ss 3A; 21A Cases Cited: Dunn v R [2018] NSWCCA 108 R v Fangaloka [2019] NSWCCA 173 R v Ponfield (1999) 48 NSWLR 327 R v Todd [1982] 2 NSWLR 517 Category: Sentence Parties: Regina (Crown) Marco Pehar (Offender) Representation: Counsel: Ms S Gul (Crown) Mr B Quinn (Offender at trial) Solicitors: ODPP (Crown) Galloways Solicitors and Attorneys (Offender at sentence) File Number(s): 2014/160773 Publication restriction: None Judgment 1. The Offender appears before the Court today for sentencing in relation to a number of offences, in fact ten counts on an indictment, which went before a jury. He pleaded not guilty in the face of a very strong Crown case, apparently due to legal advice he obtained. Nevertheless, he will be sentenced on the basis that he was found guilty by a jury after trial lasting some six days and despite the advice he may have been given on a previous occasion and the fact, according to his current solicitor, that he has always admitted his guilt, he unfortunately will not be given any discount on sentence given the fact he pleaded not guilty to the ten counts on the indictment. 2. The following charges appeared on the indictment: 1. Counts 1, 2, 3, 4, 5 and 7 are all charges of larceny in breach of s117 of the Crimes Act. Each of those six counts carries a maximum penalty of five years' imprisonment; 2. Counts 6 and 9 which were take and drive conveyance, in breach of s154A(1)(a) of the Crimes Act. Each count, of which there are two, carries a maximum penalty of five years' imprisonment; 3. Count 8 being the offence of destroy or damage property in breach of s195(1)(a) of the Crimes Act carries a penalty of five years' imprisonment; and 4. Count 10 which is an offence of aggravated break and enter in breach of s112(2) of the Crimes Act carries a maximum penalty of 20 years' with a standard non-parole period of five years. The feature of aggravation in this case was the fact the offence was undertaken in company. 1. The maximum sentences that I have just read on to the record represent Parliament's assessment of the seriousness of the offending and are guideposts for sentencing. 2. The offending occurred between 7 and 26 May 2014. He was committed for trial on 30 October 2015 and arraigned on 10 March 2016. After that time various trial listings were vacated for a number of different reasons. The Offender stood trial before this Court at Parramatta from 17 September 2018. On 27 September 2018 the Offender was found guilty of all ten counts on the indictment. His bail was revoked and he has been in custody since that date. 3. There is a co-Offender, Nasim Hamouda, who pleaded guilty to a variety of charges, some common with this Offender, prior to the trial listing of this matter. I will refer to parity issues to the extent to which they arise in due course. 4. The sentence will proceed upon the following factual findings. At about 11.40am on 6 May 2014 three males entered the High Tech Digital CCTV store located in Lansvale. Two of the males asked an employee about a camera price, whilst the others looked at two boxes that were adjacent to the front counter containing CCTV cameras and equipment. The employee felt that the third male was acting suspiciously so she captured CCTV images of the three males. Those three males were Raed Hanna, the co-Offender and the Offender. 5. The following facts relate to the first count of larceny. The next night two CCTV cameras were stolen from outside of the store for the combined value of $700. Footage shows a vehicle with similar features to a Holden Commodore arriving at the location. The male who exited the driver's seat and removed the ladder from the vehicle resembles the physical stature of the Offender. The Offender struck the CCTV camera a number of times before the image disconnected. 6. The following facts relate to Counts 2 and 3, both of which are larceny. On the morning of 15 May 2014 a CCTV camera was stolen from the Wong Seng Co at the same industrial complex as Hi Tech Digital CCTV. The same camera model that was stolen at these premises was located during a search warrant at the co-Offender's premises. CCTV footage of the offence revealed three males involved in the theft. Minutes later two further CCTV cameras were stolen from Boonmar Enterprises, again in the same industrial complex. These two cameras had a combined value of $1,600. One of the cameras stolen had the same model number as a camera found at the co-Offender's premises. CCTV footage showed three persons involved in the theft with one of the males having the physical stature similar to that of the Offender. 7. At around the same time two further CCTV cameras were also stolen from Bethel Shopfitting World within the industrial complex. Additionally two CCTV cameras and a truck with registration number ending 4EO were stolen from Petra Equipment. The truck was later found on Woodville Road. CCTV footage of the incident revealed three males involved in the theft, including one male figure whose physical stature was consistent with that of the Offender. 8. On 25 May 2014 four Samsung CCTV cameras were stolen from Bluestar Air Conditioning valued at about $1,600. CCTV footage of the incident revealed the male of a similar stature as the Offender committing the theft. 9. The following facts relate to the destroy damage property and take/drive conveyance. In the early hours of 26 May 2014 a CCTV camera and window were damaged outside the industrial complex. Another CCTV camera and white van with registration number ending 982 were taken from the same building. CCTV footage showed the three males arriving at the industrial complex in a Holden Commodore. One of the males who exited the vehicle had a stature similar to that of the Offender. The two males who exited the vehicle then approached a white van which was parked and secured outside the building. The two males forced access to the driver's side door of the van before driving away in the vehicle. The males used the van to commit Count 10. 10. The following facts relate to Count 10. A security guard who was doing his patrol around Lansvale heard an alarm go off in the industrial complex. Upon arriving at the complex a security guard saw a silver Holden Commodore which conducted a U-turn and drove away from him. The security guard followed the vehicle along the Hume Highway but the vehicle sped away and the security guard lost sight of the Commodore. 11. Upon returning to the scene the security guard saw the white van parked facing towards the shop that had been broken into. The roller door of the shop had been damaged as if the van had been used to ram the door. The engine of the van was still running. The security guard contacted Police. 12. The Police arrived and contacted the owner of the premises, cameras and hard drives were stolen from the premises with a combined value of $5,150. The shop owner obtained CCTV footage from the shop and it recognised the two males as the same males who previously entered the store on 7 May 2014 being the Offender and Mr Hanna. 13. Upon being granted a search warrant the police seized the Offender's mobile phone and silver VH Holden Commodore. Inside the vehicle Police located a bolt cutter, a number of gloves, a black Lonsdale jumper, black track pants and a number of documents in the name of the Offender. 14. At Mr Hamouda's residence police found more clothing and CCTV cameras and equipment that was stolen from the premises. When arrested the Offender participated in a recorded interview where he said that on the evening in question he had watched the football and went to McDonald's with some friends in the area. Those were the agreed facts. 15. In an affidavit of the Offender sworn 24 June 2019 he stated that he is barely literate and had not read the brief of evidence. The Offender somewhat belatedly stated his lawyer never asked him if he was guilty or not guilty, merely saying that the evidence was circumstantial and that he had a good chance of winning the case. This is perhaps inconsistent with the Offender's statement to police that he was not involved in the robberies. 16. When the co-Offender pleaded guilty he recalled stating that he had asked his counsel if he should take a deal to which his counsel repeated his assertions regarding the state of the evidence. At paragraph 12 of the affidavit of the Offender that he said he accepted the verdict of the jury and the facts that the Crown case stated. 17. The Offender relied upon a report by Sarah Brand, Psychologist. He spoke of an upbringing at Warwick Farm with two loving parents. Both of his parents worked and were hard-working immigrants from Croatia. The Offender stated he regularly pushed the boundaries at home with both his parents disciplining him by methods which were entirely appropriate. The Offender said the values his parents instilled in him were that school was important, swearing was wrong, stealing was wrong and to be nice to everyone. He had a relatively stable upbringing and to that end the Offender still lived with his parents until his bail was revoked. 18. The Offender reported that he did not enjoy school, leaving part way through Year 12. He had a good group of friends and played rugby for his school. He disclosed to Ms Brand, his psychologist, experiences of bullying when he was young because of his body shape which impacted his self-confidence. 19. The Offender reported an unstable work history, working in his teenage years at McDonald's and Kennard's Hire. Since a young age the Offender worked with his father in carpentry but described his involvement as on and off. Since the Offender's father became ill he, the Offender, has had to shoulder more of the burden of the family business. 20. The Offender had a history of methylamphetamine abuse, starting at the age of 22. The Offender's habit cost him approximately $200 to $300 per day. He kept his habit a secret from his family and from groups of friends. He said that ice made him feel invincible and increase his confidence. Ms Brand opined that based on the pattern of intake at the time of the offending the Offender met the diagnostic criteria for Severe Opioid Abuse Disorder in accordance with DSM-V. 21. The Offender's account to Ms Brand was fairly brief. He stated that he was motivated by one of the co-Offenders wanting CCTV cameras for his house and that he did not ask questions at the time. He stated that his judgment was impaired by drugs at the time and he cannot explain why he committed the offences. 22. In the first Sentencing Assessment Report a similar history was given to the Community Corrections Officer. At the time of the interview in November last year the Offender reported a willingness to participate in programs whilst in custody. The Offender was assessed as a low to medium risk of re-offending. The subsequent Sentencing Assessment Reports in January and June of this year report that he has had no infractions whilst in custody. 23. I read an undated letter of Iva Pehar, the Offender's sister. She said that the family was shocked when the Offender was arrested in 2014 and that he told them not to come to his trial. Ms Pehar noted that after his arrest and before the revocation of bail she had seen a great deal of change in him, commenting that he was back working for his father and wanted to make his parents proud. Ms Pehar did not give evidence and her assertions must be approached with caution as they are untested. 24. I have also read a letter by the Offender's father Mr Pehar. He has owned his own business for 25 years. The Offender worked alongside him from a young age. He, like his daughter, purports to have seen a lot of change in the Offender's behaviour since his was arrested showing an eagerness to work and ultimately take over the business. Mr Pehar confirmed that when the Offender is released from custody he will take over full management of the business. It remains to be seen how this might be achieved given the Offender's claimed problems with literacy. Again this witness was not called and the Court must approach his evidence with caution. Its consistency, however, with the evidence of the Offender's sister is so they corroborate each other such that the Court can proceed with some confidence that there has been a change in the Offender since his arrest. 25. I have also read a letter of attendance from Remand Addictions program. The letter noted that the Offender had been attending a program whilst in custody and had continually engaged and participated in group discussions. 26. Submissions were made in writing by both parties, they were marked for identification. The majority of the Crown's submissions concerned principles of sentencing relating to Count 10, being the aggravated break, enter and steal. The Crown submitted that general deterrence was particularly important when considering the objective seriousness. The guideline judgment of R v Ponfield (1999) 48 NSWLR 327 was referenced. The factors of vandalism and repeat incursions as noted in that judgment were present in this matter. However, repetition of offending also arises and is reflected by the number of charges for which the Offender is to be sentenced. In my view, this matter may be distinguished from Ponfield as most of the factors referred to by the Court of Criminal Appeal in that matter are not present in this case. 27. It was submitted that the offending did not appear to be sophisticated, but there was evidence of planning. The Offenders had attended the premises of High-Tech Digital CCTV to undertake a reconnaissance of the premises and, I infer, to plan the robbery. The Crown submitted that all offences fell within the mid-range of objective seriousness. 28. In terms of aggravating factors, the Crown submitted that for all but count 10 the aggravating factor of committing the offence in company was present for those other offences. As this is the aggravating feature warranting the more serious charge for Count 10, it will not be taken into account as a statutory aggravating factor pursuant to s21A for that charge. It, however, remains as an aggravating factor in relation to the remaining charges. 29. Additionally, it was submitted that the aggravating factor of planning was present. I find that planning is inherent in offending of this type and I do not accept that it is otherwise a statutory aggravating factor. 30. With regard to the delay in the matter coming before the Court, the Crown submitted that the delay occurred as the matter slowly progressed through the trial listings at the Parramatta District Court. The Crown noted the principles of R v Todd [1982] 2 NSWLR 517, and the issue of delay may be relevant in assessing the prospects of the Offender's rehabilitation. The delay in going to trial in fact provided the Offender with an opportunity to turn his life around in the manner described by his sister and his father, which now, regrettably, will be disturbed by a custodial sentence. 31. On behalf of the Offender, it was submitted that due to the way the Offender's previous legal representative had run the case, the Offender is not afforded any discounts and cannot make a submission as to remorse. It is with some regret that I accept those submissions. It was submitted that the offences are not the most serious examples for offences of this type, considering that the behaviour was unsophisticated and that the Offender was readily detected. 32. The Offender's legal representative conceded the aggravating factors presented by the Crown about which I have already made findings. It was also submitted on behalf of the Offender that the mitigating factors of good character, low risk of re-offending and excellent prospects of rehabilitation exist in this matter, based on his age, willingness to address criminogenic factors and his familial support. The strength of the evidence as to these favourable matters is tempered by the fact that the basis for them is the evidence to which I have referred, which remains untested. Nevertheless, I do find that there is a low risk of re-offending and the prospects of rehabilitation ought to be considered good. 33. So to be clear, in terms of any statutory aggravating factors, in respect of all offences save for Count 10, I find that the offending was aggravated by the offending being committed in company. I decline to find planning, as submitted by the Crown. In terms of any statutory mitigating factors, I find the prospects of rehabilitation are good. Considering the nature of the offences, what was stolen, the wilful destruction of property and the impact that each of these offences would have had on innocent small business owners, I find that the objective seriousness for each offence is at or just below the mid-range. 34. I have turned my mind to the question of how the Court ought to deal with the Offender's drug addiction at the time of the offending. This is not a case where the Offender was predisposed to drug addiction whilst a young child. His drug taking and subsequent addiction occurred through a choice he made as an adult. I note that whilst he has taken active steps to rehabilitate himself, both in the community and in custody, his drug taking was a choice leading to this offending. It is not a matter which would mitigate against sentence. 35. I have already found that the Offender's chances of rehabilitation are good and the risk of re-offending is low. These findings, combined with his relative youth and being his first time in custody, justify a finding of special circumstances which I make. 36. Before sentencing the Offender, I am mindful of the purposes for sentence set out in the s3A of the Crimes (Sentencing Procedure) Act. The first is to ensure adequacy of punishment. The next is to ensure deterrence. Offending of this type calls for stern general deterrence as well as specific deterrence, although I am satisfied that if the Offender remains drug free the risk of re-offending as I have found it will be low, and therefore the need for specific deterrence will be affected by that finding. 37. The next purpose for sentencing is to protect the community from the Offender. In view of my findings about rehabilitation and re-offending, I find that the Offender is of just minimal danger to the community. The next purpose is to promote the rehabilitation of the Offender. I am satisfied the sentence to be imposed will achieve that. Next is to make the Offender accountable for his actions, to denounce the conduct of the Offender and to recognise the harm to the victims of the crime and to the community generally. 38. It was submitted on behalf of the Crown that the s5 threshold had been crossed and that a term of imprisonment was warranted. It was submitted on behalf of the Offender that, based on the favourable findings made in the subjective case, the Offender should have the benefit of a sentence within the community. 39. Recently the Court of Criminal Appeal in the matter R v Fangaloka [2019] NSWCCA 173 provided some assistance to sentencing judges as to the interpretation of s66 of the Crimes (Sentencing Procedure) Act, by first assessing the Offender's risk of re-offending and by which type of sentence that is best addressed. This is predicated, however, upon the Court finding that an aggregate sentence would not exceed three years. Given the number of offences for which the Offender is to be sentenced, together with the seriousness of the offending, I am of the view that a sentence of less than three years would be inadequate. Having considered all sentence outcomes, I find that a sentence of imprisonment by way of full-time custody is reasonable and justified. 40. Tomorrow Mr Hamouda will be sentenced for two offences with six offences on a Form 1. In Dunn v R [2018] NSWCCA 108, the New South Wales Court of Criminal Appeal held that the parity principle does not apply where the Offender was sentenced for an offence that a co-Offender had the same sentence taken into account on a Form 1. Additionally, the Court has to differentiate the culpability of co-Offenders by reference to the conduct of each in the joint criminal enterprise. The Offenders also have differing subjective cases and a further point of distinction is that the co-Offender pleaded guilty without putting the community and witnesses to the expense of a trial. 41. In respective of their respective culpabilities, the facts demonstrate that the Offender committed the offences personally as part of a joint criminal enterprise. Mr Hamouda however pleaded guilty to the offending to the extent which he has, as principal in the second degree. The co-Offender did have a criminal history prior to the offending, unlike this Offender. Further, Mr Hamouda's rehabilitation has only been recent and, whilst based on the evidence before the Court, Mr Pehar has not offended significantly since 2014 and has ceased illicit drug taking. 42. Whilst parity plainly arises between Mr Hamouda and Mr Pehar, strict principles of parity cannot be applied, given the factors to which I have just referred. I have endeavoured to craft a sentence which will avoid any grievance on the part of either Offender. To the extent there is any grievance, which I have attempted to avoid, I do not consider it to be genuine. 43. Prior to indicating an aggregate sentence, I am required to provide indicative sentences in relation to each of the ten counts. 44. In relation to Count 1, being larceny, it carries a maximum sentence of five years' imprisonment. I provide an indicative sentence of 14 months. 45. In relation to Count 2, also being larceny, this time just of one camera, it carries a maximum imprisonment of five years. I provide an indicative sentence of 12 months. 46. In relation to Count 3, being larceny, again two cameras, five years is the maximum. I indicate a sentence of 14 months. 47. In relation to Count 4, also larceny, also two cameras, noting the maximum of five years' imprisonment, I provide an indicative sentence of 14 months. 48. In relation to Count 5, also larceny and also two cameras, noting the maximum sentence of five years' imprisonment, I provide an indicative sentence of 14 months. 49. In relation to Count 6, being take and drive a conveyance, the maximum sentence being five years' imprisonment, I provide an indicative sentence of 16 months. 50. In relation to Count 7, being larceny four cameras, the maximum sentence being five years' imprisonment, I provide an indicative sentence of 18 months. 51. In relation to Count 8, destroy/damage property, the maximum being five years' imprisonment, I provide an indicative sentence of 8 months. 52. In relation to count 9, being take and drive a conveyance, the maximum period of imprisonment being five years, I provide an indicative sentence of 16 months. 53. And finally, in relation to aggravated break, enter and steal, the maximum sentence is 20 years' imprisonment with a standard non-parole period of five years. I provide an indicative sentence of two years and an indicative non-parole period of 16 months. The variation from the standard non-parole period of five years to the indicative non-parole period of 16 months can be justified on the basis of the finding as to the objective seriousness of the offending. 54. Considering the principles of totality, I have come to an aggregate sentence which, in my view, reflects the criminality of the offending behaviour, whilst also not being a crushing sentence. This requires the Court to stand back after announcing the indicative sentences to consider what sentence would be just and proportionate to the offending, having regard also to the subjective case of the Offender. 55. Mr Pehar, you are convicted of the following offences which are set out on the indictment: 1. Count 1, being a charge or larceny in breach of s117 of the Crimes Act; 2. Count 2 being a charge of larceny pursuant to the same section; 3. Count 3 being the same charge pursuant to the same section; 4. Count 4 being the same charge pursuant to the same section; 5. Count 5 being the same charge pursuant to the same section; 6. Count 6 being a charge of take and drive a conveyance in breach of s154A(1)(a) of the Crimes Act; 7. Count 7 being a charge of larceny again in breach of s117 of the Crimes Act; 8. Count 8 being a charge of destroy/damage property in breach of s195(1)(a) of the Crimes Act; 9. Count 9 being a charge of take and drive a conveyance in breach of s154A(1)(a) of the Crimes Act; and 10. Count 10 being a charge of aggravated break and enter in breach of s112(2) of the Crimes Act. 1. For those ten convictions you are sentenced to an aggregate sentence of six years, to date from 27 September 2018 and expire on 26 September 2024. Consistent with my finding of special circumstances, I sentence you to an aggregate non-parole period of three years to date from 27 September 2018 and expire on 26 September 2021. ********** 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: 12 September 2019