Police v Dixon

Local Court of NSW|2006-11-28

CITATION: Police v Dixon [2007] NSWLC 21 JURISDICTION: Criminal PARTIES: Police Leonard James Dixon FILE NUMBER: PLACE OF HEARING: Moree Local Court DATE OF DECISION: 07/02/2007 MAGISTRATE: Magistrate G Lerve CATCHWORDS: Sentence - multiple offences of Break Enter and Steal - partial cumulation - whether vulnerable victims - jurisdictional limit in Local Court - drug addiction by offender - Fernando Principles - Matters on Form 1 - Statistics LEGISLATION CITED: Crimes Act, 1900 s. 112(1) Crimes Sentencing Procedure Act, 1999 ss 3A, 5 and 21A Bolter [2002] NSWCCA 435 De Simoni v The Queen (1981) 147 CLR 383 Doan (2000) 50 NSWLR Harris [2007] NSWCCA 130 Hayes [1984] 1 NSWLR 740 Jones unrep. NSWCCA 30.6.1994 CASES CITED: Martin [2007] NSWCCA 34 Nguyen [2007] NSWCCA 14 Ryan (2003) 141 A Crim R 403 Simpson & Newman (2004) A Crim R. 316 Stricke [2007] NSWCCA 179 Wallace [2007] NSWCCA 63 Watts [2007] NSWCCA 153 REPRESENTATION: Ms Owens Solicitor for the Office of the DPP Ms K White, Solicitor for and with offender ORDERS:

Remarks on Sentence

The offences contained with the papers on H54731302 occurred on or about 28 November 2006. The offender first appeared before the Court on 28 November 2006. Brief orders were made. The matter was before the court on a further five occasions. A plea of guilty was entered to the three mattes set out above on 17 April 2007, and the matter listed for sentence on 19 June 2007. Clearly enough, the plea was entered following plea negotiations between the parties. The offence within 29638240 was committed on 20 January 2007 to which a plea of guilty was entered at the earliest opportunity. I note that in respect of the earlier offences the offender was originally facing more serious charges. In the agreed facts in respect of both sets of matters the Crown concedes that the offender pleaded guilty at the first available opportunity, and accordingly, is entitled to the full 25% discount for the utilitarian value of the plea.

I am also asked to take into account three further offences (Possession of a Prohibited Substance; Goods in Custody and Possession of Housebreaking implements). I will take these matters on the Forms 1 into account when passing sentence in respect of the charge of Break Enter and Steal on H54731302.

I will initially deal with the matters of 28 November 2006. The matter proceeded by way of agreed facts, which I will for the sake of convenience insert in full within these remarks.

Sequence 8, i.e., the offence of break enter and steal occurred first in time. At about 10.45 pm on Monday 27 November 2007, Ronald Hardy, a care staff employee of the Namoi Valley Aged Care Complex had just escorted the last of the evening staff from the premises. As he returned he noticed a bike leaning against the main building. He moved it from its position.

A short time later he received a "VITAL" call from Marie Newton. Marie Newton is 88 years old. She had been living at the Namoi Valley Aged Care Complex for about 3 months. She was asleep in her room when she woke to find the offender in the room. The offender was about a metre from her at her dressing table. She was too scared to move and unable to reach her buzzer. She lay as still as she thought she would be hurt if she moved. The offender lest after about 5 minutes. Then Marie got up and pressed her buzzer. She noticed that her drawers had been ransacked and a pillowcase had been taken from her room. Ronald Hardy arrived, responding to the VITAL call. Marie told him, "There was a man in my room". He asked, "Did he take anything?" She said "no". He asked, "Did he touch anything?" She said "no". She later discovered that her purse had been taken.

I now turn to Sequence 7, the charge of Break and Enter with Intent. Ronald Hardy then left and made a patrol of the grounds. During the patrol he received another "VITAL" call from Mollie Gibson, another resident. Mollie Gibson is 88 years old. She woke up and saw a person standing at her dressing table. She said, "get out" a couple of times. The offender said to her something about, "that's a pace maker you have around your neck". She thought that this was a reference to the micro alert button she was wearing. She pushed that button help. She continued to tell the male to get out. Another aged care employee of the premises, Beverley McNellee, also received a call from Mrs. Gibson and entered her room, which startled the offender, who said "goodbye" to Mrs. Gibson and left. Ms. Gibson noticed that her drawers had been disturbed. Since the incident she has had difficulty sleeping.

Ronald Hardy confronted the offender in the grounds of the aged care complex. He said, "Can I help you". The offender replied, "Visiting, my mum knows that old lady. She was pressing her pace maker you should check her". The offender said, "Where is my bike?" Mr. Hardy pointed to the bike. The offender then accused Mr. Hardy of stealing his bag. Mr. Hardy told him there was no bag. The offender than ran back from where he came to the rear of Mrs. Gibson's room and collected a back pack, which appeared to have a light coloured pillow case hanging from the back of it. The offender then got on his bike and rode off.

A short time later a security officer, Shane Bradford, arrived and Mr. Hardy provided a description of the offender to him and to the police who arrived at a similar time.

The last offence in chronological order was the malicious damage. About 11.30pm on the same evening Rob Southwell, who lives at 39 Selina Street, Narrabri heard a noise outside. He turned the outside light on and saw the offender standing near the screen door. He opened the door and approached the offender, who had a whitish towel over his shoulder. Mr. Southwell looked in the offender's backpack and observed a screwdriver in it. The offender then left on a bicycle. Mr. Southwell then noticed that the offender had made a small cut to his fly screen door.

At about 11.55pm a security officer located the offender in Balonne Street, Narrabri. The police attended and saw the offender sitting in the gutter with a red mountain bike (the possession of the mountain bike is offence Number 1 on the Form 1 of 'Goods in Custody') and a blue backpack next to him. Constable O'Neill spoke to the offender, who claimed he had just picked up the bike from his aunty and was heading home from aunt's house. The offender was then searched. Police located a brown leather ladies purse in his front right shorts pocket and a silver ladies watch. In the backpack police located a pillowcase and a wooden handled screwdriver (the possession of the screwdriver is offence number 2 on the Form 1 of "Possess housebreaking implements". The purse was identified by Mrs. Newton as her property. The watch has not bee identified.

The agreed facts also record that "the offender made some admissions after his arrest and was charged".

A separate set of agreed facts was tendered in respect of the break enter and steal committed on 20 January 2007. On the evening of Saturday 19 January 2007 sometime before 8pm the offender broke into an unoccupied dwelling house situation at 55 Balonne Street, Narrabri through and unlocked rear door and looked through a number of drawers and cupboards looking for money. During the course of his search of the premises the offender found a safe. The offender placed the safe on a blanket, dragged it to the rear door of the premises, and placed it in a "wheelie bin". He then took several items of jewellery from the house before he returned to his home at 4/1 Eleanor Street, Narrabri with the "wheelie bin" containing the safe, which he placed in his garage. Over the next several days the offender used a hammer and a jemmy to eventually open the safe which contained a coin collection and personal papers.

On Thursday 25 January 2007 after receiving information about the safe and its location, police went to the offender's home and found the open safe still contained in the wheelie bin and recovered the personal papers. The offender was arrested shortly afterwards and taken to Narrabri Police Station. The offender took part in an electronically recorded interview where he made full admissions in relation to the offence. He said that he had taken a quantity of valium tablets on the day of the offence, and after having a had a fight with his de facto wife wanted to obtain money so that he could purchase some smokes and food for his children. He assisted police throughout the investigation of the matter and appeared to show remorse for his actions. He indicated that he was going to attempt to recover the items he had taken.

The break, enter and steal and the break enter with intent on H54731302, i.e. the offences of November 2006 were committed at an aged care facility, and accordingly, at a private residential dwelling. The matters proceeded by way of charges contrary to s. 112(1) and 113(1) of the Crimes Act 1900, and therefore I must take particular care that I do not take into account that the offender realised that it was likely that persons would be therein. The Crown submits that I would find for the purposes of sentence that the victims in the November offences were vulnerable victims within the meaning of that expression in s. 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999. Ms. White on behalf of the offender submitted that to do so would have the practical effect of breaching the principles enunciated by the High Court in De Simoni -v- The Queen (1981) 147 CLR 383. Ultimately, on reflection, it seems that the submissions by Ms. White on behalf of the offender are made good. However, the offences were committed at a private dwelling. I also accept that it would have been a harrowing and extremely distressing experience for the two elderly victims. I accept what the offender said to the probation officer, namely, that he thought that he was breaking into a "rich house" - the significance of this being that he was not aware that he was in fact breaking into an aged care facility.

Given that the November offences were committed at a private dwelling, late at night or in the very early hours of the morning, and that he offender remained within the premises with the occupiers, I assess these matters as being slightly over the half-way mark on the scale of seriousness for such offences. I assess the criminality in respect of the January offence being at or near the half way mark on the scale of seriousness. The premises were residential premises and the offence occurred at night.

The January offence was committed while the offender was on bail for the November offences. The commission of a further offence while on conditional liberty is a matter of major or significant aggravation - see for e.g. R -v- Wallace [2007] NSWCCA 63 and R -v- Jones unrep. NSWCCA 30.6.1994.

The maximum penalty for the offence of break enter and steal on indictment is fourteen years imprisonment. The maximum penalty on indictment for the offence of break enter with intent to steal is one of ten years imprisonment. The jurisdictional limit in this Court is one of two years imprisonment. That period of two years is a jurisdictional limit as opposed to the maximum penalty to be reserved for a "worst case" type matter. Grove J. (Spigelman CJ & Kirby J agreeing) in R -v- Doan [2000] NSWCCA 317 said at paragraph [35]: " The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted must be rejected. As must also be rejected the corollary that a sentence of two years imprisonment should be reserved for a 'worst case'".

The offences of break enter and steal, and break and enter with intent to steal from private dwellings are serious matters. Indeed, it is only of relatively recent times that the Local Court has had jurisdiction to deal to finality with these types of matters. The Court of Criminal Appeal has on several occasions emphasised the seriousness of the offences of break enter and steal. The effect of the offence of break enter and steal on the victims and the community at large were referred to by the Court of Criminal Appeal in the decision of R -v- Bolter [2002] NSWCCA 435. Sully J (Howie J. agreeing) cited with "complete and respectful agreement" observations made by the learned sentencing judge at first instance, namely (see par [6] - [7] of CCA judgment): "It has been said time and time again that the invasion of people's homes and the plundering of their property is a social evil form which the community looks for protection. Householders should be able to leave their homes confident that their belongings will be there upon their return. The trauma of entering a home to find that it has been broken into and property stolen is no light matter. Particularly where the victims are elderly…Added to this of course is the emotional distress at the loss of treasured items of jewellery…Of course the sentimental value far outweighs their monetary value. Even those who are not the immediate victims of burglaries nevertheless feel the effects in escalating insurance premiums by insurers for insurance of the risk of its occurrence".

I too, with unfeigned respect, add my "complete and respectful agreement" to the remarks on her Honour at first instance. Those remarks are particularly apposite in the November offences given the age of the victims.

More recently, the Court of Criminal Appeal in R -v- Harris [2007] NSWCCA 130 reviewed a number of the authorities relating to break enter and steal type offences. The Court in Harris certainly affirmed the decision of the CCA in R -v- Hayes [1984] 1 NSWLR 740 at 742. The offender in Hayes is certainly in a different category to the matter presently under consideration. Hayes pleaded guilty to 4 offences and had another 30 taken into account.

In Harris the Court (McClellan CJ at CL, Hulme & Hislop JJ said at [30]-[31]: "It is also to be observed that nowhere in Attorney-General's Application (No 1) under s26 of the Criminal Appeal Act, R v Ponfield and Ors was doubt cast on the appropriateness of most of the remarks the Court has quoted from the earlier cases. Indeed in R v Scott [1999] NSWCCA 434, one of four cases considered and in which judgement was delivered at that same time as the guideline judgment, Sully J, with whom the other judges agreed, quoted remarks of the sentencing judge in that case and observed that they were correct in principle. These remarks were:-

"The incidence of break, enter and steal throughout the State, but in particular on the Central Coast of New South Wales, is such as to cause grave disquiet in the community. In the court of the first trial, a fingerprint expert gave evidence to the effect that he attends some ten locations a day in the course of investigating burglaries. The burglar seems to act with impunity, such is the frequency of this crime, which is carried out with brazen contempt for the law and the rights of innocent householders. Right thinking members of the community are understandably angry and frustrated at the seeming immunity enjoyed by the burglar. Their dwellings are ransacked. Their goods spirited away where they will be inevitably received by some Cash Converter, loan office or pawn broker. The operators of such businesses deal with vast volumes of stolen goods on a daily basis. The fact that successive governments neglect to pass efficacious laws which might tend to hinder the daily conversion of stolen goods into money is of great comfort to the burglar and of no assistance whatsoever to the victim. It is a notorious fact that householders face huge premiums, as well as the vast expense of endeavouring to make their homes secure, against those who apparently consider it their right to break into households and take whatever goods suit their purposes. Clearly the community has the rightful expectation that judicial officers will act responsibly and impose meaningful penalties on the rare occasion when the burglar is apprehended and convicted. Other would-be burglars just might be deterred when it is learnt that the crime of break, enter and steal is regarded as being grossly serious and will attract serious punishment." Although in Attorney-General's Application (No 1) under s26 of the Criminal Appeal Act, R v Ponfield and Ors the Court declined the Crown's application to provide a guideline in quantitative terms, the Court indicated that a court should regard the seriousness of an offence contrary to s112 (1) as enhanced and reflect that enhancement in the quantum of sentence if any of a number of specified factors are present. Included among the factors mentioned and relevant to the situation of the Respondent here were:- (i) The offence is committed whilst the offender is at conditional liberty; (ii) The offender has a prior record, particularly of like offences; (iii) The multiplicity of offences (reflected either in the charges or matters taken into account on a Form 1 pursuant to s21 of the Criminal Law Procedure Act); (iv) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value."

Clearly enough the Court of Criminal Appeal has indicated that deterrent sentences need to be imposed on offenders who break enter and steal from private dwellings.

Generally, the offender's criminal history does not assist him. He has accumulated a significant criminal record. In 2002 he was sentenced to a total sentence of 4 years imprisonment, with a non-parole period of 2 years 8 months for an aggravated robbery offence. The offender had completed his parole at the time of the commission of the offences with which I am dealing, but only by a period of about 10 days or so. He has served periods of imprisonment for other dishonesty type offences.

The Report notes that the offender is one of 8 children. He was raised by his grandparents in Bourke until 10 years of age when he went to live with his mother. Apparently at age 11 he began to mix with an inappropriate peer group, which led him to conflict with the law. He spent two periods in juvenile custody.

He is married to a woman in Narrabri and he has fathered 5 children aged from 16 to 1 year of age. The relationship failed because of the offender's substance and alcohol abuse. The offender accepts and recognises that his continued substance abuse has been a major influence on his recidivism. He told the author of the report that he commenced using cannabis at 13, alcohol at 16 and heroin and cocaine at 27. He is now 35. It seems that the offender has not had any substantial assistance in relation to his substance abuse.

The offender completed year 10 and has mainly been employed in seasonal type rural work. At the time of his arrest he was in receipt of Newstart Allowance.

To his considerable credit the offender shows remorse over his behaviour. He has apparently demonstrated concern for his elderly victims. Further, he maintains that he is ashamed of entering the aged care facility. He was under the influence of substances at the time of the commission of the November offences.

The report notes that the offender had demonstrated a poor response to supervision prior to the latest period on parole. His response to the latest period of supervision has apparently been good. Regrettably, the report also notes that, "he does not seem to have gained insight into his entrenched alcohol and other drug issues that have been the contributing factor into his continued offending".

The offender is suitable for a medium level of supervision. He has been assessed as suitable for community service. In all of the circumstances, that is not a realistic sentencing option for the Court to consider.

The Court is indebted to Ms. White for her careful and comprehensive submissions on behalf of the offender. I strongly suspect that my summary of her submissions do not do them proper justice.

The offender is a 35 year old man of aboriginal descent. He made admissions in respect of some of the offences, and that he was compliant with the police. The plea of guilty was emphasised, as was the concession by the Crown that the pleas of guilty to the matters now before the court was entered at the first available opportunity.

Ms. White appropriately conceded that in all the circumstances the court had little alternative other than to impose full time custodial sentences. Her primary submission was that wholly concurrent sentences be imposed in respect of all sentences, but certainly there would be wholly concurrent sentences in respect of all of the November offences. In particular it was argued that all of the offences, including the offence committed in January 2007 were all part of the one episode of offending. It was further argued that if the court was of the opinion that there should be cumulation, then there should be only partial rather than total cumulation. For reasons upon which I will expand later in these remarks I find that I am unable to accede to the submission that the sentences for all of the offences should be wholly concurrent.

It was further submitted on behalf of the offender that there were no aggravating features within the meaning of that expression within s. 21A of the Crimes (Sentencing Procedure) Act 1999. Ultimately I am of the opinion that this submission is not completely made good. It is my opinion that if I were to find that the victims were vulnerable victims, I would be sentencing the offender in contravention of the principles in De Simoni -v- The Queen in that I would be dealing with the offender on the basis that he knew that persons were within the dwelling. There was no planning and the offences were not the least bit sophisticated.

However, the January offence was committed while the offender was on bail in respect of the earlier offences. According to the submissions by the Crown that at least one of the elderly victims continues to experience difficulties in sleeping. It was not specifically put to me that this amounts to emotional harm (see s. 21A(2)(g)). I decline make a finding that it does amount to emotional harm within the meaning of 21A(2)(g), however, it is my opinion, that it is certainly appropriate to proceed on the basis that finding a stranger within one's private dwelling would be an extremely upsetting and distressing experience.

Further it was submitted that at the time of all of the offences the offender was under the influence of alcohol and/or valium, and accordingly, was unable to appreciate his actions let alone the seriousness of them. Given the agreed facts, I am of the opinion that this submission too, is made good. As Ms. White submitted, the offender engaged the occupants of the aged care facility in conversation. That conversation was not of a threatening nature.

Ms. White argued that the principles enunciated by Wood J (as he then was) in R -v-Fernando apply. The offender is a man of aboriginal descent, who through no fault of his own endured a dysfunctional upbringing and background. Having considered the decision of the Court of Criminal Appeal in R -v- Simpson & Newman (2004) 145 A Crim R. 316 I am persuaded that the Fernando principles do apply to this offender.

It was submitted on behalf of the offender that he was using valium because of his addition to morphine type drugs. At the time of the commission of these offences the offender was struggling with his drug addiction. The contents of the Pre Sentence Report to the effect that the offender has been addicted to heroin since he was 27 years of age were emphasised. I have no difficulty accepting this submission. The facts of the various offences speak eloquently of desperation on the part of the offender. As Harrison J. observed in R -v- Watts [2007] NSWCCA 153 at [57]-[58]: "In my experience, narcotic addiction, and the tragic and devastating consequences for the addict, his family and the community, is not something that the addict chooses in the true sense of the word. As in the case of the present applicant, heroin addiction is demonstrably destructive of physical and mental health, social standing and acceptance, and financial security and stability. It puts at risk, and often destroys; the patience and forbearance of loved ones whose own lives are thrown into turmoil. But it does so most often as a response by the addict to painful and otherwise apparently inescapable circumstances. As his Honour accurately noted, these matters can rarely, if ever, excuse criminal behaviour and both first-time and repeat offenders should not misapprehend the seriousness with which the courts regard offences of this kind. Correspondingly, however, the courts are required quite properly to have regard to the often compelling personal circumstances of offenders in each individual case. In my opinion, the subjective factors operating in the present case are particularly compelling.

In the nature of things, courts are limited in the range of options available to them to deal with repeat offenders such as the applicant. There is no doubt that the applicant should have been sentenced to a period of imprisonment. Even if his Honour had had a significantly wider range of sentencing options available to him, it is not possible to see how the present applicant should not have been sentenced to some term of imprisonment. Notions of retribution, punishment and deterrence cannot be wholly discarded or disregarded even in the most deserving of cases. Correspondingly, rehabilitation is also a very important factor to be taken into account, particularly in the case of a young offender such as the applicant".

It was further submitted that the offender had successfully completed his period on parole following his release in respect of the aggravated robbery matter. Further, it was submitted, and I accept, that the offender served a non-parole period in excess of what was designated by the sentencing Judge in that he was actually released to parole on 28 November 2005. While it is so that the offender successfully completed his parole the fact remains that he committed the November offences within 10 days of that parole period concluding. Accordingly, I remain guarded about long-term prospects of rehabilitation. The offender is older than was the offender in Watts.

Ms. White argued that I would find special circumstances within the meaning of that expression in s. 44 of the Crimes (Sentencing Procedure) Act 1999. In particular it was argued that these "special circumstances" were the cumulative effect of the need for rehabilitation, particularly in respect of substance abuse, the need for intensive supervision, and to prevent the offender from becoming institutionalised. These submissions are made good, and I would add to those matters argued by Ms. White the fact that I am going to partially cumulate the sentence to be imposed in respect of the January 2007 offence.

I can only summarise the submissions. The Crown's submissions were helpful and comprehensive. As with Ms. White's submissions, I apprehend that my summary will not do the Crown's submissions justice. Initially, and appropriately the Crown argued that the offences, particularly the November 2006 offences are objectively very serious in that they involve breaking and entering into the homes of elderly citizens. The court was reminded by the Crown that these offences occurred at night, and that fact made them more serious. It was argued that the victims were vulnerable. I have already dealt with this submission.

Although I will not deal with the matter on the basis that the victims were vulnerable victims within the meaning of s. 21A of the Crimes (Sentencing Procedure) Act 1999, nevertheless (as I have earlier commented in these remarks) the fact that the offences were committed at night and at private dwellings make the matters more serious.

Further, it was put to the Court by the Crown that that at least one of the elderly victims has ongoing difficulties in sleeping at night. I am constrained to observe that so often offenders like the one I am now dealing with have this type of effect on their victims. The offenders give absolutely no consideration to the long-term effect that their criminal activities will have on what are completely innocent victims of their crimes. I have not the slightest difficulty in accepting that this experience would have been harrowing and extremely frightening and nerve-racking for the elderly victims concerned.

The Crown reminded the Court that the January offence was committed while the offender was on bail for the November offences, and accordingly, this is an aggravating factor. I have commented upon this earlier in these remarks. This submission is made good. The Crown also argued that the lengthy criminal history of the offender is an aggravating factor. It seems to me the more appropriate manner to deal with the criminal history is to simply that the criminal history of the offender does not entitle him to any leniency.

In respect of the January offence the Crown argued that it was a brash type of offence, and that it must have been clear to the offender that the safe had some value.

Finally, the Crown submitted that there should be at least partial cumulation of sentence. As part of this submission the Crown also argued that there is strong need for personal and general deterrence. I am of the opinion that these submissions are also made good.

For what they are worth, I annexe to these reasons the JIRS statistics for offences contrary to s. 112(2). I observe that the total non-parole period I am imposing on this offender is towards the upper end of the range of sentences imposed in the Local Court. However, it should be noted that I am dealing with multiple offences, and a further offence of an identical kind committed while on conditional liberty. I am also taking into account three into account on a Form 1 Document in respect of the November offences. I note however, that the sample of cases is substantial. In respect of the use of statistics, Grove J. (Shaw J. agreeing) in the decision of R -v- Ryan (2003) 141 A Crim R 403 said at p. 411: "The next issue relates to contention concerning established patterns of sentencing. Statistics collated by the Judicial Commission and sample judgments were invited to be surveyed. In approaching this issue it must be borne in mind that bald statistics are of limited use, however they may provide indications of general sentencing trends and standards, assist in assuring consistency and be useful in determining whether a sentence in manifestly excessive or manifestly inadequate: R -v- Bloomfield (1998) 44 NSWLR 734; 101 A Crim R 404".

Giles JA in the decision of Watts [2007] NSWCCA 153 said: In taking into account the offences on a Form 1 the focus must be on sentencing for the primary offence. The penalty otherwise appropriate for the primary offence is increased, in particular by giving greater weight to the need for personal deterrence indicated by the commission of the other offences and the community's entitlement to retribution for the other offences. The additional penalty need not be small, and sometimes will be substantial, but the focus on the primary offence and the manner in which the other offences are to be taken into account, as explained in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] 56 NSWLR 146, constrain the increase in penalty.

Clearly, there will need to be some additional penalty imposed in respect of those matters on the Form 1 document. In this regard, I note that one of the offences I am asked to take into account is the possession of housebreaking implements.

Clearly these issues must be considered. The Court of Criminal Appeal recently dealt with the issues of totality and cumulation of sentence in the decision of R -v- Nguyen [2007] NSWCCA 14. At [12] Howie J. (Sully and Price JJ agreeing) said: "It seems obvious from a number of matters that have been before this Court recently, that there is abroad an insufficient understanding of the principles of totality and of the relevant factors to be taken into account when determining whether to order than sentences be served concurrently or made, at least partially cumulative. There is no rule that sentences committed on the same day or in the same criminal enterprise should be served concurrently. The issue has been considered in a number of decisions of this Court that should make it plain that the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other offence; see generally R -v- MMK [2006] NSWCCA 272. The position was explained in Cahyadi -v- R [2007] NSWCCA 1 as follows: "…there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is no regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both".

The Court of Criminal Appeal even more recently (25 June 2007) dealt with the issue of cumulation of sentence in R -v- Stricke [2007] NSWCCA 179. Hislop J (Simpson & Howie JJ agreeing) said at [36]: "This Court has interpreted Pearce as prohibiting the practice of increasing a sentence for one offence merely to reflect the totality of the criminality disclosed by all of the offences for which sentence was being passed - R -v- Knight [2004] NSWCCA 145.

It seems to me that nothing contained within the Court's decision in Strike modifies in any way the earlier decision of Nguyen.

In all of the circumstances, taking into account the authorities, I am firmly of the opinion that there should be some partial cumulation of the sentences in these matters. The January offence was committed almost two months after the November offences, and accordingly, in my view, is not part of the same episode of offending. Further, I am of the opinion that imposing wholly concurrent sentences does not give adequately reflect the criminality involved in the commission of the offences with which I am dealing.

I am obliged to take into account the provisions of sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. I am also obliged to follow the principles enunciated by the High Court in Pearce (1998) 194 610 esp. at p. 624 in that I am obliged to impose an appropriate sentence in respect of each of the matters and thereafter consider the issues of cumulation and totality.

Initially, I assess the total criminality in the matters with which I am dealing deserving of a total sentence of something in the order of two and one half years. This is the significance of the decision of R -v- Doan. The discounts are applied to the initial assessment rather than from the jurisdictional limit of two years. I have arrived at my final orders after applying the discounts for the pleas of guilty, taking into account the issues of totality and cumulation and the other matters referred to within these remarks including the finding of special circumstances. In arriving at the sentences that I have for these matters I have had regard to the decision of the Court of Criminal Appeal in R -v- Martin [2007] NSWCCA 34 in "carrying through" the finding of special circumstances where cumulative sentences are imposed.

The offender served two weeks in custody bail refused prior to the sentence proceedings before me on 19 June 2007, and he has been in custody since that date. He will need to be given credit for this period in custody.

In respect of each of the mattes to which the offender has pleaded guilty he is convicted. Consequent upon those convictions, I impose the following sentences:

Sequence 6: Fixed Term of one month imprisonment to date from 5 June 2007 and to expire on 4 July 2007.

Sequence 7: Fixed Term of ten months imprisonment to date from 5 June 2007 and to expire on 4 April 2008.

Sequence 8: Taking into account the matters on the Form 1 Document, Sentenced to a Fixed Term of 12 months to date from 5 June 2007 and to expire on 4 June 2008.

I have sentenced the offender to fixed terms in respect of sequences 7 and 8 because I am about to impose a partially cumulative sentence in respect of the offence on H29638240 which sentence will consist of a non-parole period and a balance of term.

H29638240 Sequence 1: Non Parole Period of 12 months to date from 5 September 2007 and to expire on 4 September 2008. Thereafter, I specify a balance of term of 7 months to commence on 5 September 2008 and to expire on 4 April 2009.

Gordon Lerve, Magistrate, Moree Local Court, 2 July 2007.

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Judgment (66 paragraphs)

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Cases Cited (14)