R v ASTILL

1. The offender was committed for sentence from the Cootamundra Local Court on 18 December 2023 and the pleas of guilty entered at that time were adhered to at the sentence hearing on 26 April 2024. Accordingly, the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.
2. In the order in which the charges appear in the table at [1] above, the maximum penalties for the nine substantive matters are: Take and Drive Motor Vehicle without Consent 5 years imprisonment Drive Manner Dangerous in a Police Pursuit 3 years imprisonment Damage to Property by Fire 10 years imprisonment Break Enter and Steal (s 112(1)(a)) 14 years imprisonment Break Enter and Steal 14 years imprisonment Break Enter and Damage Property 14 years imprisonment Aggravated Break Enter and Commit Serious Indictable Offence 20 years imprisonment (SNPP 5 years) Destroy Property by Fire 10 years imprisonment Damage Property by Fire 10 years imprisonment

1. Going to the matters attaching to the various forms 1 in passing sentence I will need to apply the principles enunciated by the Court of Criminal Appeal in The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002, otherwise known as the Guideline Judgment on Form 1 matters reported (2002) 56 A Crim R 146. I observe that given the number of matters attaching to the Forms 1 and noting the seriousness of some of those matters, the matters attaching to the various Forms 1 will have some meaningful impact on the ultimate sentence imposed.

Facts

1. The facts are before the Court by way of a set of agreed facts but there are three sets of facts. I will deal with the matters as best I can in the order in which they appear in the table at [1] of these reasons. Given the volume of matters I will deal with the seriousness of the matters at the conclusion of the facts relating to that matter.

H88302524 sequence 1 - Take and Drive Motor Vehicle without Consent of Owner

1. On 30 January 2022 Kim and Gary Lynch were doing yard work at the back of their clothing shop in Hoskins Street Temora. At about 1pm Kim Lynch drove her grey Holden Commodore vehicle registered GL 373 to the lane behind the store in order to take away some rubbish. She stopped the vehicle behind the shop and as she was intending to go through the gate to get more rubbish she left keys in the ignition. Seconds later, after going through the gate, she heard the Commodore vehicle start and take off at very high speed. The matter was reported to police.
2. Meanwhile, Gina Cain who had been in an "on and off" relationship with the offender for about three years, received a call from him telling her to meet him at the cemetery, which is about 200 metres from her residence. The offender pulled up in the Commodore vehicle and when asked where it had come from, told Ms Cain that he had borrowed it. The offender took Cain for a drive to the Back Mimosa Road, which is a dirt road out of the township of Temora.
3. Ms Cain recalls that the offender drove in a "crazy" fashion, doing burnouts and "circle work". During the course of the driving a rear tyre came off the rim and the offender drove the vehicle back along Back Mimosa Road towards Temora. The offender turned onto Mansfield Road and after they passed a new housing estate the vehicle became too difficult to drive. The offender pulled over and together with Ms Cain walked back into Temora where he spent a night at her residence.
4. A passerby, a Mr Coleman Aaron, saw the offender and Ms Cain walking towards the township. He also saw the vehicle, recognised the vehicle and contacted the owners to tell them where it was.
5. The offending was opportunistic and involved no planning whatsoever. However, while the offender was driving the vehicle it was driven in an erratic manner and damage was occasioned to the vehicle. I am not informed as to the extent of the damage. In all the circumstances this matter is in my view slightly more serious than the typical example of Take and Drive Motor Vehicle Without the Consent of Owner, given the manner of the driving and the damage. If further precision is required the matter is within the mid-range of seriousness.

H89099242 Sequence 2: Drive Manner Dangerous in a Police Pursuit

1. Attaching to the form one in respect of sequence two are two charges namely Drive Conveyance Without Consent of the Owner and Dishonestly Obtain Property By Deception. The matter of obtaining property by deception relates to essentially stealing diesel fuel to the value of $99. The charge of Take and Drive Conveyance Without the Consent of the Owner relates to the vehicle involved in the police pursuit.
2. On 10 May 2024, I raised the issue with the parties that the matter attaching to the Form 1 document that attaches to the police pursuit matter (sequence 2) was more serious in that it carried a greater maximum penalty than the substantive count. However, I understood both parties to submit that whilst that was correct, the police pursuit matter is objectively more serious than the matter attaching to the Form 1 document. Independently, I agree with those submissions.
3. The vehicle was a Toyota Hilux utility owned by Grain Corp. Part of the company fleet system provides access to GPS coordinates of the vehicle together with distances travelled, top speed and average speed travelled each trip. An employee of Grain Corp notified his manager of the vehicle had been stolen. The vehicle was removed from the Grain Corp facility on Goldfields Way, Junee Reefs. Police also obtained footage from a co-offender's mobile phone showing the offender driving the vehicle with the co-accused in the front passenger seat and the offender is recorded as indicating significant speed at which the vehicle was travelling.
4. Going specifically to sequence 2, at 3:37pm on 17 April 2022 New South Wales Highway Patrol were notified that the vehicle was on the Back Mimosa Road, south of the town of Temora being driven at high speeds. The "trip break down" indicates the vehicle reached 169 km/h at this time. Police waited for the vehicle at the intersection of Mansfield Road and Back Mimosa Road with a view to intercepting the vehicle.
5. The vehicle was seen to be driving at a speed estimated to be well in excess of the 100 km/h sign-posted speed limit of the road. Police activated all warning devices on the marked high patrol vehicle and travelled behind the vehicle. The vehicle did not stop and turned onto Goldfields Way, travelling towards the township of Temora. A police pursuit was initiated on the vehicle. It continued travelling at a speed estimated to be no less than 110 km/h as it entered the township where the posted speed limit is 50 km/h. The vehicle made a number of turns without slowing and at no stage stopped as directed by police. Due to safety concerns the pursuit was terminated. The facts recite that the mobile telephone footage obtained from the co-offender is relied upon to establish this offender was the driver. Further, the GPS information from the vehicle does not show that the vehicle slowed or stopped to allow the offender and the co-offender to switch places.
6. The relevant Court Attendance Notice (CAN) sets out this offence occurred between 3:37pm and 3:39pm indicating a period of only two minutes. However, the speed of the vehicle was over twice the sign-posted limit in the township and was significantly in excess of the sign-posted limit before entering the township. Despite the limited duration of the pursuit but noting that part of the pursuit occurred within a built-up area, the matter is within my view at the lower end of the mid-range of seriousness.
7. At 4:09pm on 17 April 2022 the vehicle stopped at a service station in Barmedman, a small community between Temora and West Wyalong. The vehicle was stopped with the key, at which time the vehicle was remotely disabled by Grain Corp. Whilst this was occurring, $99 worth of diesel fuel had been put into the vehicle. Either this offender or the co-offender told an employee that he had forgotten his wallet. The offender and the co-offender ran from the service station when they could not restart the vehicle.

Sequence 13: Damage Property by Fire

1. The substantive matter is Damage Property by Fire, which involved setting fire to Mitsubishi Pajero belonging to Kimberly Bownds. Attaching to this matter is a Form 1 document which details 9 matters, namely: Sequence 4: Drive Conveyance without consent of Owner (namely, the Pajero motor vehicle) Sequence 5: Dishonestly obtain property by deception(50.61 litres of fuel) Sequence 6: Dishonestly obtain property by deception (30.16 litres of fuel) Sequence 7: Stealing vehicle - Camper Trailer (s 154F Crimes Act) Sequence 8: Dishonestly obtain property by deception ((40.94 litres of fuel) Sequence 9: Larceny (shop lifting) Sequence 10: Take and Drive Conveyance without Consent of owner (Great Wall Utility belonging to Luke Falls, Lorne Street, Lake Cargelligo) Sequence 12: Damage to Property by Fire (damage to Foodworks supermarket at Lake Cargelligo) Sequence 14: Dishonestly obtain property by deception (61.06 litres of fuel)
2. The facts deal with many of the Form 1 matters before getting to the substantive matter, i.e. sequence 13 which is a charge of Damage to Property by Fire.
3. At about 3.30pm on 17 April 2022, Kimberly Bownds of Barmedman returned to her home with her children and her partner, Ron Tolley. Ms Bownds and the children were dropped off and Mr Tolley drove the 1999 white Mitsubishi Pajero motor vehicle to his address, also in Barmedman, to unhitch a boat the vehicle had been towing.
4. This offender and the co-offender are both known to Ms Bownds and Mr Tolley. Sometime between 4.22pm and 5.04pm the offender and co-offender took the Pajero vehicle from Mr Tolley's address without permission. At about 7pm, Mr Tolley contracted Ms Bownds to tell her that the police were on their way to speak to her as the Pajero vehicle had been involved in a number of offences. Ms Bownds sent the offender a message on Facebook saying, "If my car gets wrecked Josh" to which the offender replied, "I'm so sorry, its not, I'm a fuckwit". DNA with a profile matching that of the offender was found on the steering wheel of the Pajero when it was recovered (sequence 4, Form 1).
5. At about 5.04pm on 17 April 2022 the offender drove the Pajero to the Shell service station at Wyalong exited the vehicle and put 50.61 litres of fuel into the vehicle. No effort was made to pay for the fuel. The vehicle left the service station quickly with the wheels losing traction (sequence 5, Form 1).
6. At about 5.30pm on 17 April 2022 the offender drove the Pajero to the Shell Service Station at West Wyalong. 30.16 litres of fuel was placed in the vehicle with no effort to pay (sequence 6, Form 1).
7. Between about 5.30pm and 7pm on 17 April 2022 the offender and co-offender went to the property "Nargoondy" owned by Christian Tojel, where the offender had been employed for a short time in December 2021. The offender and co-offender connected a camper trailer stored on the premises to the Pajero and left the property. At 6.59pm the Pajero with the trailer attached was captured on CCTV at the Mobile Service Station at Lake Cargelligo. At that service station 40.94 litres of fuel was placed in the vehicle with no effort being made to pay. The offender also took a packet of chips and a 3 litre bottle of orange juice without paying. The offender and co-offender left the service station. (sequences 7, 8 & 9 Form 1).
8. On 17 April 2022 Luke Fall parked his Great Wall utility on his premises at Lake Cargelligo and was unsure as to whether he left the keys in the utility. He recalls seeing the utility at 9pm on 17 April 2022 but found it missing when he got up at about 7am the following day (18 April 2022). The utility was subsequently found in the State Forest off Schlukes Lane, Reefton. A DNA profile matching the offender was found on a shoe in the vehicle and on a plastic mouthpiece of an interlock device fitted to the utility. Luke Fall does not know either the offender or the co-offender (Sequence 10 - Take and Drive Motor vehicle).
9. At 1.19am the offender using a pallet climbed on the roof of the Foodworks supermarket at Lake Cargelligo. He removed a vent on the roof and pushed a metal pole through the insulation in the roof which caused the ceiling in the office of the supermarket to fall to the floor. The resultant damage was $5,000 with interim repair work costing $1500 (sequence 12). The offender put his feet into the vent and tried to gain access to the supermarket but was unable to do so. The damage was found by an employee the following morning. The incident was captured on CCTV.
10. The facts then deal with sequence 13, which is one of the nine substantive matters for which the offender appears for sentence. A download of the co-offender's mobile phone revealed a photograph apparently taken by the co-offender showing the offender and an unknown female seated in the Great Wall utility and in front of that utility it can be seen that the White Pajero belonging to Ms Bownds is on fire in the background. That photograph is time-stamped 2.25am 18 April 2022. The burnt out Pajero was found at 9am on 18 April on Yelkin Road, Lake Cargelligo.
11. It seems that the vehicle was totally destroyed. The offending involved wanton vandalism in the burning of vehicle that the offender had previously taken without the consent of the owner. I am not informed on the value of the vehicle. In all of these circumstances, noting in particular I am not informed of the value of the vehicle, the matter is below mid-range but not significantly so.

Sequence 18: Break Enter and Steal

1. Attaching to this matter is a Form 1 document containing 6 sequences, namely: Sequence 15: Drive Conveyance Without the Consent of the Owner Sequence 16: Dishonestly obtain property by deception Sequence 17: Dishonestly obtain property by deception Sequence 19: Dishonestly Obtain Property by deception Sequence 20: Drive Manner Dangerous in a Police Pursuit Sequence 21: Dishonestly obtain property by deception
2. Again, the facts go to a number of the matters attaching to the Form 1 document before the facts go to the substantive matter. At about 6am on 18 April 2022 Ms Kimberly Bownds was asleep with her partner at her residence at Barmedman. Her partner's Ford Territory sedan was parked at the premises. Ms Bownds heard a vehicle on her gravel driveway before car doors closing and cars being driven from the premises. Ron (Ms Bownds' partner) got up and noticed that his Ford Territory had been taken. His car keys were on the same key ring as the keys to the Pajero previously taken. (Sequence 15 - Take and Drive Motor vehicle)
3. At about 10 am on 19 April the offender drove the Ford Territory to the Shell Service Station at West Wyalong and put 64.99 litres of fuel in the vehicle before driving away without paying (Sequence 16 - Obtain property by deception).
4. At 3.24pm on Monday 18 April 2022 the offender drove the Territory to the Shell Service Station at Lake Cargelligo. The co-offender put 68.52 litres of fuel into the vehicle. The offender and co-offender drove away without paying for the fuel (Sequence 17 - Obtain property by deception).
5. The substantive matter, sequence 18, is a charge of Break Enter and Steal, contrary to s 112(1)(a) of the Crimes Act. At some time before 6.20 am on 18 April 2022, a friend of the owner of the Central Hotel, Ungarie drove past and saw the alarm flashing. She stopped, went to the hotel, pushed the door open and saw that there was a large hole in the wooden sliding door that goes through to the bar. She contacted the owner who attended the hotel and called police.
6. Coins had been emptied from the till behind the bar and money had been taken. Damage to the value of $400 was done to the under bar fridge and $1500 of damage was occasioned to the door. The offender's fingerprints were found on a number of items including a piece of the broken door that was on the floor. The owner of the hotel does not know the offender.
7. The offending was committed in commercial premises at a time when it could not reasonably have been expected that persons would be there. Damage was occasioned to the property, which would have caused significant disruption and inconvenience to the proprietor of the business. The damage to the property is again little other than wanton vandalism. I am told of the value of the damage but not the value of the property taken. In these circumstances the matter is below mid-range, but not significantly so.
8. At 6.34pm on 18 April 2022 the offender drove the Territory to the BP service station at West Wyalong with the co-offender in the passenger's seat. At the service station the co-offender alighted from the vehicle and put 61.12 litres of fuel into the vehicle. The offender also alighted from the vehicle and purchased cigarettes and hot food. They drove away from the service station without paying for the fuel (sequence 19 - dishonestly obtain property by deception).
9. At about 8pm that same day (18 April 2022) the Highway Patrol were on Milvale Road near Temora when the Territory was sighted. Knowing that the vehicle had been taken without the consent of the owner, police activated all warning lights and sirens in an attempt to stop the vehicle. A police pursuit was commenced. The Territory reached speeds of up to 180 km/h in a 100 km/posted area. The Territory tuned on to a number of roads in an apparent attempt to "lose" the police. After each turn the vehicle accelerated to speeds up to 150 and 175 km/h. The pursuit was terminated due to the danger to other road users. The facts recite that police are of the view that the offender was the driver (Sequence 20 - Drive Manner Dangerous in a Police Pursuit).
10. The following day, i.e. 19 April 2022, the offender drove the Territory to the Shell service station in Temora and remained in the vehicle while the co-offender put 59.3 litres of petrol in the vehicle. They drove away without paying for the fuel (sequence 21 - Dishonestly obtain property by deception).
11. The Territory vehicle was later located at the residence of the offender's parents in Temora. A DNA profile consistent with that of the offender was found within the vehicle. The facts are silent as to where in the vehicle that DNA material was found.

Sequence 26: Break Enter and Steal

1. Again, the facts go to several of the form 1 matters before going to the substantive matter. The Form 1 matters attaching to Sequence 26 are: Sequence 22: Drive Conveyance without consent of owner Sequence 23: Drive Conveyance without consent of owner Sequence 24: Dishonestly obtain property by deception Sequence 25: Larceny (shoplifting) Sequence 27: Damage to property Sequence 28: Drive Conveyance without consent of owner Sequence 30: Larceny Motor vehicle (s 154F Crimes Act)
2. Michael Wynd of Temora owned a 2014 Ford Ranger registered CQT46U. At about 4.15 pm on 20 April 2022 after having arrived home from work he parked the vehicle outside his premises with the engine running and the keys in the ignition as he took his bins inside the yard and placed them beside the house. As he was walking back to the vehicle he heard the tyres screeching and saw that the vehicle was gone. Shortly after this the vehicle was driven through a car wash bay at a service station and the offender was identified as the driver by CCTV (Sequence 22 - Take and Drive Conveyance without consent of owner).
3. On 21 April 2022 police obtained information that the offender was with a known female associate travelling from Coolac to Cootamundra. Police stopped the vehicle the offender was driving, at which time the offender ran from the vehicle evading police. He ran to a property on Muttama Road and then took and drove away in a white Ford utility vehicle registered CL73MX (Sequence 23 - Take and Drive Conveyance Without consent).
4. The offender then drove to the Caltex Service Station in Cootamundra and filled the vehicle with 54.59 litres of fuel. The offender walked into the shop portion of the service station, picked up a litre bottle of oil and took it to the counter. After the attendant scanned the oil the offender left without paying. The offender drove off without paying for the petrol (Sequences 24 and 25 - Dishonestly obtain property by deception, larceny (shoplifting).
5. The facts then go to the substantive matter, sequence 26, which is a charge of Break Enter and Steal. Between 10 am and 2.20pm on 21 April 2022 the offender drove the Ford utility to the property "Garrawilla" at Grenfell, which is owned by Gregory and Christine Ferguson. They were not at home at the relevant time. The offender broke into the premises by opening a closed but unlocked door. Once inside he ransacked the premises removing cash, jewellery, clothing and headphones. He consumed cans of soft drink from the fridge while in the residence and a further can of drink on the driveway. He then went to a machinery shed and loaded into the Ford Utility: 2 Stihl chainsaws; Backpack black "Think Tank"; 2 Makita cordless drills; 1 Makita cordless angle grinder; 1 Makita cordless blower; Batteries and cases for the Makita power tools; 1 XR 400 Honda motor cycle; 1 Aria XD4 motor cycle helmet and Engle car fridge with cover.
6. The entry was to residential premises during daylight hours. The property was a rural property and in the context of the area of New South Wales relatively isolated. While it is apparent that substantial property was taken I am not informed of the value of the property. However, given the amount of the property and the description including a motor cycle and a number of power tools clearly there would have been some real value to the property. I infer from what is contained a little later in the facts (the utility broke down and the offender rode away on the motor cycle) that the property was recovered. The matter is within the mid-range for a break enter and steal offence.
7. The offender then opened the roller door on the detached garage and used the motor cycle to ram the gun safe that was within the garage. Substantial damage was done to the safe and internal walls of the garage however the offender was unable to open the gun safe (Sequence 27 - Damage to property).
8. The facts recite that a DNA profile consistent with the offender was found at various locations around the property including within the residence, shed and garage.
9. After loading the items stolen into the utility the offender drove away. However, the utility broke down not far from the driveway to the property. The offender left the utility and rode away on the motorcycle. It too broke down not far from the utility (Sequence 28 - Drive conveyance without consent of owner).
10. The final matter attaching to the Form 1 to Sequence 26 is sequence 30 a charge of Steal Motor Vehicle. Luke Nealon lives near the property Garrawilla. He saw the red Honda motor cycle being ridden and presumed it was being used by an employee of the Fergusons. Luke also saw the broken down white Ford utility. He spoke to his father who advised that the utility was stolen. He then had concerns about his own vehicle, a Toyota Landcruiser which had been left at his home with the keys in the ignition. He returned to his home to find the Landcruiser had been taken.

Sequence 34: Break Enter and Damage Property

1. There are four matters attaching to the Form 1 in respect of sequence 34, namely: Sequence 31: Damage to property Sequence 32: Dishonestly obtain property by deception Sequence 35: Steal Motor Vehicle (s 154 F Crimes Act) Sequence 36: Larceny
2. Sequences 31 and 32 are a continuation of the criminality from the previous series of offences. When leaving the property the offender caused significant damage to the front yard of the homestead, damaging taps and gardens as well as destroying fences (sequence 31 - damage to property). He then drove the Landcruiser to the Caltex/Woolworths service station at Forbes where he put 77.65 litres of fuel into the vehicle and drove off without paying (sequence 32 - dishonestly obtain property by deception).
3. The facts then go to the substantive matter. Between 7.30 am and 2.55pm on 22 April the offender drove the Landcruiser to the property of Michael Hynes at Gunning Gap. Mr Hynes was working elsewhere at the time and was absent from his property. Mr Hynes and the offender knew each other but the offender had not been lawfully on the property for about 12 months. At the property the offender cut open the padlocked door of a shed near the main house and while in the shed used a power tool to attempt to open a gun safe. While the exterior of the safe was damaged the offender was unable to access the eight registered firearms within the safe.
4. The offender went to the property in daylight hours in circumstances where he was previously acquainted with the owner. The damage was to a gun safe which he was not able to open. Clearly enough the offender intended, if he could, to steal those guns. The charge however is break and enter and damage property. The matter is below mid-range.
5. The offender then drove the Landcruiser to a dam about 200 metres from the main residence on the property. Using a mobile phone charger cord the offender tied the accelerator down. The Landcruiser went into the dam, became completely submerged and was a "write off". The offender went to a shed and took a wheel off another vehicle (sequence 36 - larceny). He then drove off in a red Commodore Sedan registered EGB22P that had been inside the garage. (Sequence 35 - steal motor vehicle). The offender drove this vehicle for some time before he was seen by police driving in a manner dangerous to the public.
6. The facts recite that a DNA profile matching the offender was found in a shoe found in the premises.

Sequence 1 - Aggravated Break Enter and Commit Serious Indictable Offence (Intimidation)

Sequence 7 - Damage Property by Fire

1. This is the most serious matter of the numerous matters for which the offender appears for sentence. There are four matters attaching to a Form 1 namely: Sequence 9: Steal Motor Vehicle (s 154F Crimes Act) Sequence 19: Steal Motor Vehicle (s 154F Crimes Act) Sequence 22: Larceny (clothing) Sequence 23: Unlawfully Take Motor Vehicle with person in the vehicle (s. 154C(1)(b) Crimes Act)
2. On the evening of 14 April 2022 Jody Bradley went to her stepbrother's home at Temora. This property and the neighbouring property are semi detached houses and share a wall. Both premises are owned by the Department of Housing. Jody Bradley attended her stepbrother's unit with his permission to watch television. Her stepbrother (Raymond) later went out with a friend. She locked the front door and the rest of the premises were secured after her step brother left the premises.
3. At about 9pm the offender went to the premises and outside began yelling for Raymond to come outside and give him $50 that he owed him. Jody made no noise or response to the offender. The yelling and shouting was interspersed by loud banging noises which Jody believed to be the offender hitting the side of the unit as well as the electricity box and the solar power control box.
4. The offender "bashed" open the front door and entered the premises carrying a full sized axe in his hands. He walked towards Jody and demanded that she call Raymond and tell him that he needs to return to the unit with the $50 he owed the offender or he would kill her. The offender further instructed Jody to tell Raymond that he had 10 minutes to return to the unit. The offender held the blade of the axe to Jody's face while repeating his demands. Unsurprisingly, Jody was in fear of her physical safety due to the actions of the offender and the threats that he made.
5. The offender moved away from Jody and began swinging the axe around. Jody realised that the axe was not one owned by her stepbrother. The offender began pacing and again demanded that Jody contact Raymond. When she did not do so the offender became more aggressive and swung the axe at the television twice.
6. As the offender was striking the television with the axe Jody ran to the neighbouring property, where she was let in by the occupant. She telephoned triple 0. The offender meanwhile had come outside and continued to yell for Raymond. As Jody was on the phone to the triple 0 operator the offender yelled, "Get your fucking brother here or I will burn the fucking house down".
7. An explosion was then heard and the offender ran from the unit. Jody and the neighbouring occupant walked out and saw that Raymond's house was well alight. Police and the Fire Brigade attended and attempted to extinguish the blaze.
8. The premises at were destroyed by the blaze and the adjoining premises were significantly damaged to the point where it is no longer fit for habitation. Again I am not informed of the value of the damage. Be that as it may, given that one semi-detached house was destroyed and the other semi-detached house was significantly damaged the total of the damage is some hundreds of thousands of dollars.
9. So far as the offence contrary to s 112(2) is concerned the premises were residential premises. The aggravation pleaded is that the offender was armed but he was also aware that a person was within the building. The breaking into the premises involved damage to the door. The weapon with which the offender was armed, namely the axe is a substantial weapon. The serious indictable offence is Intimidation, which is at the cusp of being a serious indictable offence. However, it was an extremely serious example of intimidation noting the conduct of the offender and the period of time over which it occurred. I note the observations of Adams J in Hunter v R [2011] NSWCCA 141 at [52] as to what would constitute a mid-range offence of a breach of s 112(2) of the Crimes Act. However, in all the circumstances I am of the view that the offending presently under consideration is well within the mid-range of seriousness.
10. So far as sequence 6 is concerned that is a particularly serious example of destroy property by fire, noting that it involved the destruction of a dwelling. Given the explosion, there is an irresistible inference that the lighting of the fire was a deliberate act. I am fortified in this by the threat made by the offender. The matter is at the upper end of the mid-range for an offence of Destroy Property by Fire.
11. In respect of sequence 7 the dwelling was not destroyed but was significantly damaged to the point where is uninhabitable. That too is a very serious example of Damage to Property by fire and is mid-range.
12. The facts then deal with the four matters attaching to the Form 1 that attaches to sequence 1, namely: Sequence 9: Steal Motor Vehicle (s 154F Crimes Act) Sequence 19: Steal Motor Vehicle (s 154F Crimes Act) Sequence 22: Larceny (pushbike and clothing) Sequence 23: Unlawfully Take Motor Vehicle with Person in Vehicle (s 154C(1)(b) Crimes Act)
13. While police were at the scene of the fire the offender was seen by police riding a motor cycle away from the fire. The motorcycle had been stolen from an address in Temora. The owner of the motor cycle showed police from where the motorcycle had been stolen, namely strapped to a trailer under the carport. Tools had been used to remove the lock and straps from the motor cycle (Sequence 9 Larceny of a Motor Vehicle).
14. The offender was disqualified from driving and accordingly in riding the motorcycle he committed the offence of Drive While Disqualified (Sequence 10, s 166 Certificate).
15. On 22 April 2022 the offender was seen driving a red Holden Commodore sedan previously stolen from Michael Hayes (sequence 35). The vehicle was seen to be travelling at approximately 140 km/h as it left the township of Temora. A police pursuit was not initiated because of the speed at which the vehicle was travelling and issues of public safety. The vehicle continued at speeds of no less than 130 km/h overtaking a number of other vehicles. The offender lost control of the vehicle at a roundabout, regained control and travelled in the incorrect lane of Victoria Street for some time. The offender exited the vehicle while it was still in motion wearing pink shorts and white singlet. The taking of the vehicle relates to sequence 19.
16. The offender was disqualified and accordingly again committed the offence of Drive While Disqualified, sequence 18 attaching to a s 166 Certificate. There is no separate charge relating to the dangerous manner of driving. In those circumstances the Drive While Disqualified is a particularly serious example of that offence.
17. Police from other centres were asked to attend Temora to assist in locating the offender. At about 4pm the offender was seen to exit the rear yard of an address in De Boos Street, Temora riding a pushbike, wearing a white helmet, "hi-viz" shirt and khaki pants, all of which had been taken from the yard from which the offender exited (Sequence 117, larceny).
18. The offender rode the pushbike along Hosking Street, Temora, which is the main street of the town. He dropped the pushbike and ran towards a Mitsubishi Triton utility being driven by Raymond Waters, who had slowed down due to the police presence. The offender ran to the passenger side door of the vehicle and attempted to gain access on a number of occasions but was unsuccessful as the door was locked. Mr Waters was able to accelerate away from the offender.
19. The offender was finally taken to ground by a police officer and taken to the Temora Police Station. The offender, as was his right declined to be interviewed.
20. I observe that between 13 April and 22 April 2022 the offender was responsible for what can only be described as a crime spree. That spree involved inter alia, breaking into a house with an axe and threatening the occupant with the axe, the destruction by fire of a dwelling, substantial damage to another dwelling, several homes being broken into and the wanton destruction of people's personal property.
21. In respect of the charges of Destroy/Damage Property by Fire relating to the adjoining dwellings at Temora there is a real issue of general deterrence to be addressed. I note that in Porter v R [2008] NSWCCA 145 Johnson J said at [81]: "The crime of arson may be committed in a variety of circumstances. It is an extremely serious and dangerous crime: R v James (1981) 27 SASR 348 at 351; R v Davies at 358 [44]. The motive of the offender is relevant to an assessment of the objective seriousness of the offence: Newton v State of Western Australia [2006] WASCA 247 at [13]. Courts have observed that arson is very easy to commit, usually with destructive (if not tragic) consequences: R v Catts (1996) 85 A Crim R 171 at 176; Newton v State of Western Australia at [12]. It has been said that arson is often a difficult crime to detect: R v Davies at 370 [97]. Consideration of factors such as these has led courts to emphasise the importance of general deterrence in arson cases."
22. Further, I note that Davies J in giving the remarks on sentence in R v Gino Stocco; R v Mark Stocco [2017] NSWSC 304 indicated that the starting point for the Arson offence involving $177,000 of damage was 7 years. I accept the criminality in that matter is different to the matter presently under consideration.
23. In respect of the offences of Break Enter and Steal, general deterrence also has a role to play in this sentencing exercise, see for e.g. R v Harris [2007] NSWCCA 130 and R v Merrin [2007] NSWCCA 255.
24. The victim Jody Bradley in the matter involving the offence contrary to s 112(2) of the Crimes Act must have been absolutely terrified, given the extended period of time over which the conduct of the offender occurred and she had an axe blade held to her face. It seems the actions of the offender were drug fuelled.
25. The offences of Drive While Disqualified attaching to Certificates pursuant to s 166 of the Criminal Procedure Act are no minor examples of that offence. I note the decision of Jibran v R [2020] NSWCCA 86 at [200] per Johnson J as to the need for specific and general deterrence so far as that offence is concerned.
26. Objectively, the criminal conduct of the offender warrants condign punishment.

Criminal History

1. The offender was born on 5 December 1997 and accordingly is 26 years of age at the time of sentence and was 24 at the time of offending. The criminal history does not entitle the offender to any particular leniency. In 2016 he was convicted and dealt with by way of good behaviour bond for charges of domestic violence assaults. In 2017 he was sentenced to imprisonment for domestic violence offending including stalk/intimidation and contravene apprehended violence order.
2. In 2018 he was convicted and sentenced to imprisonment for domestic violence offending including assault occasioning actual bodily harm and contravention of an apprehended violence order.
3. On 9 September 2019 he was convicted and sentenced to an aggregate sentence of 20 months imprisonment for domestic violence offending.
4. In 2019 he received a short sentence of imprisonment for damage to property and intentionally throw object at vehicle. On 18 December 2023 the offender was sentenced to an aggregate sentence in respect of offences including steal motor vehicle, dishonestly obtain financial advantage by deception and Drive conveyance without the consent of the owner.
5. Further, the offender was subject to parole at the time of the offending. He was sentenced to 12 months imprisonment with a non-parole period of six months at the Cootamundra Local Court on 5 November 2021, with the head sentence and non-parole period commencing on 6 May 2021. Accordingly, the factor of statutory aggravation of committing further offending while subject to conditional liberty provided for by s 21A(2)(j) of the Crimes (Sentencing Procedure) Act, 1999 is enlivened.
6. Parole was revoked with the offender being required to serve 3 weeks and 1 day from 22 April 2022 to 13 May 2022.

Subjective Case

1. The offender gave evidence at the sentence hearing. There is also before the court (Exhibit 1 on sentence) a psychological report under the hand of Julie Dombrowski. I will initially go to the evidence of the offender. The transcript will reflect that counsel for the offender and myself spoke firmly to the offender about his attitude when he first entered the witness box. Ultimately, I am of the opinion that the attitude demonstrated by the offender was a reaction to the predicament in which he found himself.
2. The offender's parents were present in court supporting him. They were visibly upset as is to be expected. When asked how his parents would feel, the offender said that they would be ashamed and upset.
3. The offender then said in evidence that the victims of his crimes would have felt horrible. He said he felt sorry for everything. He went on to say that he had no words for what he did, he was not thinking straight, he was "badly" into the drug scene and during the crime spree he was "as high as a kite" on drugs. He also said that he was sorry for the trouble that he caused and that he was sorry for his attitude to the police.
4. I have no note or memory of the offender being challenged on these expressions of remorse in cross-examination. Accordingly, I am prepared to find on balance that the offender is remorseful. I am fortified in this finding by what is set out at paragraph 9 of Ms Dombrowski's report, including the offender saying "I know what I'd done was wrong… I know it's all my fault".
5. The evidence continued that he understands that he is going to require assistance with his mental health issues and issues relating to substance abuse. He has been part of the Buvidal depot injections program for about 15 months. That has helped keep the cravings at bay. He said he would continue the medication upon his release.
6. Further, he has an offer of support from Ms Lee who has offered him the use of a caravan in which he can live upon his eventual release. The offender expressed gratitude that offer of support.
7. The offender accepted that the sentence assessment report indicated that he was unsuitable to do community work and that he was a medium/high risk of reoffending. He is aware that if he breaches parole he will go back to jail for the balance of the sentence. He accepted that he has spent most of his adult life in custody and he indicated he does not wish to keep going back to jail.
8. Currently the offender is in segregation in custody because of being stood over by gangs while in custody. He has been working in the furniture shop at Goulburn Correctional Centre and has learned a number of skills relating to cabinetmaking. He had previously been a sweeper Bathurst Correctional Centre, except the custodial record indicated that it had been found guilty of a number of disciplinary infractions while in custody. He indicated a willingness to do the EQUIPS program while it was in custody.
9. His evidence continued that his parents and his children, namely a son aged six and a daughter aged three, are good incentives for him to remain out of custody when he is ultimately released. He said it was not a pleasant thing to talk to his children about him being in custody. He wishes to become involved in the children's lives.
10. Under cross-examination the offender was taken to the various domestic violence offending on his criminal history. He was also taken by the Crown in cross-examination to a number of the breaches of prison discipline recorded on the custodial history.
11. Further, he said that once released he will turn to counselling and his parents for assistance. He gave a history of long-term use of illicit substances and he said that everything is better now that he is off drugs.
12. The offender was asked questions about the offending on 21 April 2022 at Grenfell. He admitted that he attempted to access the gun safes in an attempt to access the firearms in order that he could sell them in order to purchase drugs.
13. The offender was quite tearful while giving his evidence. He appeared to be genuine in what he was saying, in particular about his desire to remain abstinent from illicit substances.
14. I turn now to the report of Ms Dombrowski. She noted (paragraph 7) that the offender's mood was depressed, and he became tearful when discussing the lack of contact with his children and the death of his grandfather. There were no indicators of psychosis or intoxication and there was nothing that raised concern regarding cognitive functioning.
15. At paragraph 8 of the report Ms Dombrowski sets out that the offender was subject to parole at the time of offending, and he felt betrayed by his partner as she had been sexually intimate with his brother. The offender told her that he committed the offences in order to fund his ongoing methyl amphetamine and cannabis use as well as living expenses while he attempted to evade police.
16. The offender grew up on a small acreage at Temora. At paragraph 11 of the report the author sets out that the offender gave a history of his father regularly physically assaulting him, his mother and his siblings. The home environment was tense because of his father's violence. At ages 8 to 9 the offender was regularly sexually assaulted by a man known to his grandfather.
17. Since late adolescence the offender has lived away from home to avoid conflict in the home. He struggles to remain abstinent from substances once released from custody. The offender was regularly bullied by means of physical assaults at school.
18. Given the history of the offender being subject to physical and sexual abuse as a child and his exposure to domestic violence the principles enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 are enlivened to some extent reducing the moral culpability of the offender. However, whilst the principles are enlivened, they do not achieve the same weight as they might in other matters dealt with by this Court particularly in far western and north-western New South Wales.
19. The offender commenced working at 15 years of age at a fast food outlet and as a farm hand. During adulthood he has worked as a seasonal farmer and shearer although he had lost interest and he become unreliable. Ms Dombrowski also notes that periods of incarceration have also disrupted the offender's employment. Ms Dombrowski reported that the offender felt alienated from his local community since childhood. The offender also described feeling persecuted and unfairly targeted by local police and community members for crimes he had not committed. He has largely associated with antisocial peers since childhood and he does not consider himself to have any close genuine friendships today.
20. The offender is currently single and has two children but he has not seen either for two or three years. During the interview with the author of the report the offender became tearful when discussing the absence of contact with his children and expressed a strong desire to abstain from substance use and offending to enable regular contact with them.
21. Clearly, the offender has had a significant history of use of illicit substances, noting he commenced using cannabis and methyl amphetamine at around 17 years of age. The offender told the author of the report that he has smoked up to 3 g of cannabis and injected up to 1 g of methyl amphetamine most days while living the community in the past nine years. The offender told Ms Dombrowski that he used the substances in order to deal with the negative thoughts and feelings associated with adverse childhood events including the sexual abuse. He has participated in the buprenorphine/bupenidol programs to maintain abstinence while in prison but that he does not maintain treatment compliance in the community. I note that the offender in his oral evidence indicated that he would be willing to maintain those programs once released on this occasion.
22. The report sets out that the offender made a suicide attempt by overdose that the age of 20. The offender continues to experience negative alterations and cognitions and mood and experiences increased distress and alterations in physiological arousal when required to shower with others, undergo a strip search, or engage in sexual intimacy with partners.
23. At paragraph 22 of the report Ms Dombrowski sets out that the experiences of the offender in his formative years has led to the development of a young man who feels largely victimised and alienated from mainstream society and has experienced long-standing emotional/psychiatric difficulties consistent with post-traumatic stress disorder. She goes on to opine that the experience of stressful adverse events during his formative years has likely interfered with the normal development of the frontal areas of his brain. The offender's personality structure appears most in keeping with a cluster B (dramatic/erratic) personality type with antisocial features.
24. Ms Dombrowski opines the offender requires management of his unstable personality structure. She recommends that he will benefit from completing a pre-treatment program of motivational interviewing to develop the commitment needed to fully engage with his treatment, which is common amongst people with his personality structure. She also sets out that the offender will require long-term treatment and management over several years to be effective.
25. Early in the report it is noted that the offender adjusted easily to being in custody. Clearly enough there is a risk that the offender is in danger of becoming institutionalised.
26. It is obvious from the report that the offender will require intensive and extensive supervision upon his eventual release to ensure that he receives appropriate treatment and counselling for the various mental health and substance abuse issues that confront him. This in my view justifies a finding a special circumstances that might not otherwise be justified in the circumstances. There is also the issue of partial accumulation of sentence.
27. The Court is also assisted by a Sentencing Assessment Report that is within the Crown tender bundle, exhibit A on sentence. Although much briefer, the contents largely mirror what is in the report of Ms Dombrowski. The offender told the author of the SAR that all his offences were committed whilst he was under the influence of drugs and that he placed blame for his relapse on his brother and ex-partner.
28. Further, the author of the SAR notes that the offender has an extensive history of violent offending. The offender acknowledged to the author of the report that he has issues with violence and aggression. It is of concern that the offender indicated to the author of the SAR that he could not remember using violence in the offending because of his drug use.
29. The SAR also notes that the offender was subject to supervision at the time of the offending. The offender frequently failed to report to Community Corrections during the period of supervision.
30. The report assesses the offender at being at a medium/high risk of re-offending. Upon release he will be referred to residential rehabilitation and to medical professionals for his mental health issues.
31. Given the criminal history of the offender, the breach of parole, and the significant number of breaches of prison discipline, I could not find that the offender is unlikely to reoffend. I am fortified in this finding by the contents of the SAR, particularly noting that the offender is assessed as a medium/high risk of reoffending.
32. Essentially for the same reasons I am not able to find on balance that the offender has good prospects of rehabilitation. However, I accept that at least at the sentence hearing the offender was sincere about wishing to address his substance abuse issues. Much will depend upon the manner in which he engages with the relevant authorities upon his eventual release. As already observed, supervision will need to be intensive and extensive.

General remarks

1. In passing sentence I will need to ensure that I give proper regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
2. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the offending, including the multiplicity of the offending, the criminal history, the need for general deterrence, the maximum penalties provided and the standard non-parole period that applies to the offence contrary to s 112(2) of the Crimes Act clearly there is no other penalty other than imprisonment which is appropriate. Mr Keller counsel for the offender made no contrary submission. Nor quite frankly could any reasonable submission be made to the contrary.
3. At the sentence hearing I indicated a preliminary view that the appropriate commencement date of the sentence in this matter is 22 October 2022. Neither counsel indicated any dissent from that date and accordingly, that is the date on which the sentence will commence.
4. The co-offender has not appeared for sentence, therefore there is no issue of parity.
5. Clearly, this is a matter that is appropriate for an aggregate sentence. It will be necessary to set out the sentences that would have been imposed had separate sentences were imposed. Given the number of the matters attaching to the various Form 1 documents and the nature of some of the offending, the matters on the various Form 1 documents will have some meaningful impact on the sentence to be imposed.
6. Further, if separate sentences were imposed there would need to be some partial accumulation of sentences to reflect the different offending and the different victims of the various crimes. However, the principle of totality would also need to be considered. Even so, given the multiplicity of serious offending the ultimate aggregate sentence will be substantial.
7. I will set out the sentences that would have been imposed had separate sentences been imposed in tabular form hereunder: Seq. offence description Max penalty Ind. Sentence H88302524 1 Take and Drive Vehicle without consent of owner Grey Holden Commodore 5 years 18 months (starting point (S/p) 2 years GL373 taken from rear of clothing shop at Temora H8909942 2 Drive Manner Dangerous in Police Pursuit Pursuit on 17.4.22 involving red Toyota Hilux 3 years Taking into account 2 matters on Form 1 1 year 10 months (s/p 2 years 6 months) 13 Damage Property by Fire Burning out of stolen white Mitsubishi Pajero 10 years Taking into account 9 matters on Form 1 2 years 6 months (s/p 3 years 6 months with rounding down) 18 Break Enter and Steal (s 112(1) Crimes Act) Break in at Ungarie, theft of $400 14 years Taking into account 6 matters on Form 1 document As above (for seq 13) 26 Break Enter and Steal (s 112(1) Crimes Act) Break in and theft of numerous items from shed at Grenfell 14 years Taking into account 7 matters on Form 1 document 3 years (s/p 4 years) 34 Break Enter and Damage Property Break in at Gunning Gap and damage to gun safe 14 years imprisonment Taking into account 4 matters on form 1 document 2 years 6 months (s/p 3 years 6 months) H90285588 1 Aggravated Break Enter and Commit Serious Indictable Offence - Intimidation Break In to home at Temora while armed with axe and intimidate Jody Bradley 20 years imprisonment with SNPP 5 years Taking into account 4 matters on Form 1 document 4 years (s/p 5 years 6 months)(with rounding down) 6 Destroy Property by Fire Destruction by fire of property at Temora 10 years imprisonment 3 years 9 months (s/p 5 years) 7 Damage to Property by Fire Damage to adjoining property at Temora 10 years imprisonment 3 years (s/p 4 years) 10 Drive While Disqualified Riding Trail Bike after setting fire to property at Temora 6 months s 166 Certificate 18 Drive While Disqualified Driving red Commodore Sedan - erratic driving and speed 9 months s 166 Certificate

Orders

1. In respect of each of the matters to which the offender has pleaded guilty he is convicted.
2. The offender is sentenced to an aggregate sentence of 11 years with a non-parole period of 7 years.
3. The non parole period is to date from 22 October 2022 and will expire on 21 October 2029
4. The balance of term on parole of 4 years will date from 22 October 2029 and expire on 21 October 2033
5. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
6. Although it is entirely a matter for the parole authorities I recommend in the strongest of terms that any release to parole be supervised and conditioned that the offender obey all reasonable directions of the Department of Community Corrections relating to ongoing treatment and counselling for substance abuse and mental health issues.
7. The non-parole period is approximately 64% of the total sentence, which indicates a finding of special circumstances the reasons for which were enunciated earlier in these reasons but include the need for an extended period of supervision to ensure that the offender receives appropriate treatment and counselling for substance abuse and mental health issues.
8. In respect of the two charges of Drive Manner Dangerous in a Police Pursuit and Drive While Disqualified, the automatic periods of disqualification are imposed.
9. I direct that a copy of the report of Ms Dombrowski, exhibit 1 on sentence be forwarded to the Department of Corrective Services with the relevant warrant.

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: 28 May 2024