R v Bird [2019] NSWDC 675

District Court New South Wales

Medium Neutral Citation: R v Bird [2019] NSWDC 675 Hearing dates: 8 November 2019 Date of orders: 15 November 2019 Decision date: 15 November 2019 Jurisdiction: Criminal Before: Judge Priestley SC DCJ Decision: Taking into account matter on a Forms 1 sentenced to an aggregate term of imprisonment for 4 years with a non-parole period of 2 years. Make a compensation order in the total amount of $14,259. Catchwords: CRIMINAL LAW – Sentence - Forms 1 – Dishonestly obtain property by deception – Dishonestly obtain financial advantage – Fail to appear in accordance with bail undertaking – Larceny – Aggravation - Unsophisticated offending - Offences committed to support drug habit – On conditional liberty at time of offending – Sad and traumatic upbringing - Legislation Cited: Crimes Act Crimes (Sentencing Procedure) Act Criminal Procedure Act Bail Act Cases Cited: R v Price [2016] NSWCCA 50. Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR Category: Sentence Parties: The Crown Daniel James Bird Representation: Solicitors: Director of Public Prosecutions – The Crown Legal Aid Commission – The Offender File Number(s): 2018/00189058

Judgment

Introduction 1. Daniel John Shiels, aka Daniel John Bird, a name he prefers, appears to be sentenced on a total of 14 charges. Six of those charges are for sentence following committal ("the committal matters") and eight are to be dealt with pursuant to sections 166 and 167 of the Criminal Procedure Act in that they are to be dealt with by way of what is referred to as summary sentencing with this court exercising the limited powers of the Local Court ("the summary matters"). In addition in relation to one of the committal matters and one of the summary matters there are two separate form one matters to take into account. 2. The Crown material was contained in a bundle which became exhibit A. 3. Tab six of exhibit A sets out a lengthy recitation of the agreed facts running to some 15 pages. There is a certain similarity to a significant number of the charges and the agreed facts can be adequately recorded by describing the offender's main modus operandi and then by setting the matters out in a table to identify the more significant particular aspects of the offences. In a hopefully informative way I propose carrying out my assessment of the objective seriousness of each offence in the table following setting out the facts of each offence. In the Crown sentencing bundle which became exhibit A committal matters were numbered one to six and the summary matters in a following list were numbered one to eight. In the below table the left-hand column refers to the committal offences by number only and the summary offences by the letter S followed by the number corresponding to exhibit A. The reference to F1 and F2 is a reference to the two form ones. Sequence numbers and H references were also referred to in exhibit A but the reference to the counts as just described will adequately identify the respective offences. 4. 11 of the matters, being all of the six committal matters, one Form 1 matter and four of the summary matters are charges under section 192E, and in nine of those matters the method of operation of the offender followed the same pattern. That pattern was to express interest in the purchase of a motor vehicle that was for sale whether through a dealer or a private individual, to then agree a price to purchase the vehicle, and to then suggest that payment occur by way of an electronic transfer whether by way of a phone or the use of the victim's computer and, when that was done, to then show a so called receipt from the bank to the vendor. Although the document thus created indicates receipt it also indicates the money will not be transferred for two or three days and in the meantime the transaction is either cancelled by the offender or there is simply not money there to satisfy the transfer. The Crown fairly submits that none of these matters was terribly if at all sophisticated but does submit they were planned. I would accept both those submissions. As to the lack of sophistication the basis for that is that the offender used his own name, his own driver's license as a means of identification when necessary, and often used his own bank accounts. Whether he knew it or not he was also on occasion clearly being subjected to filming on a CCTV system and on one occasion was expressly requested and agreed to being photographed. For the offender it is said this shows an inevitability of being caught which frankly must be true. It was also said for the offender that this showed the offender was not thinking rationally though this is something for subjective consideration. The offender accepts there is a degree of planning and says the offending is thoroughly unsophisticated. 5. The parties were agreed as to the matters to consider in assessing the objective seriousness of the offences, with the focus being on the s192E offences. In addition to the issue of planning just discussed, it is relevant to consider the maximum sentence which for the s192E offences is 10 years imprisonment, the amount of money involved, the period of time of the offending, and motive. As to this last matter, there is no real argument but that the offending was carried out to fund a drug habit. As to the period of the offending, the earliest of the offences being sentenced occurred on 7 April 2018 and the latest on the 9 January 2019. This tends to mislead; the offender was in custody from 30 April 2018 to 9 October 2018, and then in a residential rehabilitation facility from 9 October to 29 October 2018 when he breached his parole conditions and left that facility. In effect there are two discreet periods of offending; 7 to 23 April 2018 and then 30 October 2018 to 9 January 2019. The particular variables of the s192E matters are therefore the amounts involved, and the general circumstances of the offending, which largely amounts to the identity and vulnerability of the victim.