R v Brown, Haines & Ingray

District Court of NSW|2021-10-15

Solicitors: Crown: Ms G Alexander Brown:Mr Y Hassan Haines: Mr M Kiang Ingray: Mr N Felton File Number(s): Brown: 2019/00049941, 2019/00082524 Haines: 2019/00167172 Ingray: 2019/00050393 +ors

OVERVIEW

Each of the offenders is to be sentenced for multiple offences, having been found guilty by a jury at trial. For many of these offences, they were the co‑offenders of each other and/or another man, Ty Simms.
In addition to the offences that Mr Ingray was found guilty of at trial, Mr Ingray separately pleaded guilty to a further 20 offences in an indictment that was presented in the District Court on 12 November 2020 (the plea indictment). After being committed for sentence, amongst those 20 offences were offences for which his co‑offenders were found guilty at trial (trial indictment Counts 2, 3, 5 and 6; plea indictment Counts 19 to 22, 27 and 28; a further offence, plea indictment Count 30, was also the subject matter of Count 11 for which Brown was convicted at trial).
Mr Simms separately pleaded guilty to or acknowledged his guilt with respect to Counts 1 to 10 of the trial indictment. He is also the co‑offender for Mr Ingray in relation to Counts 11, 13, 15, 16, 17, 25, 26 and 29 on the plea indictment. His separate sentence proceedings were completed by her Honour Norton SC DCJ on 30 September 2021.

JOINT CRIMINAL ENTERPRISE

An underlying principle relevant to all the offences for sentence is joint criminal enterprise. Where two or more persons reach an understanding to commit a criminal offence and the agreed crime is committed by one or other or all of the parties to the joint criminal enterprise, all parties are equally guilty of the crime regardless of the part played in its commission and it is inappropriate to attempt to assess with any degree of precision the role each played in the consummation of the criminal enterprise (R v Hoschke (2001) NSWCCA 317 at 16).
This however does not mean that every participant in a joint criminal enterprise shares the same degree of objective criminality where there is a proper basis for differentiation, for example, if one offender stands out as the obvious ringleader.
Mr Ingray's offending in respect of which he has pleaded guilty, or has been found guilty at trial, or asked to be taken into account on the four Form 1s or accepted as related offences pursuant to s 166 are in total 38. A number of these offences were committed, not with either Mr Haines or Mr Brown, but with Mr Ty Simms or Mr James Cavanagh.
Mr Ingray's offending took place between 29 November 2018 and 14 February 2019.
Mr Haines' offending in respect of which he was found guilty at trial is a total of nine offences occurring in the period of 5 February 2019 to 12 February 2019.
Mr Brown's offending in respect of which he was found guilty at trial is a total of seven offences occurring in the period of 12 February 2019 to 14 February 2019.
In respect of Mr Haines and Mr Brown, there are no offences in common with Mr Simms or Mr Cavanagh.
It is not appropriate to find that Mr Ingray was the ringleader based on the greater number of offences committed over a lengthier period or in association with other offenders than Mr Haines or Mr Brown.
In my view, these matters should be regarded as a series of separate joint criminal enterprises with equal criminality between those participating on each occasion.
Participation would have depended on any individual date as to who was willing, able and available to participate;:that would vary from time to time according to the particular circumstances. There were clearly from time to time at least five likeminded individuals who might have been willing to participate.
There is no evidence of any prior connection between any of the offenders and the victims or their premises. Ms Fernando, on behalf of Mr Ingray, has submitted that the offending was on all occasions opportunistic. I do not accept that submission. In my view it is evident that on each relevant occasion of offending, a number of likeminded individuals met together for the purpose of travelling late at night or in the early hours of the morning in stolen vehicles to an area where they anticipated being able to then locate attractive targets for their offending, and then committed or attempted to commit the offences. The only opportunistic feature of the offending was the selection of appropriate targets on each occasion.
Cell tower records in respect of the trial offences indicate the offenders would be in the vicinity of the properties ultimately targeted for several hours, the inference being that they were selecting and assessing suitable premises for the offending. The offences were accordingly the subject of both planning and organisation.
There is no basis on which to distinguish the moral culpability of any offender on any individual offence from any other offender engaging in that offence.

THE TRIAL COUNTS IN RESPECT OF EACH OFFENDER

Count 1. Aggravated break and enter and commit serious indictable offence - people there - 16 Central Avenue, Mosman - s 112(2) of the Crimes Act 1900 (Haines only) maximum penalty 20 years' imprisonment and there is a relevant standard non‑parole period of five years.
Count 2. Enter building/land with intent to commit indictable offence - 53 Seaforth Crescent, Seaforth - s 114(1)(d) of the Crimes Act 1900 (Haines only) maximum sentence seven years' imprisonment and there is no provided standard non‑parole period.
Count 3. Aggravated break and enter and commit serious indictable offence - people there - 32 Seaforth Crescent, Seaforth - s 112(2) of the Crimes Act 1900 (Haines only) maximum 20 years' imprisonment and there is a standard non‑parole period of five years.
Count 4. Aggravated break and enter and commit serious indictable offence - people there - 10 Guthrie Street, Cremorne - s 112(2) of the Crimes Act 1900 (Haines only) maximum penalty 20 years' imprisonment with a standard non‑parole period of five years.
Count 5. Aggravated break and enter and commit serious indictable offence - people there - 52 Bundock Street, Randwick - s 112(2) of the Crimes Act 1900 (Brown only) maximum 20 years' imprisonment with a standard non‑parole period of five years.
Count 6. Aggravated break and enter dwelling, et cetera, in company, intending to steal less than or equal to $ 60,000 - 4 James Cook Island, Sylvania Waters - s 113(2) of the Crimes Act 1900 (Brown only) maximum penalty 14 years' imprisonment with no standard non‑parole period.
Count 7. Aggravated break and enter and commit serious indictable offence - people there - 24 Warrina Road, Caringbah South - s 112(2) of the Crimes Act 1900 (Haines, Brown and Ingray) maximum penalty 20 years' imprisonment with a standard non‑parole period of five years.
Count 8. Steal motor vehicle - s 154F of the Crimes Act 1900 (Haines, Brown and Ingray) maximum ten years' imprisonment with no applicable standard non‑parole period.
Count 9 and 10 are in the same terms and relate to assault with intent to rob in company - s 97(1) of the Crimes Act 1900 (Haines, Brown and Ingray) maximum penalty 20 years' imprisonment with no applicable standard non‑parole period.
Count 11. Be carried in a conveyance taken without consent of the owner - s 154A(1)(b) of the Crimes Act 1900 (Brown only) maximum penalty five years' imprisonment no applicable standard non‑parole period.

FACTS ACCEPTED BEYOND REASONABLE DOUBT CONSISTENT WITH THE JURY VERDICTS

Mr Tony Haines was born on 17 December 1989 and was 29 years of age at the time of the offences. The offender was on parole at the time of each of the offences.
Mr Aaron Brown was born on 15 May 1992 and was 26 years of age at the time of the offences. The offender was on parole at the time of each of the offences.
Mr Wayne Ingray was born on 14 October 1995 and was 23 years of age at the time of the offences. The offender was on parole at the time of each of the offences.

COUNT 1 - AGGRAVATED BREAK AND ENTER AND COMMIT SERIOUS INDICTABLE OFFENCE, PEOPLE THERE - 16 CENTRAL AVENUE, MOSMAN - s 112(2) of the Crimes Act 1900 - HAINES ONLY

At about 3.15am on Tuesday, 5 February 2019 Mr Jun Wang, aged 53, Ms Lucy Xiao, their two children, and a friend, were asleep inside their residence at 16 Central Avenue, Mosman.
Mr Haines, Mr Ingray and Mr Simms drove in Holden BZP 67C and stopped near this location. Mr Simms and Mr Haines exited the vehicle and entered the residence via a closed rear sliding door.
Mr Simms and Mr Haines rummaged through the house and stole the following items:

A Miu Miu branded clutch bag
A black handbag with a zipper
A gold handbag with a black music note on the front
A school bag with the letter "R" on the strap
An 18-carat gold Omega watch
A silver Omega watch
A pair of mink pink sunglasses
Two mobile phones

Mr Simms and Mr Haines exited via the front door and entered the Holden BZP 67C which Mr Ingray drove away.
The total value of the property stolen was $22,800. The victims were reimbursed $3,000 for the stolen property, meaning that they remain $19,800 out of pocket.

COUNT 2 - ENTER BUILDING/LAND WITH INTENT TO COMMIT INDICTABLE OFFENCE - 53 SEAFORTH CRESCENT, SEAFORTH - s 114(1)(d) of the Crimes Act 1900 - HAINES ONLY

At 3.45am, Mr Haines, Mr Simms and Mr Ingray arrived at 53 Seaforth Crescent in Seaforth. This address is a five-minute drive from 16 Central Avenue, Mosman. All three males exited the vehicle and entered the property at 53 Seaforth Crescent. The victims were asleep inside the residence at the time.
The three males attempted to open the doors to the victims' two Mercedes and attempted to open a side gate that led to the rear of the property. The three males saw that CCTV cameras were present, and they left the location.

COUNT 3 - AGGRAVATED BREAK AND ENTER AND COMMIT SERIOUS INDICTABLE OFFENCE - PEOPLE THERE - 32 SEAFORTH CRESCENT, SEAFORTH - s 112(2) of the Crimes Act 1900 - HAINES ONLY

Mr Haines, Mr Simms, and Mr Ingray went across the road to 32 Seaforth Crescent where Mr Tony Hung and his family were asleep in the residence. This address is across the road from 53 Seaforth Crescent. The three males removed a flyscreen, forced open a window and entered the residence.
The three males rummaged through the house and stole the following items:

Keys to a Toyota LandCruiser
Keys to a Mercedes Benz ML250
Beo brand wireless earphones
Portable phone charger
Tub of pre‑workout powder

The three males exited by the front door and used the keys to the Mercedes and stole three pairs of sunglasses. The three males then drove away in the Holden BZP 67C.

COUNT 4 - AGGRAVATED BREAK AND ENTER AND COMMIT SERIOUS INDICTABLE OFFENCE - PEOPLE THERE - 10 GUTHRIE STREET, CREMORNE - s.112(2) of the Crimes Act 1900 - HAINES ONLY

Mr Haines, Mr Simms, and Mr Ingray drove to 10 Guthrie Street in Cremorne. This address is a 20-minute drive from 32 Seaforth Crescent in Seaforth. The victim, Martin Poole, and his wife and their three children were asleep upstairs in the house.
At least one of the three males broke into the house through a locked side door, rummaged through the house and stole the following items:

A black wallet containing a driver's licence, three NAB Visa cards, a NAB debit card, an Opal card, personal papers and $100 cash
A car key for a Toyota Prius
A set of house and office keys
A car key to a Mercedes Benz
A blue leather wallet containing a driver's licence and $100 cash
Two Apple MacBook laptops
An iPad Pro and keyboard
A Samsung tablet
A Lumix Panasonic digital camera
A Sony Handycam
A Canon PowerShot camera
An Apple iPhone 4
An Apple iPhone 5S
An Apple iPhone 6
Charging cords
A Kathmandu backpack
A Dyson vacuum cleaner
A pair of Coach brand sunglasses

The victims noticed the theft at 6.30am when they awoke.
As a direct result of the break and enter, the Pooles were personally out of pocket $500 for an insurance excess and another $500 excess to cover the Mercedes car key that was stolen.

COUNT 5 - AGGRAVATED BREAK AND ENTER AND COMMIT SERIOUS INDICTABLE OFFENCE - PEOPLE THERE - 52 BUNDOCK STREET, RANDWICK - s 112(2) of the Crimes Act 1900 - BROWN ONLY

At about 3.20am on Sunday, 10 February 2019, Mr Anthony Fatouros, aged 70 and his wife were asleep in their residence at 52 Bundock Street in Randwick.
Mr Brown, Mr Ingray and Mr Haines arrived in Holden BZP 67C. All three males exited the vehicle and entered the property by a closed rear gate. They opened a garage door and entered the garage. They smashed one of the car windows and stole the following items from the vehicle:

Dashcam
Virgin frequent flyer card
Bluetooth headphones
A vest and gloves
Keys
Two x prescription sunglasses

The Bluetooth headphones were in the possession of Mr Haines when he was arrested on 14 February 2019.

COUNT 6 - AGGRAVATED BREAK AND ENTER DWELLING IN COMPANY INTENDING TO STEAL LESS THAN OR EQUAL TO $60,000 - 4 JAMES COOK ISLAND, SYLVANIA WATERS - s 113(2) of the Crimes Act 1900 - HAINES & BROWN ONLY

At about 3am on Tuesday, 12 February 2019, Mr Romeo Georges, aged 43 and his son, Georgio Georges, aged 21, were asleep in their residence at 4 James Cook Island, Sylvania Waters.
Mr Ingray, Mr Simms, Mr Haines and Mr Brown arrived in Holden BZP 67C. They exited the vehicle and approached the residence. One of the males attempted to open the front door, using a tool. Another male began opening a bedroom window where Georgio Georges was sleeping. The male reached inside the window, this woke Georgio Georges and he said, "Who's that?" The males then left the property and drove away.

COUNT 7 - AGGRAVATED BREAK AND ENTER AND COMMIT SERIOUS INDICTABLE OFFENCE, PEOPLE THERE - 24 WARRINA ROAD, CARINGBAH SOUTH - s.112(2) of the Crimes Act 1900 - BROWN, HAINES & INGRAY

At about 3.45am on 12 February 2019, Ms Nicole Powell and Mr Trent Powell were asleep in their residence at 24 Warrina Road in Caringbah South. This location is a 15‑minute drive from 4 James Cook Island. Mr Ingray, Mr Simms, Mr Haines and Mr Brown arrived in Holden BZP 67C and exited the vehicle. They opened the closed garage door, which may not have been locked, and gained entry to the premises. They rummaged through the house and stole various items including car keys to the Toyota and BMW vehicles on the driveway. They used the keys to open the Toyota and steal further items.
The items stolen from the house and car included:

Sunglasses
Child seat
Garage remote key
Two x car keys
House keys
Two x wallets
Handbag
Prescription glasses
Port Authority and ASIC airport security cards

As a direct result of the break and enter, the Powells paid $1,250 for insurance excesses, $4,000 for a hire car, $1,000 to have a new key cut for the BMW, $450 to have new door locks fitted, $60 to replace their licences and $1,000 for a new massage table that Ms Powell used for work. The Powells were out of pocket $7,760 in total.

COUNT 8 - STEAL MOTOR VEHICLE - s.154F of the Crimes Act 1900 - BROWN, HAINES & INGRAY

Mr Ingray and Mr Brown, as part of the joint criminal enterprise with Mr Haines, stole and drove away the BMW with registration number POW 79N. The BMW and Holden BZP 67C were both driven away at 4.13am.

COUNT 9 - ASSAULT WITH INTENT TO ROB IN COMPANY - s 97(1) of the Crimes Act 1900 - BROWN, HAINES & INGRAY

COUNT 10 - ASSAULT WITH INTENT TO ROB IN COMPANY - s.97(1) of the Crimes Act 1900 - BROWN, HAINES & INGRAY

At about 4.30am on 12 February 2019, Mr Richard Deignan and Ms Kim Deignan were driving in their silver Mercedes Benz C63 from their residence in Cronulla to their business in Marrickville. While in Ramsgate Mr Ingray, Mr Brown and Mr Haines began to follow them in BMW POW 79N and Holden BZP 67C. The Deignans first noticed the cars when both sped past them. The BMW and the Holden continued all the way to Marrickville where the victims approached their business car park, which was on Chalder Avenue, secured by an electric gate.
Ms Deignan opened the gate remotely with a remote control. As the Deignans were waiting for the gate to open, the Holden BZP 67C was driven in front of the victims' car so that they could not enter the car park and BMW POW 79N was driven behind the Deignans' car so that they could not reverse. Ms Deignan yelled at Mr Deignan to lock the doors, which he did, and Ms Deignan proceeded to dial Triple 0.
Whilst Ms Deignan was on the phone to an operator, one of the males approached the victims' vehicle while carrying a metal bar, with a hood over his head. The male attempted to open the front and rear passenger doors which were locked. Mr Deignan nudged the offenders' vehicle at which time the other car moved so that he was able to drive away between the vehicles. Mr Deignan drove away quickly down Chalder Lane. Both the Holden and the BMW pursued the victims' vehicle for a short time, after which the vehicles turned in the opposite direction to the victims.
The Crown case at trial, which I accept beyond reasonable doubt, was that the offenders were occupants of one of the two vehicles that followed the Deignans and participated in Counts 9 and 10 as part of a joint criminal enterprise. It cannot be determined from the evidence which of the offenders approached while carrying the metal bar, but it was clearly intended to at least intimidate the victims. The description of that person, as given by the victims, appears to eliminate Mr Ingray, as his body shape is entirely inconsistent with those descriptions.
Later that day police located BMW POW 79N and Holden BZP 67C parked in a small laneway of Baird Avenue in Matraville, less than 300 metres from Mr Ingray's residence. At this time, number plates CM 41 UA had been affixed to the Holden. Those number plates had been stolen from a police vehicle within the previous week. Police did not seize the BMW and the Holden at that time.

COUNT 11 - BE CARRIED IN CONVEYANCE TAKEN WITHOUT CONSENT OF THE OWNER - s.154A(1)(b) - BROWN ONLY

On 14 February 2019, between about 3am and 7.30am, Mr Ingray was in possession of BMW POW 97N driving that vehicle from Matraville to other locations in Sydney. During this period of time, Mr Brown was a passenger in that vehicle.

ARREST OF MR BROWN AND MR INGRAY

At about 7.30am on 14 February 2019, Mr Ingray parked the vehicle on Anthony Lane, Matraville, and he and Mr Brown got out of the BMW and walked towards Mr Ingray's residence. Mr Ingray and Mr Brown were arrested on Beauchamp Road, Matraville, shortly thereafter.
Mr Ingray, when arrested, sustained four bites from a police dog used by one of the arresting officers. Mr Ingray sustained two bites to the left leg and two bites to the right arm. Mr Ingray was initially treated by ambulance officers but was later taken to hospital where he remained until the early evening of 15 February 2019. His treatment included suturing in both sites, and neither Mr Brown nor Mr Ingray participated in an ERISP as was their right.
Mr Brown was arrested and charged with aggravated break and enter offences and other offences on 14 March 2019.
There is no evidence of any significant sequelae arising from the dog bite injuries to Mr Ingray, however those injuries, though minor, will be taken into account on sentence.

ARREST OF MR HAINES

On 28 May 2019, Mr Haines was arrested on Balmain Road in Leichhardt. The offender was cautioned and conveyed to Newtown Police Station. After receiving legal advice, the offender refused to participate in an electronically recorded interview as was his right.

AGREED FACTS

Each of the offenders agreed to particular facts relevant to the charge, or charges against the individual offender.
In general, those agreed facts were as to particular offences charged against the individual offender as having occurred and the details in particular as to what was stolen and where certain stolen property was eventually recovered in the absence of any admission as to participation in the commission of the offence.
The agreed facts were Exhibits 1 and 54 (Ingray only), Exhibit 2 and Exhibit 53 (Haines only) and Exhibit 3 and Exhibit 51 (Brown only).
Exhibit 51, there was no DNA of Mr Brown on the steering wheel of the Holden Commodore registration number BZP 67C;
Exhibit 53, mobile phone numbers used or asserted to have been used by Mr Haines;
Exhibit 54, the residential address of Mr Ingray during the period of the alleged offences.
The agreed facts re Exhibit 1 (Mr Ingray only) provided a list of the offences to which he had previously pleaded guilty and adhered to on arraignment in the District Court and the details and some common features in respect of those admitted offences omitting any reference by name to any co‑offender the subject of any like count at trial.
I note that the cooperation between the prosecution and the offenders in agreeing on facts not in dispute considerably reduced the number of potential witnesses that would otherwise have been necessary to call at trial and accordingly substantially reduced the length of the trial. This is a circumstance to be taken into account in favour of each of the offenders in determining sentence.

ADDITIONAL COUNTS RE MR INGRAY

As previously indicated, Mr Ingray initially pleaded guilty in the Local Court to a large number of offences. However, when arraigned in the District Court, he did not adhere to the guilty pleas which became the subject of trial in respect of Counts 7, 8, 9 and 10.
I note that he is entitled to a discount for the early pleas of guilty in respect of which he adhered to the plea, that discount is in each case is 25% as provided by the Early Appropriate Guilty Plea scheme and which will be provided.
The prosecution on sentence provided a separate tender bundle in respect of each accused. In respect of the trial counts I have provided a consolidated set of findings beyond reasonable doubt on the evidence at trial which is in my view significantly more comprehensible than the prosecution approach.
However, in respect of Mr Ingray and the counts on the indictment to which he pleaded on 12 November 2020, the prosecution sentence bundle contains an agreed set of facts which are repetitive, but not necessarily the same as the facts found at trial, in particular because they do not name any co‑offender. I will refer to those facts as provided because they are agreed, even though largely repetitive, for the number of offences already referred to.

COUNT 1 - AGGRAVATED BREAK AND ENTER AND STEAL KNOWING PERSON THERE - 29 NEEWORRA ROAD, NORTHBRIDGE, ON 19 NOVEMBER 2018 - s.112(2) of the Crimes Act 1900

I do not propose to repeat the maximum term of imprisonment, or the standard non‑parole period or refer to whether there is or is not a standard non‑parole period when dealing with these counts, as I have already dealt with that appropriately in relation to a number of other offences.
At about 1am on Thursday, 29 November 2018, Roland Wong aged 60, Susan Brown and their two children were asleep in their home at 29 Neeworra Road, Northbridge.
Mr Ingray and two unknown males broke into the house by cutting a flyscreen and removing glass louvre panels.
The following property was taken:

A wallet containing $500 cash, seven bank cards, a driver's licence, gift card, two Opal transport cards and various other membership cards
A black satchel bag containing work documents, glasses and security pass
Headphones
Keys to Mercedes C63 motor vehicle

The stolen keys were used to steal the Mercedes motor vehicle with NSW registration RW G8 68 from the premises.
At least one of the males drove the vehicle away at 1.35am.
The victims discovered the theft later that morning.
One of the stolen credit cards was used for three purchases after the offence.
One of the stolen debit cards was used for two purchases after the offence.
The two Opal cards were also used after the offence by two people known to Mr Ingray.
Mr Wong received two speeding fines as a result of his stolen car being used. His car was found damaged by fire beyond repair on 7 July 2019. There is no evidence as to the cause of fire to the Mercedes, or any person particularly responsible for it. It had been stolen approximately eight months before it was found damaged by fire.

PURCHASE OF A SLEDGEHAMMER

On the morning of Thursday, 13 December 2018, Mr Ty Simms and Mr Drew Gallagher were at unit 16/76 to 80 Beauchamp Road in Matraville. This was an address that Mr Ingray sometimes stayed at during the period of the present offences, as did other people.
Mr Simms and Mr Gallagher travelled in a taxi together to the Bunnings store in Hilldale. They purchased a sledgehammer and returned to the taxi which took them back to the Matraville residence. The sledgehammer was used in other offences described below as well as offences committed by Mr Simms without Mr Ingray.

COUNT 2 - BP SERVICE STATION, SOUTH HURSTVILLE, 14 DECEMBER 2018 - AGGRAVATED BREAK AND STEAL IN COMPANY - s.112(2) of the Crimes Act 1900 - [This matter is contained on a Form 1A to be taken into account when sentencing Mr Ingray in respect of Count 5, to be referred to hereafter]

At 3.08am on Friday, 14 December 2018, four males drove in an Audi motor vehicle with NSW registration BD into the BP Service Station at 61-63 Connells Point Road in South Hurstville. The service station was closed at the time.
The Audi had been stolen from a residence in Vaucluse three days earlier.
Mr Ingray was the front passenger in the vehicle. All four males were wearing face coverings and gloves.
One of the passengers exited the vehicle and approached the door of the service station. He used a key in his possession to open the door. He gestured at the car and Mr Ingray and another male exited the vehicle.
The two unknown males carried a sack and a cordless angle grinder into the store and used the angle grinder to cut the padlocks to the cigarette cabinets.
Meanwhile, Mr Ingray approached a garage door where an alarm system was located high on the wall. He moved a wheelie bin to underneath the alarm, climbed onto it, and used the sledgehammer to smash the alarm system. Mr Ingray returned the sledgehammer to the vehicle and then took a sack into the store.
The three males stole $800 cash from a cash drawer and $16,590 worth of cigarettes, using sacks to carry the cigarettes away. The four males drove away in the Audi motor vehicle no more than five minutes after they had arrived.
About $10,000 worth of damage was caused to the store.
The stolen cash drawer was located at the Matraville residence in a search executed after Mr Ingray was arrested.

COUNT 3 - SUPABARN STORE, ANNANDALE, ON 27 DECEMBER 2018 - s.112(2) of the Crimes Act 1900 - [To be taken into account on Form 1A when being sentenced in respect of Count 5, to be referred to hereafter]

At about 5.05am on Thursday, 27 December 2018, Mr Ingray drove the stolen Audi with registration DYG 538 to the Supabarn store at 4 Booth Street in Annandale. An unknown male was a passenger.
Mr Ingray reversed into the car park next to the building and the two males exited the vehicle.
Mr Ingray forced open the front doors of the store and the two males entered. Mr Ingray used the sledgehammer and a metal bar to break open an ATM inside the store. He took something from the ATM but did not obtain cash or any other valuable item.
A staff member, Mr Rudi Djie, entered the store from a rear door to commence his shift. He observed Mr Ingray smashing the ATM and phoned police.
Mr Ingray and the other male exited the store and drove away in the Audi vehicle.

COUNT 4 - BLACK STAR PASTRY, ROSEBERY, ON 5 JANUARY 2019 - AGGRAVATED BREAK AND ENTER WITH INTENT TO STEAL IN COMPANY - s 113(2) of the Crimes Act 1900 - [To be taken into account on Form 1A when being sentenced in respect of Count 5 to be referred to hereafter]

At about 1.13am on Saturday, 5 January 2019, Mr Ingray and two unknown males forced open the door of the Black Star Pastry café at C1/85-112 Dunning Avenue in Rosebery. This caused the glass door to crack and damaged its metal frame.
Mr Ingray entered first, followed shortly afterwards by the two unknown males. They intended to steal in the café. They looked through the café including the kitchen but left three minutes later without taking anything.
The repair to the door cost $1,080.

COUNT 5 - SIR BRAXTON CHOCOLATE BAR, ROCKDALE, ON 5 JANUARY 2019 - AGGRAVATED BREAK, ENTER AND STEAL IN COMPANY - s.112(2) of the Crimes Act 1900 - plus Form 1A

At about 4.30am on Saturday, 5 January 2019, the stolen Audi was driven to Sir Braxton Chocolate Bar at 2/13-19 Bryant Street, Rockdale.
Mr Ingray and an unknown male exited the vehicle. The two males smashed the glass front door of the store and entered. They ransacked the premises and stole a CCTV hard drive and $4,935 cash from the cash register. They also badly damaged a safe while attempting to open it. Mr Ingray and the unknown male then left the shop and drove away in the Audi vehicle.

COUNT 6 - 61 WOOLCOTT STREET, EARLWOOD, ON 7 JANUARY 2019 - AGGRAVATED BREAK, ENTER AND STEAL KNOWING PERSON THERE - s.112(2) of the Crimes Act 1900 - s.166 RELATED OFFENCE (SEQUENCE 41) DRIVE WHILE UNLICENSED

At about 4.30am on Monday, 7 January 2019, Mr Georges El Azzi aged 32 and his wife, Ms Lourett El Azzi and their two children were asleep in their residence at 61 Woolcott Street in Earlwood.
Mr Ingray and an unknown male entered the grounds of the property by a side gate and then looked into the garage and under the house. They broke into the residence by means of a rear side window where they removed the flyscreen and opened the window. They rummaged through the premises for around 15 minutes and stole the key to the victims' Mercedes New South Wales registration CAD 92P and the key for their Toyota Hilux.
The two males left the residence. Mr Ingray used the stolen motor vehicle key to steal the victims' Mercedes and drive away.
The stolen Mercedes was recovered on 5 April 2019 although by that time it had been replaced.

COUNT 7 - 81 RIVERVIEW STREET, RIVERVIEW, ON 14 JANUARY 2019 - - ENTER LAND WITH INTENT TO STEAL - s.114(1)(d) of the Crimes Act 1900

At about 3.35am on Monday, 14 January 2019, Ms Angela Cooley, aged 49, her husband and their two teenage children were asleep in their residence at 81 Riverview Street in Riverview.
Mr Ingray and two unknown males parked in a white hatchback vehicle nearby on Coonah Street. They walked onto the victims' property and looked into the windows using torches. They entered the backyard via side gate and the victims' dog began to bark at them. The three males then left the property.

COUNT 8 - 17 GABEE STREET, MALABAR, ON 20 JANUARY 2019 - AGGRAVATED BREAK, ENTER AND STEAL KNOWING PERSON THERE s.112(2) of the Crimes Act 1900

COUNT 9 - STEAL MOTOR VEHICLE - [each to be taken into account on Form 1B when sentencing the offender in respect of Count 10 to be referred to hereafter]

At around 4am on Sunday, 20 January 2019, Mr Gregory Terranova, aged 54, his wife Ms Shelley Terranova, aged 48, and their three children were asleep in their residence at 17 Gabee Place, Malabar.
Mr Ingray, the co‑offender Mr James Cavanagh, and an unknown male attended the residence. At least one of the offenders forced a rear sliding door off its rails and entered the residence.
At least one of the offenders took the following property:

Around $1,000 in Australian currency
Mr Terranova's wallet containing various cards
Keys to a Holden Captiva vehicle with registration YCZ 50H
A watch
A handbag containing a purse containing various cards
Gold and diamond earrings

Mr Ingray used the keys to steal the Holden Captiva vehicle from the residence. Mr Cavanagh allowed himself to be carried in this vehicle. The vehicle was photographed by a speed camera in Randwick at 4.25am, showing Mr Ingray driving the vehicle.
Mr Terranova and his wife woke up to a loud bang during the offence. Mr Terranova then discovered his rear door had been forced off its railings and glass was shattered across the floor. Ms Terranova discovered that their vehicle had been stolen and phoned the police.
When police arrived at the residence, the children were upset and crying.
Mr Ingray and Mr Cavanagh returned to the Matraville residence after the offence. Mr Cavanagh ordered a taxi at 7.12am to depart from the Matraville residence.
The stolen wallet was located at the Matraville residence upon a search after Mr Ingray was arrested.

COUNT 10 - 15 STEWART STREET, NORTH BONDI, ON 23 JANUARY 2019 - AGGRAVATED BREAK, ENTER AND STEAL KNOWING PERSON THERE - s.112(2) of the Crimes Act 1900 - plus Form 1B

At about 3.15am on Monday, 21 January 2019, Ms Melissa Michael, aged 35, Mr Jonathon Michael, and their two children, aged two and five, were asleep in their residence at 15 Stewart Street, North Bondi.
Mr Ingray, Mr Cavanagh and an unknown male attended the residence. They attended in the Holden vehicle which Mr Ingray had stolen the previous night.
At least one of the offenders opened a rear laundry door and entered the residence, then stole a bag which contained a car key and wallet amongst other things.
As soon as the break in occurred, an alarm sounded, and Mr and Ms Michael went to investigate. They heard running feet inside the house and Mr Michael yelled out, "Get out." Mr Michael saw a male leave the residence. Ms Michael looked out a window and saw her Audi Q5 vehicle with New South Wales registration YDX 33W being driven away.
Mr Ingray drove the Audi vehicle away, and Mr Cavanagh allowed himself to be carried in this vehicle. The stolen car contained two child seats.
When police arrived, they located Ms Michael's bag on the footpath outside the residence. The wallet and car key had been taken from the bag.
Police located a Bic brand lighter in the rear yard of the premises. DNA which did not exclude Mr Ingray as a contributor was found on this lighter.
Mr Ingray and Mr Cavanagh returned to the Matraville residence after the offence. Mr Cavanagh ordered a taxi at 7.25am to depart that residence.
Ms Michael's wallet and the stolen car seats were located upon a search of the Matraville residence after the arrest of Mr Ingray.

COUNT 11 - 276 BELGRAVE ESPLANADE, SYLVANIA WATERS, ON 22 JANUARY 2019 - AGGRAVATED BREAK, ENTER AND STEAL KNOWING PERSON THERE - s.112(2) of the Crimes Act 1900

At about 2.55am on Tuesday, 23 January 2019, Charlie Demian, aged 55, his wife Hoda Demian, their three children, and their six‑year‑old granddaughter, were asleep in their residence at 276 Belgrave Esplanade in Sylvania Waters.
Mr Ingray was driving the stolen Audi with registration number YDX 33W and Mr Simms and an unknown male were passengers. Mr Ingray stopped the vehicle near the residence and Mr Simms and the unknown male exited the vehicle.
One of the males entered the residence by forcing open a rear door near the kitchen; an alarm sounded when the male entered, causing the occupants of the house to wake up. The male stole a handbag containing a purse, with around $2,900 in Australian currency, the keys to the Mercedes vehicle with registration CV 24 ZM and various other items.
At some point, the garage door was forced open, damaging it. This noise caused the occupants of the house to wake up and investigate.
Charlie Demian heard the voices of two males near the garage and saw a male running down the hallway of the house. Charlie Demian called to his son to "Get my gun," to scare the intruder, although he did not own a gun.
Mr Simms then drove away in the Audi YDX 33W, and Mr Ingray and the unknown male stole the Mercedes vehicle, using the stolen keys.
The Mercedes was recovered on 26 January 2019 in Gymea. The cost of repairing the garage door was around $4,000.

COUNT 12 - 205 TRAFALGAR STREET, ANNANDALE, ON 25 JANUARY 2019 - AGGRAVATED BREAK, ENTER AND STEAL KNOWING PERSON THERE - s.112(2) of the Crimes Act 1900 - s.166 RELATED OFFENCE (SEQUENCE 42) DRIVE WHILE UNLICENSED

At about 3.30am on Friday, 25 January 2019, Matthew Langford, aged 55, and his wife were asleep in their residence at 205 Trafalgar Street, Annandale.
Mr Ingray drove an Audi motor vehicle with registration DPK 75M which had been stolen from a residence in Willoughby two nights earlier. Mr Ingray stopped the vehicle near the residence, and he and at least one other male exited the vehicle.
At least two males broke into the residence via a closed or unlocked rear window. The males took car keys to two vehicles and some house keys and then rummaged through a spare bedroom.
The males exited the residence and used the stolen keys to rummage through one of the vehicles. They did not take anything from the vehicle.

COUNT 13 - 2 WATERSIDE CRESCENT, MAROUBRA, ON 29 JANUARY 2019 - ENTER LANDS WITH INTENT TO STEAL - s.114(1)(d) of the Crimes Act 1900

At about 4am on Tuesday, 29 January 2019, Mr Les Mosca, aged 70, was asleep in his residence at 2 Waterside Crescent, Maroubra.
Mr Ingray and Mr Simms drove in a vehicle and stopped it near this residence. They both exited the vehicle and looked inside the garage window where Mr Mosca's 2014 Ferrari 458 was visible. They turned a CCTV camera on the exterior of the building upside down and then attempted to force open the garage door. They damaged the garage door but were unable to open it. They then returned to their vehicle and drove away.

COUNT 14 - 7 INMAN STREET, MAROUBRA, ON 29 JANUARY 2019 - STEAL MOTOR VEHICLE - s.154F of the Crimes Act 1900 - [On Form 1B to be taken into account when sentencing in respect of Count 10]

Mr Ingray and Mr Simms then attended 7 Inman Street in Maroubra sometime between 4.20am and 4.50am. This address was less than 150 metres away from 2 Waterside Crescent.
Ms Yasman Woodbridge's Jeep with NSW registration CSP 90C was parked in the driveway. Ms Woodbridge was unsure where she last left her key and she speculated that she may have dropped it outside.
Mr Ingray and Mr Simms stole the Jeep, which contained a large amount of clothing, a pram and a child seat.
The Jeep was recovered on 26 February 2019 in Botany after being used in other offences described hereafter.
The car key to the Jeep was located at the Matraville residence associated with Mr Ingray upon a search executed after his arrest.

COUNT 15 - 11 SIDDINS AVENUE, PAGEWOOD, ON 29 JANUARY 2019 - ENTER LANDS WITH INTENT TO STEAL - s.114(1)(d) of the Crimes Act 1900

COUNT 16 - 13 SIDDINS AVENUE, PAGEWOOD, ON 29 JANUARY 2019 - ENTER LANDS WITH INTENT TO STEAL - s.114(1)(d) of the Crimes Act 1900

At 4.57am Mr Ingray and Mr Simms parked the Jeep outside 31 Towner Gardens in Pagewood. They walked for about 100 metres to 11 Siddins Avenue and attempted to open the doors to a car parked on the driveway. They then tried to gain entry to the house for several minutes before going to 13 Siddins Avenue and attempting to gain entry to that house.
The victims were asleep inside the residences at 11 Siddins Avenue and 13 Siddins Avenue at the time of the offences. The victims at 13 Siddins Avenue were woken by the attempt to open the door. The victim turned a light on and saw a male standing outside near the doorway. Mr Ingray and Mr Simms then returned to the Jeep and drove away.

COUNT 17 - 15 BATTERY STREET, CLOVELLY, ON 29 JANUARY 2019 - ENTER LANDS WITH INTENT TO STEAL - s.114(1)(d) of the Crimes Act 1900

At about 5.20am, Mr Ingray and Mr Simms parked the Jeep outside 14 Battery Street in Clovelly. The victims at 15 Battery Street were asleep inside.
Mr Ingray and Mr Simms exited the vehicle and entered the property at 15 Battery Street. Mr Simms tried to open the doors to the Porsche and Mercedes vehicles on the driveway. Mr Ingray and Mr Simms walked around the side of the house and opened a partially opened window. This noise caused one of the victims to wake up and go downstairs.
Mr Ingray and Mr Simms ran to the Jeep and drove away.

COUNT 18 - 33 MARKET STREET, NAREMBURN, ON 31 JANUARY 2019 - AGGRAVATED BREAK, ENTER AND STEAL KNOWING PERSON THERE - s.112(2) of the Crimes Act 1900

At about 2am on Thursday, 31 January 2019, Mr Robert Josephsen, aged 32, and Ms Lily Cumberland, aged 29, were asleep in their residence at 33 Market Street in Naremburn.
Mr Ingray, Mr Cavanagh and an unknown male attended the residence in the stolen Jeep, registration CSP 90C.
The three males exited the vehicle and entered 33 Market Street through the closed but unlocked front door.
The three males rummaged through the property and stole the following items:

$1,500 in Australian currency
Passports in the names of Lily Cumberland and Robert Josephsen
Floor safe
RM Williams wallet
Four x car keys to the victims' vehicles
Antique pocket watch with 24 carat gold chain
USB drives with company accounting files
Commonwealth/NAB chequebooks
Two x silver wrist chains
Nixon Zillamatic (silver watch)
Nixon Magnacon (black watch)
Hugo Boss white/gold watch
Several gold and silver collector Olympic coins

Ms Cumberland was woken by the noises and saw the three males inside her house. She woke Mr Josephsen, who ran downstairs. One of the males had opened Mr Josephsen's Mercedes with the stolen keys. When Mr Josephsen exited the house, one of the males was seated in the driver's seat and Mr Ingray was seated in the passenger seat. Mr Josephsen yelled at them, and they exited his vehicle and ran away.
Mr Josephsen chased Mr Ingray and caught hold of him. Mr Ingray escaped from Mr Josephsen, causing Mr Josephsen to fall and he sustained scraping to the right‑hand side of his body. At some point, Mr Josephsen ripped off a piece of Mr Ingray's shirt.
Mr Ingray and one of the males began walking back towards Mr Josephsen. Mr Josephsen picked up a shovel from the front of his residence.
One of the males yelled at Mr Josephsen.
One of the males drove the Jeep over to where Mr Ingray and the other male were standing. Mr Ingray entered the driver's seat of the vehicle, and the other male also entered the vehicle. Mr Ingray sped away.
The incident was observed by neighbours.
Ms Cumberland later participated in a photo ID procedure in which she identified Mr Ingray as one of the offenders.
The ripped piece of shirt contained DNA for which Mr Ingray could not be excluded as the major contributor.
When the Jeep vehicle was recovered by police on 26 February 2019, police located the door to the floor safe which was stolen during this offence. DNA matching Mr Cavanagh was found on the door.

COUNT 19 - 16 CENTRAL AVENUE, MOSMAN, ON 5 FEBRUARY 2019 - AGGRAVATED BREAK, ENTER AND STEAL KNOWING PERSON THERE - s.112(2) of the Crimes Act 1900 - [On Form 1C to be taken into account when sentencing in respect of Count 21, to be referred to hereafter]

At about 3.15am on Tuesday, 5 February 2019, Mr Jun Wang, aged 53 and Ms Lucy Xiao, their two children, and a friend, were asleep inside their residence at 16 Central Avenue, Mosman.
Mr Ingray and Mr Simms and the co‑accused male A drove in a stolen Holden with NSW registration VZP 67C and stopped near the residence. The three males were acting in a joint criminal enterprise to steal from the residence. Mr Simms and male A exited the vehicle and entered the residence via a closed rear sliding door.
Mr Simms and male A rummaged through the house and stole the following items:

Three x designer handbags
One school bag
18 carat gold Omega watch
Silver Omega watch
Sunglasses
Two mobile phones

Mr Simms and male A exited via the front door and entered the Holden which Mr Ingray drove away.
Some of the stolen items were located at the Matraville residence upon a search after Mr Ingray was arrested.

COUNT 20 - 53 SEAFORTH AVENUE, SEAFORTH, ON 5 FEBRUARY 2019 - ENTER LANDS WITH INTENT TO STEAL - s.114(1)(d) of the Crimes Act 1900

At 3.45am Mr Ingray, Mr Simms and male A arrived at 53 Seaforth Crescent in Seaforth. This address is a 5‑minute drive from 16 Central Avenue in Mosman. All three males exited the vehicle and entered the lands at 53 Seaforth Crescent. The victims were asleep inside the residence.
The three males attempted to open the doors of the victims' two Mercedes and attempted to open a side gate that led to the rear of the property. The three males appeared to spot the CCTV cameras at the residence and then left the location.

COUNT 21 - 32 SEAFORTH CRESCENT, SEAFORTH, ON 5 FEBRUARY 2019 - AGGRAVATED BREAK, ENTER AND STEAL KNOWING PERSON THERE - s.112(2) of the Crimes Act 1900 - plus Form 1C

Mr Ingray and Mr Simms and male A went across the road to 32 Seaforth Crescent where Mr Tony Hung and his family were asleep in their residence. The three males removed a flyscreen, forced the window, and entered the residence.
The three males rummaged through the house and stole the following items:

Keys for Toyota LandCruiser
Keys for Mercedes Benz ML250
Beo brand wireless earphones
Portable phone charger
Tub of pre-workout powder

The three males exited by the front door and used the keys to the Mercedes to steal three pairs of sunglasses. The three males then drove away in the stolen Holden with NSW registration BZP 67C.

COUNT 22 - 10 GUTHRIE STREET, CREMORNE, ON 5 FEBRUARY 2019 - AGGRAVATED BREAK, ENTER AND STEAL KNOWING PERSON THERE - s.112(2) of the Crimes Act 1900 - [on Form 1C to be taken into account in respect of Count 21 previously ss to]

Mr Ingray and Mr Simms and male A drove to 10 Guthrie Street in Cremorne. This address is a 20‑minute drive from 32 Seaforth Crescent in Seaforth. The victims, Martin Poole, and his wife and their three children were asleep upstairs in the house.
At least one of the three males broke into the house through a locked side door, rummaged through the house and stole the following items:
A black wallet containing a driver's licence, three NAB Visa cards, a NAB debit card, an Opal card, personal papers, and $100 cash

A car key for a Toyota Prius
A set of house and office keys
A car key to a Mercedes Benz
A blue leather wallet containing a driver's licence and $100 cash
Two Apple MacBook laptops
An iPad Pro and keyboard
A Samsung tablet
A Lumix Panasonic digital camera
Sony Handycam
Canon PowerShot camera
Apple iPhone 4
Apple iPhone 5S
Apple iPhone 6
Charging cords
Kathmandu backpack
Dyson vacuum cleaner
Pair of Coach brand sunglasses

The victims noticed the theft at 6.30am when they awoke.

COUNT 23 - 68 JOHNSON PARADE, SOUTH COOGEE, ON 9 FEBRUARY 2019 - ENTER LANDS WITH INTENT TO STEAL - s.114(1)(d) of the Crimes Act 1900

COUNT 24 - LARCENY

[Each of Counts 23 and 24 are contained on Form 1D to be taken into account when sentencing in respect of Count 26, to be referred to hereafter]
At about 1am on Saturday, 9 February 2019, Mr Elvis Sanhueza was asleep in his residence at 68 Johnson Street, South Coogee.
Mr Ingray and Mr Simms drove in the stolen Holden motor vehicle registration VZP 67C and stopped next to Mr Sanhueza's Porsche, which was parked on the road. They exited the Holden and opened the unlocked Porsche. They stole the following items from the Porsche:

Hugo Boss sunglasses
Gold wedding ring
Tie clip
Keys
Garage door remote

Mr Ingray and Mr Simms then drove a short distance in the Holden before stopping. They exited the vehicle and entered onto the victim's lands. They attempted to use the stolen key from the Porsche to open the front gate to the residence without success. Mr Ingray and Mr Simms then drove away in the Holden.

COUNT 25 - 17A FINUCANE CRESCENT, MATRAVILLE, ON 9 FEBRUARY 2019 - ENTER LANDS WITH INTENT TO STEAL - s.114(1)(d) of the Crimes Act 1900

Mr Ingray and Mr Simms arrived at 17A Finucane Crescent in Matraville at about 1.53am. The victims were asleep in this residence. Mr Ingray remained at the front of the premises and put gloves on his hands while Mr Simms shone a torch into the windows and the victims' two vehicles and attempted to open the vehicles' doors. Mr Simms also attempted to open the front door to the residence. Mr Ingray and Mr Simms intended to steal from the residence.

COUNT 26 - 17 FINUCANE CRESCENT, MATRAVILLE, ON 9 FEBRUARY 2019 - AGGRAVATED BREAK, ENTER AND STEAL KNOWING PERSON THERE - s. 112(2) of the Crimes Act 1900 - plus Form 1D

Mr Ingray and Mr Simms walked onto the neighbouring property at 17 Finucane Crescent. Mr Elias Poulos, Ms Vinishia Saneja, aged 46, and their two children were asleep in the residence.

Mr Ingray and Mr Simms looked into the windows of Mr Poulos's Subaru before forcing open the garage door and entering the residence. Mr Ingray and Mr Simms rummaged through the house and stole the following items:
Keys to Subaru registration CPB 53P
DA Milano branded wallet containing Mr Poulos's personal cards
$150 of Australian currency
House keys
Key to a Toyota HiAce
Swarovski pen
Red leather Guess handbag
Coach branded wallet belonging to Ms Saneja containing her personal cards and gift cards
White and red flower print Leona Edmiston handbag
Two mobile phones
Diwali Festival one ounce silver coin

Mr Ingray and Mr Simms left the residence and drove away in the stolen Holden with New South Wales registration BZP 67C.
Mr Ingray and Mr Simms returned in this vehicle at about 3.29am. Mr Ingray and Mr Simms used the stolen keys from the residence to steal the Subaru registration CPP 53P at this time. The vehicle contained three pairs of sunglasses and one child seat.

SCOUNT 27 - 52 BUNDOCK STREET, RANDWICK, ON 18 FEBRUARY 2019 - AGGRAVATED BREAK, ENTER AND STEAL KNOWING PERSON THERE - s.112(2) of the Crimes Act 1900

At about 3.28am on Sunday, 10 February 2019, Mr Anthony Fatouros, aged 70, and his wife, were sleeping in their residence at 52 Bundock Street, Randwick.
Mr Ingray and the co‑offender male B and an unknown male arrived at the residence in stolen Holden motor vehicle with NSW registration BZP 67C. All three males exited the vehicle and entered the property by a closed rear gate. They opened a closed garage door and entered the garage, which contained a car.
The three males smashed one of the car windows and stole the following items from the vehicle:

Dashcam
Virgin frequent flyer card
Bluetooth headphones
A vest and gloves
Keys
Two x prescription sunglasses

Mr Ingray had possession of the stolen Bluetooth headphones upon his arrest on 14 February 2019.

COUNT 28 - 4 JAMES COOK ISLAND, SYLVANIA WATERS, ON 12 FEBRUARY 2019 - ATTEMPT AGGRAVATED BREAK AND ENTER WITH INTENT TO STEAL IN COMPANY - s.113(2)/s.144A of the Crimes Act 1900

At about 3am on Tuesday, 12 February 2019, Mr Romeo Georges, aged 43, and his son Mr Georgio Georges, aged 21, were asleep in their residence at 4 James Cook Island, Sylvania Waters.
Mr Ingray and Mr Simms, male A and male B, arrived in a vehicle. They exited the vehicle and approached the residence. One of the males attempted to open the front door using a tool. Another male began opening a bedroom window, where Georgio Georges was sleeping. The male reached inside the window. This woke Georgio Georges and he said, "Who's that?" The males then left the property and drove away in the vehicle.

COUNT 29 - 38 FOWLER CRESCENT, MAROUBRA, ON 13 FEBRUARY 2019 - ENTER LANDS WITH INTENT TO STEAL - s.114(1)(d)

s.166 related offence (Sequence 43) drive while unlicensed

At 1.04am on Wednesday, 13 February 2019, Mr Simms advised Mr Ingray by telephone that he was near his residence. Police surveillance officers observed Mr Ingray and Mr Simms to meet and take the stolen Holden (which now had stolen number plates affixed) from its location near the Matraville residence. Mr Ingray was observed to be driving. They drove to Brighton-le-Sands where an unknown male entered the vehicle.
The three males drove to 38 Fowler Crescent, Maroubra, where the victims were asleep in their residence. All three males exited the vehicle and entered the lands, where they attempted to gain entry to the residence. After several minutes they ran back to the Holden and drove away.
The three males parked the vehicle in an underground car park in Maroubra and they were picked up in another vehicle which was registered to Mr Ingray's sister. They were driven in that vehicle to the Matraville residence.

COUNT 30 - ARREST OF MR INGRAY ON 14 FEBRUARY 2019 - DRIVE CONVEYANCE T AKEN WITHOUT CONSENT - s.154A(1)(a) of the Crimes Act 1900 - s.166 related offence (Sequence 44) drive while unlicensed

At about 6.30am on Thursday, 14 February 2019, police observed Mr Ingray driving the stolen BMW with NSW registration POW 97N in Matraville with Mr Brown as a passenger, although he is referred to in the agreed facts as "male B".
Mr Ingray parked the vehicle and he and male B (Mr Brown) walked towards the Matraville residence. Mr Ingray and male B were arrested.

OBJECTIVE SERIOUSNESS

Although it is not necessary in respect of offences to which there is a relevant standard non‑parole period provided, all parties have made submissions in all cases referring to the midrange of objective seriousness and where the individual offence falls on such a range. I will adopt the common language and approach.

COUNT 1 - 16 CENTRAL AVENUE, MOSMAN - s.122(2) (HAINES AND INGRAY PLEA INDICTMENT COUNT 19 ON FORM 1C TO COUNT 21) Victim Impact Statement Jung Wang Tab 28.

The total value of the property stolen was $22,800, of which only $3,000 was recovered from insurance. Mr Wang and Ms Xiao were accordingly $19,800 out of pocket as a result of the offence. Some unspecified items were recovered when Mr Ingray was arrested. The Victim Impact Statement does not refer to being stressed or anxious as a result of the offending occurring while the victims were asleep in the house, but it is inevitable in circumstances such as this that victims become stressed and anxious as well as feeling a lack of security as a result of offences in these circumstances. The offence was committed in company.
In the circumstances, I assess the offence as falling just below the mid-range of objective seriousness for such an offence.

COUNT 2 - 53 SEAFORTH CRESCENT, SEAFORTH - s.114(1)(d) (INGRAY PLEA INDICTMENT COUNT 20)

There is no Victim Impact Statement. The offenders apparently desisted when they realised there were CCTV cameras. Nothing was stolen and there is no evidence of any damage to property. The offending occurred in company.
I assess the matter as falling at the low end of the range of objective seriousness.

COUNT 3 - 32 SEAFORTH CRESCENT, SEAFORTH - s.112(2) (INGRAY PLEA INDICTMENT COUNT 21)

There is no Victim Impact Statement. While there is no evidence as to the value of the stolen property it is not likely to be very high. There is no evidence as to any damage to the property. There would have been considerable inconvenience in obtaining new keys to the motor vehicles. The offence was committed in company while the victim and his family were present and asleep. It can be inferred that there was an expectable degree of anxiety and stress as well as a feeling of insecurity.
I assess the offence as falling below the mid-range of objective seriousness, for offences of this nature.

COUNT 4 - 10 GUTHRIE STREET, CREMORNE - s.112(2) (INGRAY PLEA INDICTMENT COUNT 22 ON FORM 1C TO COUNT 21)

The Victim Impact Statement of Martin Poole is at Tab 29.
The victim, Martin Poole, and his wife and three children were asleep in the premises at the time of the offence. The offence was committed in company. There is minimal evidence as to the value of property stolen but it included expensive electronic items, such as mobile phones, digital cameras and laptops, as well as personal identification materials, driver's licences, debit and credit cards as well as car keys to a Toyota Prius and a Mercedes Benz. The victims were out of pocket by $1,000 after an insurance claim and there must have been considerable inconvenience and concern because of the personal identification documents and bank cards taken with expectable anxiety, stress, and a lack of feeling of security, which can be inferred.
I assess this offence was approaching the mid-range of objective seriousness for such offences.

COUNT 5 - 52 BUNDOCK STREET, RANDWICK - s.112(2) (INGRAY PLEA INDICTMENT AT COUNT 27)

The victims, Anthony Fatouros and his wife, were asleep in the premises at the time of the offence. The Victim Impact Statement of Anthony Fatouros is at Tab 31. Excess to repair the car window was $800, travel expenses while the car was being repaired were $450, property insurance excess was $2,000 and new keys and locks or additional locks were $500 involving the victims in a total expense of $3,750 after what was retained on insurance claims. The Victim Impact Statement indicates considerable ongoing stress and anxiety as well as sleep disturbances.
I assess this offence as being below but approaching the mid-range of objective seriousness for an offence of this nature.

COUNT 6 - 4 JAMES COOK ISLAND, SYLVANIA WATERS - s.113(2) (INGRAY PLEA INDICTMENT AT COUNT 28 s 113(2)/s.344A)

The victims, Romeo Georges, and his son, were present in the house at the time of the offence. The offence was committed in company. There is no evidence of actual damage. The offence was discontinued when the victims became aware, and as a result nothing was stolen.
I assess this as being well below the mid-range of objective seriousness for such an offence.

COUNT 7 - 24 WARRINA AVENUE, CARINGBAH SOUTH - s.112(2)

The victims, Mr and Ms Powell, were asleep in their home at the time of the offence. The offence was committed in company. The Victim Impact Statement as provided by Nicole Powell is at Tab 33. The victims were out of pocket by $7,760 and considerably inconvenienced by having to replace their licences and security cards as well as obtaining new keys, significant anxiety, stress, and sleep disturbance was caused, as well as a feeling of lack of security.
I assess this matter as approaching the mid-range of objective seriousness for an offence of this nature.

COUNT 8 - 24 WARRINA ROAD, CARINGBAH SOUTH - s.154F

A typical offence of this nature, and there is no utility in ascribing to it a particular level of objective seriousness as the objective seriousness of such offences falls within a very narrow range. In this matter not only was the BMW stolen but it was shortly thereafter used in the commission of Counts 9 and 10.

COUNTS 9 AND 10 - MARRICKVILLE - s.91(1)

A Victim Impact Statement was provided by Ms Deignan at Tab 34. The Deignans were terrorised and intimidated by the conduct. There has been ongoing substantial fear of being carjacked and a diminished feeling of safety but no actual physical injury. Although it was an unsuccessful effort, it was significant and continuing, while locating the target vehicle must have been fortuitous.
The offences were clearly coordinated between the offenders' vehicles which acted with purpose and in cooperation and continued at high speed to follow the Deignans even after Mr Deignan had managed to avoid the attempted capture of the Deignans and their vehicle. It is not possible on the evidence to determine whether the object was to rob them of the vehicle or of any property they may have in the vehicle or on them.
I assess, in the circumstances, this matter as falling in the low range of objective seriousness in respect of each of Counts 9 and 10. I also note that if I was proposing to provide separate sentences in respect of these two offences, I would have made them entirely concurrent because, in my view, the sentence for one would adequately reflect the criminality involved in both. I have taken that into account in determining the aggregate sentences.

COUNT 11 - MATRAVILLE - s.154A (1)(b)

Mr Brown was aware that the BMW was stolen as he was a party to that offence as part of a joint criminal enterprise (Counts 7 and 8) and of the use that had been made of it after the theft (Counts 9 and 10). As with stealing a motor vehicle, there is a very narrow range of objective seriousness and little utility in delineating the offending as falling at any particular part of that range.

INGRAY - PLEA INDICTMENT COUNTS OBJECTIVE SERIOUSNESS - [EXCLUDING COUNTS 16, 20, 21, 22, 27 AND 28 ALREADY DEALT WITH AS TRIAL INDICTMENT COUNTS 1, 2, 3, 4, 5 AND 6]

COUNT 1 - 29 NEEWORRA ROAD, NORTHBRIDGE, 29 NOVEMBER 2018 - s.112(2)

Roland Wong and his wife and children were asleep in their house at the time of the offence. The offenders were in company. A Victim Impact Statement was provided by Ronald Wong at Tab 20. Among the items stolen were identification documents and various bank and other cards as well as the keys to a Mercedes C63, which was also stolen and eventually located approximately seven months later, burnt out and beyond repair. The costs to the victim after insurance and to restore and upgrade security were a total of $21,040. A high level of ongoing stress and anxiety and a feeling of lack of security were occasioned.
I assess this matter as falling in the mid-range of objective seriousness.

COUNT 5 - SIR BRAXTON CHOCOLATE BAR - 2/13-19 BRYANT STREET, ROCKDALE, 5 JANUARY 2019,

Entry was obtained by breaking the glass front door then unoccupied at 4.30am and stealing a CCTV hard drive, $4,935 cash from a register and damaging badly a safe while trying to gain access to it.
I assess this as approaching the mid-range of objective seriousness. Attached to this Count is Form 1A, taking into account Sequences 8, 51 and 73 or Counts 2, 3 and 4 on the plea indictment relating to:

BP Service Station, South Hurstville, 14 December 2018 - s 112(2)
Supabarn store, Annandale, 27 December 2018 - s.112(2)
Black Star Pastry, Rosebery, 5 January 2019 - s.113(2)

COUNT 6 - 61 WOOLCOTT STREET, EARLWOOD, 7 JANUARY 2019 - s.112(2)

Mr Georges El Azzi, his wife, and two children, were asleep in their home at the time. The offenders were in company. The Victim Impact Statement was provided by Ms El Azzi at Tab 21. It indicates significant ongoing anxiety, stress and sleeplessness. Insurance excess, replacement and upgrade of security measures led to a total out‑of‑pocket expense of $9,350.
I assess this offence as approaching the mid-range.

COUNT 7 - 81 RIVERVIEW STREET, RIVERVIEW, 14 JANUARY 2019 - s.114(1)(d)

Mr and Ms Cooley and their two children were asleep in the house at the time of the offence. The offence was committed in company but not continued due to alarm being raised by the victims' dog. There was no damage and there is no Victim Impact Statement.
I assess this as being in the low range of objective seriousness for such an offence.

COUNT 10 - 15 STEWART STREET, NORTH BONDI, 21 JANUARY 2019 - s.112(2)

Mr and Ms Michael and their children were asleep in the house at the time of the offence. The offence occurred in company. A Victim Impact Statement was provided by Ms Michael at Tab 23. It indicates substantial stress and anxiety. There was an insurance excess for property and car of $1,500, locks and door damage $1,000 and an alarm upgrade of $2,500 and installing a new front gate $22,000.
I assess this as falling in the mid-range of objective seriousness, although of course not all of those expenses were a necessary expense as a result of the offence, but also as a result of the decreased feeling of security. (Attached to this Count is Form 1B which refers to Sequences 55, 56 and 17 or Counts 8, 9 and 14, being

17 Gabee Street, Malabar, on 20 January 2019, s.112(2), and
the motor vehicle stolen from 17 Gabee Street - s 154F, and
the motor vehicle stolen from 7 Invan Street, Maroubra, on 29 January 2019 s.154F

COUNT 11 - 267 BELGRAVE ESPLANADE, SYLVANIA WATERS, 22 JANUARY 2019 - s.112(2)

Mr and Ms Demian and their three children and a granddaughter were all asleep in the house at the time of the offending. The offence was committed in company. There is no Victim Impact Statement. $4,000 damage was caused to the garage door. A rear door was forced open, triggering the alarm. $2,900 cash was stolen as well as other contents of a wallet. The offenders fled when Mr Demian called out.
I assess this matter as falling in the mid-range.

COUNT 12 - 205 TRAFALGAR STREET, ANNANDALE, 25 JANUARY 2019 - s.112(2)

Mr Langford and his wife were asleep in the premises at the time of the offence. The offence was committed in company. House and car keys were stolen but there was no damage. The Victim Impact Statement was provided by Mr Langford at Tab 24. House locks and keys had to be replaced at cost of $900. As all keys to the two vehicles had been stolen, there was considerable delay and inconvenience in obtaining new central control units and keys for the vehicles. The insurance excess was $3,000.
I assess this offence as approaching the mid-range of objective seriousness.

COUNT 13 - 2 WATERSIDE CRESCENT, MAROUBRA, 29 JANUARY 2019 - s.114(1)(d)

The offence was committed in company. The offenders were unable to open the garage door but caused $9,000 damage to it. The Victim Impact Statement was provided by Mr Mosca at Tab 25, citing ongoing stress and anxiety, as could be expected.
I assess this offence as falling below the mid-range of objective seriousness.

COUNT 15 - 11 SIDDINS AVENUE, PAGEWOOD, 29 JANUARY 2019 - s.114(1)(d)

COUNT 16 - 13 SIDDINS AVENUE, PAGEWOOD, 29 JANUARY 2019 - s.114(1)(d)

At each home, the residents were home and asleep. The offending occurred in company, but no access was obtained and no property stolen or damaged.
I assess each of these offences as falling at the low end of objective seriousness for such offences.

COUNT 17- 15 BATTERY STREET, CLOVELLY, 29 JANUARY 2019 - s.114(1)(d)

At attempt to gain access to the house and to a Porsche and a Mercedes, which was abandoned when one of the victims was awoken. The offence occurred in company.
I assess this as falling at the low end of objective seriousness.

COUNT 18 - 33 MARKET STREET, NAREMBURN, 31 JANUARY 2019 - s.112(2)

Mr Josephsen and Ms Cumberland were asleep in the premises at the time of the offence. The offences occurred in company. The Victim Impact Statement was provided by Robert Josephsen at Tab 27. Personal documents, cash, jewellery, and sentimental items were stolen as well as car keys to two vehicles. The insurance excess, replacement of car keys, replacement of locks and cameras, and towing totalled out of pockets of $8,000. The Victim Impact Statement of Lily Cumberland indicates high stress levels and six months of panic attacks.
I assess this offence as falling in the mid-range of objective seriousness.

COUNT 20 - 53 SEAFORTH CRESCENT, SEAFORTH, 5 FEBRUARY 2019 - s.114(1)(d)

The victims were asleep in the premises. The offending was in company, but the offenders were apparently deterred by observing the presence of CCTV cameras and discontinued. There was no damage to property, and nothing taken.
I assess this offence as being at the low end of objective seriousness for such an offence.

COUNT 21 - 32 SEAFORTH CRESCENT, SEAFORTH - s.112(2)

Mr Hung and his family were asleep in their residence. The offence occurred in company. I note there is no Victim Impact Statement and there is no evidence of any property damage, but considerable inconvenience must have been caused in that the keys to the two motor vehicles were part of the property stolen. There is no evidence as to the value of the stolen property, but it is unlikely to be very high.
I assess this matter as being below the mid-range of objective seriousness for such an offence. (Attached to this count is Form 1C, taking into account Sequences 24 and 74, or Counts 19 and 22, being 16 Central Avenue, Mosman, 5 February 2019 s 112(2) and 10 Guthrie Street, Cremorne, 5 February 2019 s 112(2)).

COUNT 25 - 17A FINUCANE CRESCENT, MATRAVILLE, 9 FEBRUARY 2019 - s.114(1)(d)

The victims were home and asleep at the time. The offence was in company; however, access was not obtained to either of the two motor vehicles or the house and there is no evidence of any damage to the property or the vehicles.
I assess this offence as falling at the low end of the range of objective seriousness.

COUNT 26 - 17 FINUCANE CRESCENT, MATRAVILLE, 9 FEBRUARY 2019 - s.112(2)

Mr Elias Poulos and Ms Vinishia Saneja and their two children were present and asleep. The offence occurred in company. Personal documentation and other items were stolen as well as keys to motor vehicles including a Subaru which was also stolen.
The Victim Impact Statement was provided by Ms Saneja at Tab 30. Multiple items of high sentimental value were stolen. The Victim Impact Statement indicates ongoing stress, anxiety, depression, and sleeplessness as well as fear and a feeling of lack of security. The stolen items were such that could be used for the purpose of identity theft including the purchase of items. Attempts were made to access the victims' bank accounts and make false credit applications. There is no evidence as to who was responsible for this activity, but it could not have occurred in the absence of the stolen personal documentation.
I assess this offence as falling in the mid-range of objective seriousness. (Attached to this Count is Form 1D taking into account Sequences 28 and 29 or Counts 23 and 24, being 68 Johnson Parade, South Coogee, 9 February 2019 s.114(1)(d) and s 117).

COUNT 27 - 52 BUNDOCK STREET, RANDWICK, 10 FEBRUARY 2019 - s 112(2)

This has already been assessed in respect of Count 5 on the trial indictment and I have found it was below but approaching the mid-range.

COUNT 28 - 4 JAMES COOK ISLAND, SYLVANIA WATERS, 12 FEBRUARY 2019 - s.113(2)/s.144A

This has already been assessed for Count 6 of the trial indictment as being well below the mid-range.

COUNT 29 - 38 FOWLER CRESCENT, MAROUBRA, 13 FEBRUARY 2019 - s.114(1)(d)

The victims were asleep in the residence, but the offenders failed to gain entry and left. The offence occurred in company.
I assess this offence as being at the low end of the range of objective seriousness for such an offence.

COUNT 30 - MATRAVILLE, 14 FEBRUARY 2019 - s.154A(1)(a)

Mr Ingray was driving the stolen BMW POW 97N with Mr Brown as a passenger. The vehicle had been stolen as part of a joint criminal enterprise on 12 February 2019 from Mr and Ms Powell at 24 Warrina Road, Caringbah South. As I have previously indicated I would refer to the objective seriousness as simply being par for the course in relation to a stolen vehicle, that being a very narrow range of appropriate seriousness.
I note in respect of what I have said about the objective seriousness of the offences that although I have regularly referred to the persons being present in the premises that is a matter taken into account on the nature of the charges under s 112(2). It is not an aggravating circumstance; it is part of the circumstances covered by the section however in relation to these offences they have all been committed in company which in fact an aggravating circumstance according to the legislation.
Where the offence has been an offence where the section refers to the offence as being in company, that is not an aggravating circumstance because that is already taken into account by the section.
I indicate that although I ceased referring to the maximum sentence available pursuant to the legislation after dealing with the trial counts and any, if any, relevant standard non‑parole period, that was simply as a matter of convenience and to try and shorten to some extent what I had to achieve in relation to this matter by way of expressing reasons.
However, the schedule which will be attached to these reasons sets out in each case the maximum sentence provided and where appropriate the standard non‑parole period including those offences which are contained on Form 1A, 1B, 1C and 1D, and the four s 166 certificate matters. The schedule also sets out the indicative sentences in respect of each offence as I propose to proceed by way of an aggregate sentence in relation to each of the three offenders. In respect of the four s 166 matters a separate sentence will be specified.

SUBJECTIVE MATTERS - AARON BROWN

The subjective matters are drawn from the Sentence Assessment Report of Jennifer Priest dated 18 August 2021; a letter from his mother, Pamela Brown, dated 13 April 2021 and the evidence of Pamela Brown given on 20 August 2021; a letter of his younger sister, Kimberley Brown, dated 8 April 2021; a letter of Paul Brown, chairman of La Perouse United Men's Aboriginal Corporation dated 9 April 2021; a letter of Herman Smith, Aboriginal male consultant with the Bulwal Mayawaar Mriral dated 11 April 2021; a letter from Dr A Stewart for Dr Kathir (AMO) St Vincent's Hospital dated 9 April 2021 and supplied medical certificate; and, an email from Dr Alice Stewart dated 9 April 2021; a letter from Ms Casley Aroler of the Oolong Aboriginal Corporation dated 13 April 2021; the offender's criminal history and a Corrective Services Conviction, Sentence and Appeals Report. Subjective matters are drawn from that material.
The offender did not give evidence at trial or on sentence.
The offender, Aaron Brown, was born on 15 May 1992 and turned 29 on 15 May 2021. He was 26 years of age at the time of the subject offences which took place between 5 February 2019 and 14 February 2019. He was on parole at the time of each offence. The information supplied as to his background is somewhat limited, sparse and occasionally conflicted in terms of verified facts but some detail is filled in by his mother and sister.
His mother had lived in an otherwise unidentified small, remote Aboriginal community on the New South Wales south coast with little in terms of support services and access to health care providers. She was drinking during her pregnancy, being ignorant of foetal alcohol syndrome disorder (FASD) and she reports that at 32 weeks of pregnancy she was sent to Sydney because of obstetric complications.
The offender's father left when the offender was one year of age. The offender grew up in the La Perouse area. He had two siblings, a brother (now deceased) and a younger sister, Kimberley. His brother died in 2014. In her letter to the Court his sister describes herself as a public speaker, a writer, and the subject of a documentary. The offender's education is said to have been troubled. He is said to have been diagnosed at primary school when he was five or six years of age as having traits associated with FASD: poor behaviour and cognitive skills, health and learning difficulties, problems with memory, attention, cause and effect reasoning, impulsivity, and language difficulty.
By the age of ten, his mother describes him as also having major health concerns with unexplained pain, seizures, loss of sensation, decreased alertness, muscle weakness, severe migraines for which she says he had been heavily medicated "right through" to his adolescence.
Towards the conclusion of the trial in respect of the subject offences he absented himself from court in April 2021 prior to the jury returning its verdicts, breaching his bail conditions and ultimately, after his departure from Sydney, attracting a bench warrant from which he was eventually arrested in August 2021. At first his legal representatives requested an adjournment citing what was described as a syncopal episode needing some period of observation at St Vincent's Hospital to determine the cause. The letters from Dr A Stewart and Dr Kathir from St Vincent's Hospital, dated 9 April 2021, the medical certificate, and the email from Dr Alice Stewart of the same date, indicate that he had been admitted and was being observed to try and establish the cause of the syncope.
After the jury had returned its verdicts, the offender released himself from the St Vincent's Hospital but did not surrender himself and remained at liberty until a later date. Having released himself from hospital he apparently departed from Sydney to country New South Wales to an unidentified place.
I note that in relation to syncope, syncope simply means fainting, there can be many causes such as serious ones, like heart problems, or, alternatively, just standing up quickly may cause fainting.
From a recent matter that has been before me I am aware that it is common for young females travelling on Sydney trains that are crowded, perhaps in the absence of having breakfast, to faint in summer, usually treated by simply giving them somewhere to sit in a cooler spot for a period of time. Despite the fact that the offender was retained in hospital for a number of days before releasing himself, no report has been provided to indicate what was the cause of his syncope; that is, whether it was some simple cause such as standing up quickly or whether it has some more significant background.
In addition, there is no medical report which refers to him as having been affected in his childhood from Foetal Alcohol Syndrome Disorder, simply his mother's assertion that he was. That is not to say that her assertion is false. It would have been of assistance if proper medical reports could have been provided to the Court so that it could make its own assessment as to the offender's particular problems. It is said that during his primary school his behaviour had become more aggressive, and his mother also said that he dropped out of school altogether during Year 10 of secondary school.
Year 10 of secondary school is referred to in the defence submissions, but according to his mother he in fact left school in the second year of secondary school; that is, Year 8. He is said to not be able to read or write well but has completed a TAFE certificate in panel beating. His employment has been sporadic and for the most part casual. According to the defence submissions he has worked as a dogman/rigger, a construction labourer and field officer with National Parks and Wildlife Service before obtaining full‑time work in the past as a ranger at La Perouse.
When he was approximately 10 years of age his mother separated from her then partner and she began to drink on a daily basis. During that period his mother confirms that she had multiple partners and she describes the situation of family and domestic violence, alcohol abuse and in a wider social context drug abuse, particularly of cannabis, as common in her extended family and the community. During his childhood he had an unstable home life, the family moving house regularly on at least six or seven occasions, "We were always on the move, you know, escaping, you know, all the other stuff." (Domestic violence).
The offender was exposed to domestic and family violence particularly post separation and to alcohol and drug abuse in the community. His sister, Kimberley, describes the family as feeling "some guilt" about the decisions which led the offender down the path of crime and addiction. She describes drugs, alcohol and gambling addictions within the family and social environment and claims that because he was older, Aaron was exposed to more family violence than she was and that he tried to shelter her from that violence. His mother says that he had no good "role models", no security, and that he missed out on care and health‑related matters.
His mother eventually escaped the domestic violence, "got on the straight and narrow" and obtained an administrative job which she held for eight years at the Prince of Wales Hospital. The offender's mother and his partner of 11 years and his sister have all expressed their ongoing support for Mr Brown. To the SAR officer, Mr Brown reported positive relationships with his partner and his parents and expressed his intention on being released from custody to reside in Matraville with his partner and their son. Letters from his sister and the two Aboriginal men's organisations with which he has become involved, the Bulwal Mayawaar Mriral and the La Perouse United Men's Aboriginal Corporation, also expressed their intention of providing ongoing emotional and practical support to the offender.
As to substance abuse, his mother first noticed that he was using drugs when he was approximately 13. His extensive criminal record dates from 2007: when he was 14 years of age he was sent to juvenile detention and according to his mother, in her letter to the Court, "from then his life spiralled out of control right through to adulthood." According to the defence submissions he first consumed alcohol at 14 years of age. The offender was involved in poly‑drug abuse from the age of 12. According to the defence submissions he used cannabis, ecstasy, and amphetamines. He began to use ice at 16 and was addicted to ice up to the age of 27.
He regularly smoked heroin from 17 years of age, and he became methadone dependent. His drug use escalated after the sudden death of his brother in 2014 when the offender was approximately 22 years of age. The offender claims to have been using drugs daily and to have been affected by drugs at the time of the offending. Despite the "more aggressive" behaviour Ms Brown noticed at primary school, both his mother and his partner claim to have never seen the offender exhibit any violent behaviour, "his partner advising that she was very surprised when she learnt of the details of some of the offences Mr Brown had been convicted of."
His mother describes him as "a caring, compassionate individual who is always willing to help anyone in need. He has strong family values, is supported and is well liked among his peers." His mother claims to have seen a change in her son since he became a father, and that he has discussed wanting to be a positive role model and not wanting his son "to go down that same path" of criminal offending. His son was born in December 2019, about ten months after the subject offences, while the offender was in custody. His sister states that he has found that circumstance very difficult and that he has confided in her "that he has been struggling with depression as he feels responsible for adding trauma to his partner, Jane, while he was in prison."
Those sentiments are echoed by Herman Smith, the Aboriginal male consultant at Bulwal Mayawaar Mriral, an organisation which combines and encourages grounding in Aboriginal culture and practice with providing peer support and advice to young Aboriginal males in the community, and practical help such as finding stable accommodation for them and their partners as well as counselling and support to young parents.
As to his criminal history, he first came to the attention of the courts in 2007 as a juvenile, at the age of 14, when he was charged with possess implements to enter, drive conveyance, custody of a knife in public place, negligent driving (not occasioning death/harm), drive conveyance taken without consent of owner, and never licensed person drive vehicle on road, first offence. He was sentenced for the first four offences at Jura Children's Court in 2008 to four s 33(1)(B) bonds of six months and in respect of the last two offences to supervised bonds for 12 months under s 33(1)(b).
From that point he has had a long record of offences such as larceny, driving, and break and enter. According to the Sentence Assessment Report, these subject offences appear to represent an escalation of offending, however the offender refused to discuss the details of the offences with the Community Corrections officer on the basis that he would be appealing the verdicts. This is referred to at p 2 of the Sentence Assessment Report, where under "Attitudes" it is recorded, "Mr Brown claimed that he took responsibility for several of the string of offences, however he declined to discuss any of the offences, stating it is his intention to appeal some of the convictions."
Under "Violence and Aggression" it states, "As Mr Brown declined to discuss the details of his offending behaviour, Community Corrections were unable to ascertain his attitude to the violent nature of some of his convictions." I note that he apparently did not disclose to the Community Corrections officer which offences that were defended on his behalf at trial he now admits that he in fact committed. He otherwise attempted to deflect, to some extent, his level of criminality by indicating that the co‑offenders were more culpable in the series of offences than himself.
As to his departing hospital and travelling to country New South Wales, the report includes the following, "Mr Brown advised that rather than attending court he made the decision to travel to country New South Wales to access treatments for his heart condition." I note again that if he has a heart condition and that was detected as a result of his hospitalisation after the episode of syncope a report could have easily been obtained from St Vincent's Hospital, but that there is no such report.
As to any insight into the impact of offending, the Sentence Assessment Report includes the following, "Mr Brown was able to articulate the detrimental effects his offending had on the victims. He described his behaviour variously as "ridiculous" and would have been terrifying for the victims, knowing someone was in your home." He was assessed as being a medium to high risk of reoffending.

SUBJECTIVE MATTERS - TONY HAINES

Before the Court are the agreed facts to the plea indictment; a psychological report of Ms Thea Gumbert dated 8 August 2021; a Sentence Assessment Report of Darren Bailey of 12 August 2021; the offender's criminal history; and a Corrective Services Conviction, Sentence and Appeals Report. The offender did not give evidence at trial and did not give evidence at the sentence hearing. Subjective matters are drawn from the above.
He was born on 17 December 1989 and was aged 29 at the time of the offences, which all took place between 5 and 14 February 2019. He is now 31 years of age. He grew up in the Redfern/Waterloo area. He is the eldest of five children. He has two sisters and two brothers. He describes his mother as having been "in and out of our lives" due to her drug use. His father apparently spent "various periods" in gaol. He remembers seeing his parents using drugs including heroin and stimulants, they were often unable to care for him or his siblings and he spent much of his time with his grandmother and several different "aunties" who took turns caring for him and his siblings.
Although he says he was treated well by his grandmother and the aunties he "felt like a burden on them" and that the constant shifting between households undermined any sense of stability. From early adolescence he reported spending less time at home and more time with his peers, stealing "to get by" and "crashing" where he could. He was homeless for periods of time. He spent multiple periods of time in juvenile detention. He sees gaol as the only stable place he has lived. having spent most of his adult life in custody. He has two daughters, now aged 16 and two.
The relationship with the mother of his elder daughter ended when he went into juvenile detention at the age of 15, shortly after the birth of that daughter. His daughter was placed in care soon afterward and he has had no contact with her for over a decade. His second daughter was born from a relationship he had during his last parole period, which was of a short duration, and I will later refer to that.
At school he reports a history of learning difficulties, struggling with literacy, and finding it hard to keep up in class although he liked sports. In class "I was just elsewhere". He attended the Redfern Public School until Year 5 when he was expelled for fighting. He briefly attended the Waterloo Public School and the Bourke Street Public School, but was expelled from each after a few weeks, again for fighting. He then attended Alexandra Park School but was expelled in Year 6 or 7 for intervening in a fight between two other boys.
He then went to Penrith to live with an aunt and attended Cranebrook School where he states that he was bullied enough to be threatened by another student. He brought a knife to school and was, as a result, suspended. After that he spent his time with a delinquent peer group because he "just didn't go back" to school.
He has had further education in correctional centres including TAFE literacy courses, certificates in logistics, test and tagging electrical devices, but he has only ever had one job outside of custody as a part‑time delivery person for the Tribal Warrior organisation, which was, again, during his most recent parole period. He has a history of poly‑substance abuse and dependence, heroin being the most problematic, and claims to have begun smoking cannabis at 14 and to have never really stopped. During his period in the community, he would use "as much as I could get".
In custody he used illicit heroin. He claims that most of his previous offences were committed out of financial need because of his addiction. I note that may be an explanation for offending, but it is not an excuse. He has had limited intervention or treatment regarding drug use. For a brief period in 2019 he commenced the buprenorphine program, but because it caused insomnia and he was otherwise not committed to the treatment, he relapsed to using heroin. He states that the psychologist has applied for him to attend inpatient rehabilitation programs, but he has been rejected due to his convictions for violent offending.
He spent much of his adolescence in juvenile detention, serving sentences of a few weeks or months until making bail, and at some times he was promised bail, but no one would sign him out. He claims to have been sexually abused by one of the Corrective Services officers during a strip search during a period of juvenile custody. He did not disclose this until 2020 and is currently involved in an attempt to obtain compensation. He has a history of multiple orthopaedic injuries including a broken wrist and an ankle which he claims were occasioned by police assaulting him, and that he subsequently broke his wrist in a gaol fight which caused him to need a bone graft in 2019.
During a fight in the community in 2012 he claims to have been coward-punched and to have lost consciousness and broken his jaw which required the insertion of five plates. He subsequently grew a beard which he still maintains, or was still at least at the time of trial, to hide the scars. As to his mental health, he reports ongoing trauma as a result of the sexual abuse in custody as a juvenile, and that he has struggled to avoid and repress intrusive memories of that abuse, also experiencing nightmares and acute distress when reminded of it. Having disclosed the abuse in 2020 he has not yet received any assistance or treatment in respect of that abuse.
He claims that in part his use of drugs was to self‑medicate. He has received a psychological assessment, apparently as part of his compensation case ,and the clinician opined that he had PTSD. He stated that he had no other mental health issues apart from transient depression. He has no history of self‑harm or suicide attempts and while in custody he has not sought any further contact with Justice Health psychiatry or psychology services since his previous assessment. He said that his prior contact in that regard had not been helpful and that he was "not sure I trust them".
Ms Gumbert, psychologist, had regard to Family and Community Services' file reports dating from 2005 when Mr Haines was 15 years of age which elaborated on his family circumstances, including descriptions of the family home as being squalid and unhygienic, there was no bedding for the children and his parents being in a cycle of drug and alcohol abuse with a spiralling deterioration of parenting capacity, and the mother being physically aggressive towards the Family and Community Services officers and the children. The children's lifestyle was described as transient with absenteeism from school, with the children informing the FaCS officers that they were sometimes unable to attend school because they had no lunch or shoes.
Mr Haines, however. currently has regular contact with his mother and sister by telephone and he indicated to the Community Corrections' officers that he has support from his family, especially his sister. The psychologist described him at the time of the assessment, which was by way of AVL, as being orientated, lucid, coherent, and cooperative over the period of one hour. There was no sighting of motor disturbance and appropriate concentration was noted. He did however present as highly distressed at times, "struggling to cope with his ongoing incarceration" and his conviction of the index offences, of which he claimed he was innocent and that he was "falsely convicted on the basis of tendency evidence, coincidence and mistaken identity."
He also complained that he was poorly represented by his counsel, that the jury was instructed that the offences were a joint criminal enterprise, and that if they convicted one accused, they should convict them all. He also indicated to the psychologist that he intended to appeal the convictions, as he had also indicated to the officer conducting the sentence assessment. He has made a number of other assertions about his co‑accused and his dealings with them, and as to his being mistakenly identified in CCTV footage when it was in fact another person of similar appearance.
I note his criminal history commenced as a juvenile when he was approximately 16 years of age. There were three offences of goods in personal custody, enter vehicle or boat without consent, and failing to appear, all of which were dealt with by bonds. As an adult in 2009 he was sentenced for offences in 2008 of aggravated robbery and attempting to dispose of property, theft. His longest sentence was five years and three months with a non‑parole period of three years and six months; that sentence expired on 9 March 2013. In 2014 he was sentenced for an offence in 2013 of steal from a person to 13 months' imprisonment commencing 27 March 2014.
There were further offences committed in 2013 of receive property - theft - dishonestly obtain financial advantage (five counts), especially aggravated break and enter and commit serious indictable offence (wound). The aggregate sentence imposed for the longest sentence was six years with a four year, four month non‑parole period: that sentence was to expire on 5 July 2020, so he was in fact released to parole on 25 November 2018 before commencing to commit these offences on 5 February 2019; that is the aggravating circumstance of committing offences while on parole and commencing to do so within the period of two and a half months while on parole.
The Sentence Assessment Report also records under "Attitudes", "Mr Haines appears to be in denial of committing some of the current offences by stating 'I have been convicted of offences I didn't do.' Mr Haines reported he would appeal once sentencing has completed."
He also stated to the officer that his offending behaviour of breaking and entering has been for financial gain to fund his own drug habit. Again, as I have previously noted, that may be an explanation, but it is not an excuse.
As to insight into the impact of the offending, it is recorded, "Mr Haines showed little insight into his offending by denying he had been involved in some of the current offences." He was due to commence the EQUIPS Foundation program on 12 August 2021. Whether he commenced that or completed it is not information before me. The report of Darren Bailey was dated 12 August 2021. He was assessed as being a high risk of reoffending.

SUBJECTIVE MATTERS - WAYNE INGRAY

Available to the Court is a Sentence Assessment Report by Raquel Smith, dated 18 August 2021, a psychological report of Dr M Sidhu dated 4 August 2021, the affidavit of Raymond Ingray dated 17 August 2021, a Custody Management Record from Waverley Petty Sessions from 15 December 2019, his criminal history and a Corrective Services Conviction, Sentence and Appeals Report. The offender did not give evidence at trial, nor did he give evidence on sentence. Subjective matters are drawn from the referred-to material.
He was born on 14 January 1995 and was accordingly 24 at the time of the trial offences, which all took place between 5 February and 14 February 2019. He is now 27 years of age. He grew up in the La Perouse area as the youngest of six siblings; he has three older sisters and two older brothers. His parents worked for the Community Development Employment program under the Work for the Dole program based at Yarra Bay House, La Perouse. His mother was involved in a catering enterprise and his father was involved in a horticultural and landscaping program.
He informed the psychologist that his parents both filled voluntary roles in the Aboriginal Land Council and although he describes his childhood as difficult, he says that he "always had clothing and a roof with a good family." He was, however, often hungry. He claims that there was no violence within his immediate family, who "got on really well." His parents were never incarcerated nor were his sisters, but his older brothers have spent time in custody and members of his extended family "regularly" went to gaol.
The environment in which he grew up was said to be impoverished in a Housing Commission community where crime, deprivation and violence were ever present requiring frequent attendance of Family and Community Services and police. Early on, he is said to have witnessed robberies and car thefts taking place. He described to the psychologist being frightened by the community violence around him, and that at 10, he saw a cousin being glassed in the face. At that time, he began getting into fights "to protect myself, you can't seem like you're weak."
From the age of nine, he says he developed a negative attitude to police whose presence was resented in the La Perouse community and who would "regularly pull us over and take us home." His cousin, Raymond, describes the La Perouse Aboriginal community at the time as "not like it is today. There was a high level of antisocial behaviour including violence, break and enters, theft and alcohol and drug abuse and the physical appearance of the community reflected this." I have no difficulty in accepting that description given by his cousin.
At school, Mr Ingray is said to have enjoyed classes, especially mathematics, and to have been "okay in lessons. I did my work." From the time he was 11, he had begun to fight and then to truant on a regular basis, going to the beach with his peers instead of school. His cousin suggests that this was in part for fun and also in part because they could hunt and fish and feed themselves, but "as they got older the children turned to more criminal types of activities including stealing food from homes, shops and restaurants."
The offender's problematic behaviour escalated to the point where at the age of 11 his parents sent him to live with his uncle; that is, Raymond Ingray's father, who was his mother's older brother, a chef who owned his own home who had escaped his own violent upbringing to become almost a surrogate father to his younger siblings when he was a teenager after the death of his own father (the offender's grandfather, who was described as "not a nice man - the family suffered from alcohol-fuelled domestic violence, child removal by authorities occurred, and the children were affected by this trauma,")
The offender stayed with his uncle's family for about a year, during which time he attended school, played rugby league, travelled extensively through New South Wales, and participated in family and community events. Raymond Ingray states, "My father was known to be strict, and you had to live by a certain set of rules…. I believe Wayne welcomed the structure, rules and routine that came with living with my parents." The offender made similar comments to the psychologist, and appreciating the fact that the time with his uncle got him away from La Perouse and resulted in some improvement in his behaviour and performance at school in that period.
Raymond Ingray in fact worked at the school as a teacher and so transported Wayne Ingray each day. He described him at school as being "polite to staff and students and would actively participate in schoolwork despite being behind the benchmark for his age and excelled in subjects when it was put into a context he could understand. Maths in daily context was a favourite program." Apparently, while he was at school, Raymond Ingray would "check up on him" which he found supportive, and at that school he relished the opportunity to make new friends and there were "no issues" during that period; that is, there was an absence of fighting and truancy and a growing interest in sports.
However, after the one year he returned to live with his mother, apparently because she "missed being with him every day," as referred to by Raymond Ingray. The offender told the psychologist that he maintained his positive behaviour for approximately three to four months after returning. but then fell back into his former pattern of truancy and smoking cannabis within the context of negative peer influences.
Shortly after his return to live with his mother in La Perouse. when he was 12 years of age, his mother died suddenly of a brain aneurysm, she being around the age of 40. This loss was shocking and substantial as she had been seen as a nurturing, stabilising figure, and a linchpin to the extended family.
After her death, Raymond Ingray refers to the family unit as collapsing because the offender's father "became a bit of a recluse and disengaged from the world", creating a void in the offender's life, and giving him freedom to hang with relatives and other children who were already engaged in criminal and antisocial behaviour. Raymond Ingray describes his cousin's teenage years as being when his antisocial and criminal behaviour escalated, and during that period Raymond Ingray saw him infrequently but did hear that he was using illicit drugs.
The offender informed the psychologist that when his mother died, he and one of his older brothers "went off the rails completely, 'smoking cannabis and stealing cars'," and were in trouble for such crimes as trespassing, resisting arrest, shoplifting, and driving‑related offences. He was sentenced to a number of short terms in juvenile detention, his longest being for six months, and his brother was in juvenile detention around the same time. Raymond Ingray states "I recall around this time Wayne talking about going to "juvie" being a good thing as he would feel safe, have a bed to sleep in and guaranteed meals each day."
However, by the age of 16, he had graduated to more serious offending: aggravated break and enter, common assault, assault occasioning actual bodily harm, destroy or damage property, robbery in company, robbery with weapon, larceny and the escalation of offending continued to adulthood, he having been sentenced as an adult to terms of imprisonment on a number of occasions. He is said to have spent a cumulative period of nine months in the community since his 18th birthday, and 'reflected that gaol was not a deterrent for him as it was just continuing what was going on outside. "My friends were in (gaol) too and we did things just as on the outside."'
While in juvenile detention, around the age of 13, the offender claims that he was the subject of an incidence of sexual abuse, being anal rape by one of the staff. He did not disclose that at the time, but has recently instructed a lawyer, and the allegation is currently being assessed. He indicated that the effect of that abuse was to reinforce his distrust of authority figures and that his substance abuse increased after that assault, as prior to the assault he had only been using cannabis, but afterwards he began using pills and "anything I could get in juvie."
Apparently, he was able to obtain and began to use Xanax and ecstasy while in juvenile detention, which is of course tragic, but it has long been recognised that neither juvenile detention nor adult custody is impervious to the infiltration of prohibited drugs or prescription drugs not prescribed to those who wish to use them. He claimed to have used alcohol to excess, being 1 litre per day between the ages of 14 to 16 but stopped when he began to use ice at that time, although in other material, he refers to beginning to use ice at 18 years of age.
He informed the psychologist he began to use heroin daily, smoking it, (not using it intravenously) at the same time as commencing to use ice. He claimed to have been spending $800 to $1,000 per week on substances. To the Sentencing Assessment Officer, he said he spent $3,000 to $4,000 per week on substances. He also said that his offending was directly related to the need to make money quickly to support his addiction; that is contained in the Sentence Assessment Report under the heading of "Attitudes".
He claims to have been under the influence of drugs when he committed the offences; that is, the ones that he has pleaded guilty to rather than the ones that he continues to claim he did not commit, and he stated that if he was not under the influence the offences would never have occurred. He also claims to have been smoking heroin daily at the time of the offending and to have stopped his opioid treatment. He is said while in custody to be currently engaged with a methadone program for the first time but claims that it slows him down and that he prefers Suboxone, which he had previously been on at some unstated time.
He is apparently currently under the care of the drug and alcohol team in custody, back on the opioid treatment, and will remain in that treatment program until released. He has apparently expressed a willingness to attend programs to address his use of illicit drugs. He is said to have had past problems with gambling and spending sums of $1,500 to $2,000 on poker machines at a single sitting and hiding his gambling from his friends and family, however he is said to have ceased gambling because he had insufficient funds for both gambling and the purchase of illicit substances.
At the age of approximately 12 and a half, he went into juvenile detention which ended his school life, but in custody he has completed Year 10 as well as a number of training courses including a bricklaying certificate, white card and he has also completed the Aboriginal Art Certificate II and III. He has apparently never worked in the community but has held roles while in custody such as working with the hygiene crew, maintenance, and textiles and also in what is referred to as "picking and packing". He claims to enjoy "getting in there and doing stuff."
He informed the psychologist that on release he hoped to relocate to the south coast, where there was some family residing, in order to sever his connections with antisocial associates in Sydney. However, his cousin Raymond, in contrast says, "I know he wants to be close to the La Perouse Aboriginal community to be close to his son and he is aware of the challenges that come with living in Sydney." The offender has also said that when released from custody he intends to reside with his father and work with his cousin Raymond, who has his own business and who has offered him employment, work relating to transport logistics and administration.
His two-year-old son was born on 12 August 2019 while the offender was in custody. The child was the result of an on‑off relationship which commenced when he was approximately 18 years of age. It broke down because of the offender's periods of custody. The child, Xavier, was removed from his mother by FaCS at around six weeks of age but was eventually placed in the care of the offender's cousin, Raymond Ingray, and his wife, who as of April 2021 have been granted guardianship until Xavier reaches the age of 18.
The offender indicated to the Community Corrections' officer that he one day hoped to gain custody of his son but he accepted that it was a positive for his son that he was placed with his cousin Raymond and his family, as it was a stable family and a loving one and "that he does not wish to disrupt his son's life as he has been with the family since he was two weeks old and it is all he has ever known, and he believes his son's needs would be best met if he remained in his current kinship arrangement." The offender said that his cousin "does not have a criminal history or any addiction history and this is good for my son." Mr Wayne Ingray "still hopes to have a strong relationship with his son and is motivated by this to change his current trajectory."
There appears to be some contradiction between that statement and Mr Raymond Ingray's account of the circumstances in which he and his wife came to have guardianship of Xavier, which refers (at para 26) in part to: "Xavier was removed from his mother's care by FaCS when he was around six weeks old and placed into foster care along with his two older sisters. In March 2020 Xavier was placed in full kinship care and then guardianship in April 2021. My wife and I have care of Xavier until he is 18 years of age."
I note Raymond Ingray indicates that he has been managing to place Xavier and the offender in daily contact while the offender has been in custody and has observed that the offender has endeavoured to encourage positive outcomes for his son. Of course, as is common currently in custody, face‑to‑face visits in the time of COVID are relatively rare if they occur at all.
Like his co‑offenders, that is, Mr Brown and Mr Haines, Mr Ingray claims that he did not commit the offences he was charged with and convicted for at trial. In respect of the offences to which he entered pleas of guilty, he conveyed to the psychologist and the Community Corrections' officer his insight into the impact of the offending as follows: "Mr Ingray acknowledged that his actions [have] stripped away his victims' safety; he stated at the time of the offences he was only focused on money and nothing else, however since coming into custody and getting clean he has had time to reflect on his actions and stated that he hates knowing he has caused in his victims stress and pain because of his addiction."
As to his previous response to supervision, the report states: "Unfortunately, while he had intermittent compliance, interventions were interrupted by circumstances such as relapse, and further re-offences that rendered Mr Ingray from not completing adequate programs and interventions to address his offending behaviour. Since entering the John Morony Corrections Centre Mr Ingray has not completed any programs to address his offending behaviour. He has not come to the attention of correctional staff for antisocial behaviour."
To the psychologist he made the following statement: "Every bit about it was wrong. No one should have that experience when they are in their home.
He acknowledged to the psychologist that it "would be a frightening experience, particularly for families with children. Mr Ingray described the motivation for his offending was directly linked to his drug addiction and he did not know how else he could support his addiction. Mr Ingray denied any use of violence or use of weapons to threaten his victims."
He also attempted to minimise his guilt by claiming to have been high on each occasion of offending he pleaded guilty to, but made the following somewhat extraordinary claim, "The decision to break into properties late at night was specifically to avoid confrontation with victims as well as to avoid detection." As a matter of common sense, breaking into persons' residential premises at night is always likely to be in circumstances where they are present, and that confrontation may occur. It seems to me if Mr Ingray really wished to avoid confrontation, he would have been committing the offences when people were at work.
I note in respect of Mr Ingray's criminal history that it commenced at approximately the age of 14. His offending as a juvenile was extensive and continuing until he reached adulthood. Despite being dealt with by the appropriate leniency of the Children's Court, he was frequently called up as a result of being in breach of the orders that had been made and also a number of offences as a juvenile were of a similar, if not the same, nature as the offences that he is now before the Court for. There were a significant number of offences committed as a juvenile and his offending simply continued as an adult in much the same vein as it had been occurring as a juvenile.
I note that the Corrective Services Convictions, Sentence and Appeals Report indicates that in relation to juvenile custody he was released on 19 November 2011 from the Kariong Juvenile Detention Centre, however he was back in the Kariong Juvenile Detention Centre by 22 December 2011; that is, approximately one month later. He was again released on parole on 12 December 2012 from the Kariong Juvenile Detention Centre, being approximately one year after being taken back into custody. He only managed to stay free and in the general community until 18 March 2013; that is, a period of three months before he was in gaol for his first sentence as an adult.
He was again paroled on 22 June 2015 but returned to custody on 19 August 2015, a period of two months. He was again paroled on 4 August 2017 but was again taken back into custody on 6 September 2017; that is, a period of approximately one month in the community. He was released on parole again on 16 October 2018 but was back in custody as of 14 or 15 February 2019 as a result of this offending. The Convictions, Sentence and Appeals Report clearly indicates that the offender has spent little time in the community as an adult because of his regular commission of offences or breach of the conditions of parole order and of course he now has to be a sentenced for a large raft of serious offending.
As to each of the offenders in relation to the trial offences, there was clearly no evidence of remorse or contrition, each of the offences in respect of each of the offenders being defended, and I note that it appears to be that, even though some are now apparently admitted as having been committed, they each intend to appeal the jury's verdicts.
On the material before me, although there has been some statement of recognition by offenders as to the impact that their offending has on other persons, recognition of that impact on the victims is not necessarily indicative of being remorseful or contrite, it is simply an acknowledgment of the obvious, that the victims of offences such as this suffer consequences beyond simply the financial, although the extent of the financial impact varies, and they are also emotionally impacted.
I am unable to find on the evidence before me in relation to each of the offenders that there is any acceptable evidence of remorse or contrition. Although I note that occasionally, although rarely, in relation to these three offenders there is some reference to it in a report, such as, in the report of Ms Sidhu, psychologist, in respect of Mr Ingray, "Mr Ingray pled guilty to all but four charges. He stated that he did not commit these specific offences and had nothing to do with it, 'I wasn't even there'."
In relation to the offences Mr Ingray did plead guilty to, he expressed remorse for his behaviour and reflected on the impact on his victims, stating: "Every bit about it was wrong. No one should have that experience when they are in their home. He acknowledged that it would be a frightening experience particularly for families with children. Mr Ingray described the motivation for his offending as directly linked to his drug addiction and he did not know how else he could support his addiction. Mr Ingray denied any use of violence or use of weapons to threaten his victims. Initially Mr Ingray stated the decision to break into properties late at night was specifically to avoid confrontation with victims as well as to avoid detection."
I had already referred to some parts of that quotation, but I thought I should put them all in context. While the psychologist saw the expression of, "Every bit about it was wrong. No one should have that experience when they are in their home," as being a sign of remorse, I do not see that as being in fact a sign of remorse, rather than what I have previously referred to as, a common-sense acknowledgment of the impact of the offending.
In Mr Ingray's case in particular, he has a significant prior criminal history which includes offences of a like nature. He has been before the court on many occasions as a juvenile and as an adult. I have no doubt that he understands that purporting to express remorse is something which may have a beneficial impact on sentence. It cannot be the case that in the past when he has been dealt with for similar offending that he has not also been cognisant of the impact his offending has had on the victims, and in speaking to the psychologist in relation to this matter, in my view, he is simply mouthing a platitude that he anticipates might derive him some benefit on sentence.
As I have indicated, he did not give evidence on sentence which makes it very difficult for the Court to appreciate whether he is in fact contrite and remorseful or not. It is frequently said, and has been said by Ms Fernando on his behalf, that because he pleaded guilty to a large number of counts, that can be taken as a sign of remorse and contrition. I do not agree with that because, when carefully looked at, a significant number of those offences are matters in relation to which the prosecution had other evidence; either DNA, identification, or CCTV footage, which would appear to largely explain why those offences that he pleaded guilty to were offences that he did not like his prospects of successfully defending.
So, the pleas themselves, in my view, are not in those circumstances a sign of remorse or contrition and, I should have noted when I said that, in addition to the matters I just referred to there were of course materials found from various robberies at premises associated with him. As to each of the offenders, I accept, although for different reasons, that each has had a tragic childhood and that the factors or principles as referred to in Bugmy, Fernando and Millwood apply to them; that is, that their moral culpability because of those factors is reduced, and that accordingly the need for the sentence to provide for general deterrence is diminished.
As to the prospect of reoffending, as to each of the offenders, I have already referred to the assessments made by the Community Corrections officers as being high or medium high. I accept those assessments as being appropriate. As to the prospect of rehabilitation, in light of each of their criminal histories and the current offending and the number of offences, and the fact that a number of offences were defended by all of them at trial, I cannot find that there is a good prospect of rehabilitation, at best it can be said in each case that the prospect of rehabilitation must be guarded, particularly if any of their offences were in fact inspired by their need to finance drug addictions and those addictions are not dealt with or continue to be not dealt with.

OTHER OFFENDERS SENTENCED SEPARATELY - PARITY

I note that in respect of the two co‑offenders who were not the subject of this trial or the pleas; that is, Ty Simms and James Cavanagh, that I was provided as part of the Crown materials with the reasons on sentence of Norton SC DCJ in respect of Ty Simms and Yehia SC DCJ in respect of James Cavanagh. In respect of Cavanagh the reasons were delivered on 31 July 2020 and in respect of Simms on 30 September 2021. In addition, I was also supplied with relevant material as would have been provided particularly to Yehia J. I am fully cognisant of the issue of providing parity on sentence where there are co‑offenders and not simply between these three co‑offenders but also taking into account sentences imposed on Mr Simms and Mr Cavanagh.
I have considered all of the material that was provided to me in that respect, and I have further had the assistance of a schedule as prepared by my associate in respect of which Ms Fernando, on behalf of Mr Ingray, has taken the opportunity to reformat it in the sense of adding to the schedule, where appropriate, the actual indicative sentences determined by Norton and Yehia JJ when sentencing the co‑offenders. In my view, there are significant differences between Mr Cavanagh, Mr Simms and of course, in particular, Mr Ingray. There is a lack of commonality between the ways in which the matters were placed before the Court in respect of particular offences.
For instance, Mr Ingray may be facing a particular count with a Form 1 attached to it with several offences, or a separate offence to be dealt with on its own, whereas in respect of, for instance, Mr Simms, he was dealt with for a count with a Form 1 which included a count which is a specific matter for Mr Ingray. I accept that where there are indicative sentences provided by either of those judges it was important to look at the issue of parity and I have done so. However, in my view, there are significant differences otherwise and the overall sentence imposed on Mr Simms or on Mr Cavanagh is not, in my view, a matter from which issues of parity can be determined.
I have however taken into account in each case the indicative sentences for offences where they are common and where there is no Form 1 attaching to the offence concerning other charges.

AN AGGRAVATING CIRCUMSTANCE

Each of the offenders was on parole at the time of committing the offences.
The commission of offences whilst on parole is a significant aggravating circumstance. Parole is a privilege, and abuse of that privilege calls for a higher punishment. R v McVittie [2002] NSWCCA 344. R v Fernando [2002] NSWCCA 28 at 42. Offences committed while on parole demonstrate that rehabilitation, which parole is designed to assist, has failed, and the court cannot proceed on the same expectation of rehabilitation that is open in other circumstances.
Greg James J, in R v Huynh [2003] NSWCCA 239 stated that: "...it is a consequence of having enjoyed conditional liberty upon an undertaking to be of good behaviour that if you breach that undertaking you aggravate your culpability for the offence you commit which constitutes the breach, you surrender the prospect of liberty which you have enjoyed conditionally upon your not committing a breach and you must expect to serve in custody the sentence from the custodial nature of which you had been liberated conditionally".
In R v Moffatt (1990) 20 NSWLR 114 it was held that the offender should not only suffer the revocation of his parole and the consequent need to serve out the balance of the original sentence but should also suffer a significant punishment for the later offence to mark the gravity of his conduct in abusing his parole. I recognise that the sentencing discretion includes the ability to make the sentences imposed in this matter concurrent, partially concurrent with, or, wholly cumulative upon the sentence to which the offender was serving as a consequence of the revocation of parole for the reasons referred to by Simpson J, in Callaghan v R [2006] NSWCCA 58.In addition the concept of totality must also be taken into account.
I think I have dealt with most things, other than to simply note a number of matters in relation to the periods of time in custody.

INDICATIVE SENTENCES

Count 1. Mr Haines, there are of course no discounts for utility in respect of any of the trial matters, an indicative sentence of three years, four months with a non‑parole period of two years, six months.
As to Count 2, enter building land with intent, being 53 Seaforth Crescent, Seaforth, Mr Haines, the indicative sentence is one year of imprisonment, and I should have said in respect of Count 1 that that was 16 Central Avenue, Mosman.
As to Count 3, relating to 32 Seaforth Crescent, Seaforth, in respect of Mr Haines, the indicative sentence is three years, four months with a non‑parole period of two years, six months.
In respect of Count 4, being 10 Guthrie Avenue, Cremorne, the indicative sentence is three years, four months with a non‑parole period of two years, six months. Again, that is in respect of Mr Haines.
In respect of Count 5 in respect of Mr Brown only, 52 Bundock Street, Randwick, and the indicative sentence is three years with a non‑parole period of two years, three months.
In respect of Count 6, which is in respect of both Mr Haines and Mr Brown, 4 James Cook Island, Sylvania Waters, the indicative sentence is in each case one year, six months.
In respect of Count 7, which is 24 Warrina Road, Caringbah South, the indicative sentence in respect of each of Mr Haines, Mr Ingray and Mr Brown is, in each case, a term of imprisonment of three years, six months with two years, seven months and 15 days as the non‑parole period.
In respect of Count 8, being Mr Haines, Mr Ingray and Mr Brown, and at Caringbah South, it is the steal motor vehicle charge, the indicative sentence is three years' imprisonment in each case.
In relation to Count 9, assault with intent to rob, s 97(1), in relation to Mr Haines, Mr Ingray and Mr Brown, in each case, the indicative sentence is three years.
In relation to Count 10, which again is assault with intent to rob while in company, s 97(1), in respect of each of Mr Haines, Mr Ingray and Mr Brown, the indicative sentence is in each case three years.
I note what I have previously said: that if I was sentencing for those separately, I would have made the sentences for Count 9 and Count 10 entirely concurrent, and I will take that fact into account in determining the aggregate sentence.
As to Count 11, which is, be carried in conveyance, Mr Brown only, the indicative sentence is one year, six months
We then move onto the sentences which only involve Mr Ingray, so in relation to the matter of the plea indictment, Count 1, 29 Neeworra Road, Northbridge, the indicative sentence is three years with a non‑parole period of two years, three months
As to Count 5, 13-19 Bryant Street, Rockdale, the indicative sentence is four years, eight months with a non‑parole period of three years, six months.
In respect of Count 6 and Mr Ingray, 61 Woolcott Street, Earlwood, the indicative sentence is two years, eight months with a non‑parole period of two years.
In respect of Count 7, the indicative sentence for enter building land with intent at 81 Riverview Street, Riverview, and Mr Ingray, is nine months.
In respect of Count 10, 15 Stewart Street, North Bondi, and Mr Ingray, the indicative sentence is four years, eight months with a non‑parole period of three years, six months.
In respect of Count 11, 276 Belgrave Street, Sylvania Waters, the indicative sentence is two years, eight months with a non‑parole period of two years.
In respect of Count 12, 205 Trafalgar Street, Annandale, the indicative sentence is two years, six months with a non‑parole period of one year, ten months.
In respect of Counts 13, 2 Waterside Crescent; 15, 11 Siddins Avenue, Pagewood; 16, 13 Siddins Avenue, Pagewood; and 17, 15 Battery Street, Clovelly, the indicative sentence is nine months in each case, so that is, Counts 13, 15, 16 and 17.
In respect of Count 18, the indicative sentence re 33 Market Street, Naremburn, is three years with a non‑parole period of two years. three months.
In respect of Count 20, the indicative sentence for 53 Seaforth Crescent, Seaforth, is nine months.
In respect of Count 21, the indicative sentence for 32 Seaforth Crescent, Seaforth, is four years, eight months with a non‑parole period of three years six months.
In respect of Count 25, 17A Finucane Crescent, Matraville, the indicative sentence is nine months.
In respect of Count 26, the indicative sentence is four years with a non‑parole period of three years.
In respect of Count 27, 52 Bundock Street, Randwick, the indicative sentence is two years, four months with a non‑parole period of one year, nine months.
In relation to Count 28, being 4 James Cook Island, the indicative sentence is one year.
In relation to Count 29, 38 Fowler Crescent, Maroubra, the indicative sentence is nine months.
In relation to Count 30, at Matraville, the indicative sentence is one year, three months
Now in relation to each of the counts to which I have just referred, being 1, 5, 6, 7, 10, 11, 12, 13, 15, 16, 17, 18, ,20, 21, 25, 26, 27, 28, 29 and 30 I have given Mr Ingray a discount for the early plea of 25% in each case. In addition to that, when providing the indicative sentence in respect of Count 5, I have taken into account the matters contained on Form 1A, which were Sequences 8, 51 and 73, and the schedule contains the actual details in respect of those and their contribution to the sentence, and Count 5 also takes account of the fact that, although they are on the Form 1A, they were offences in respect of which there was an early plea, so a 25% discount was in effect taken into account in determining the effect on Count 5.
All right then, in respect of Count 10, I also took into account in determining that indicative sentence the offences contained on the Form 1B, being Sequences 55, 56 and 17. In respect of Count 26, I also took into account the offences contained on Form 1D, being Sequences 28 and 29. In relation to the four matters contained on the s 166 certificate, each being never licensed person drive vehicle on road, contrary to s 53(3), the maximum penalty, which I have not previously referred to, is 20 penalty units. In each case I provide an actual sentence for Mr Ingray pursuant to s 10A, conviction with no other penalty, so that deals with each of Sequences 41, 42, 43 and 44 on the s 166 certificate.

AGGREGATE SENTENCES

First, I will deal with Mr Brown. Mr Brown was released on parole on 6 December 2018, and within just over two months he committed the first of seven offences occurring over approximately five days, being 10 February 2019 to 14 February 2019. He was arrested for these offences on 14 March 2019 and his parole was revoked and the balance of term was served from 14 March 2019 to 12 October 2019, a period of 213 days. He was also in custody from 25 December 2020 to 4 January 2021 for unrelated matters, being a period of 11 days. He was released on bail in respect of these matters on 26 March 2020, so from 14 March 2019 to 26 March 2020 is a period of 378 days.
He was returned to custody after failing to appear at the conclusion of the trial due to hospitalisation and thereafter until again arrested and returned to custody on 7 July 2021
Taking those matters into account, I intend to allow in respect of Mr Brown half of the 378 days that he has spent in custody from 14 March 2019 to 26 March 2020, which was in effect breach of parole, a further offence and also custody as a result of his arrest on 14 March 2019. I am going to allow 189 days; so, 189 days backdated from when he was returned to custody on 7 July 2021: that gives a starting date for the sentence of 30 December 2020.
The aggregate sentence for Mr Brown is a sentence of five years and six months with a non‑parole period of one year, one month and 14 days. Accordingly, the sentence commences on 30 December 2019, and he first becomes eligible for parole on 12 February 2025; that is, four years, one month and 14 days later. The full-term of the sentence, five years and six months, expires on 29 June 2026.
In respect of Mr Haines, as a result of these offences and his arrest on 28 May 2019, and because of a superficial response to parole supervision and non‑compliance with various requirements of parole, his parole was revoked to date from 28 May 2019. The balance of his revoked parole sentence expired on 28 October 2019. In addition, he was sentenced on 6 November 2020 for a May 2019 aggravated break, enter and steal in company, for which he received a term of imprisonment of three years, four months commencing 28 October 2019 and concluding 27 February 2023 with a non‑parole period of one year eight months concluding on 27 June 2021.
So, from 28 May 2019 to 27 June 2021, he was serving the balance of parole and a fresh sentence and a period of 762 days. From 28 June 2021 to today he has been in custody only in relation to these charges. I will backdate the sentence to allow approximately half of the period of 28 May 2019 to 28 June 2021; that is, 381 days, so the aggregate sentence will commence 381 days after the date of his arrest; that is, it will commence on 12 June 2020. The aggregate sentence is a term of imprisonment of six years, six months with a non‑parole period of four years seven months. He will accordingly be first eligible for parole on 11 January 2025. The full term of the sentence will expire on 11 December 2026.
The statutory relationship between the non‑parole period and the balance of term has been varied to take into account the period of continuous custody by reducing the non‑parole period to slightly less than 75% of the total continuous served time. If he is released on the expected date of 11 January 2025, the balance of term will be one year and 11 months before the full sentence expires on 11 December 2026. Does anyone need that repeated?
As to Mr Ingray, on 17 July 2018 Mr Ingray was sentenced at Waverley Local Court for offences of aggravated break and enter in company with intent to steal, assault police x two, and resist or hinder police. All of these sentences were concurrent, with the longest being one year commencing 17 April 2018 and expiring on 16 April 2019 with a six month non‑parole period expiring on 16 October 2018. He was released on parole on 16 October 2018. He was arrested in respect of these offences on 14 February 2019 but had commenced reoffending by 29 November 2018, approximately one and a half months after being released on parole.
As a result of his arrest for these offences and because of borderline ongoing non‑compliance with his parole conditions, his parole was revoked commencing from 7 January 2019. The balance of that sentence expired on 23 May 2019. I will allow approximately half of the balance of term served as a result of revocation of parole. Accordingly, the aggregate sentence will commence on 1 April 2019. The aggregate sentence is 11 and a half years with a non‑parole period of eight years. I have reduced the non‑parole period from the statutory relationship to the balance of term by seven months and 15 days to provide for three and a half years of parole.
Although he is only likely to be supervised on parole for three years as provided by the regulations, I have done so having regard to his age at the time of offending, being 23, and because the sentence is of necessity a substantial one. A longer period of parole may assist in addressing rehabilitation with maturity although his past record of criminal offending and his interaction with the criminal justice system in a most unsatisfactory fashion in the past is not encouraging of that prospect. The non‑parole period of eight years is, in my view, the minimum period of time that Mr Ingray should be required to serve in the circumstances of the significant level of offending demonstrated by his raft of mostly serious offences.
In determining the aggregate sentences, I have in each case of course taken into account all of the matters that I have referred to, including the maximum sentence provided, the standard non‑parole period where it is provided for an individual count, and I have also taken into account the principle of totality as referred to in Pearce. In effect, with the exception of continuous time in custody, I have not found special circumstances except in respect of Mr Ingray, and particularly because of the lengthy sentence that it was necessary to impose.
Because there were a significant number of offences - and this particularly applies to Mr Ingray but also applies to Mr Brown and Mr Haines - against different persons or premises on entirely separate and different occasions, even though some of those different offences occurred on the same night as part of a continuing course of criminal conduct, it was of necessity that there was a degree of accumulation between the indicative sentences to arrive at the final aggregate sentences, with the exception of what I have referred to in respect of Counts 9 and 10.
I have, as I have previously indicated, had regard to the sentences that were imposed on Mr Cavanagh and on Mr Simms by Yehia DCJ and Norton DCJ, particularly the indicative sentences in their sentencing procedure. If I did not say it before, I intend to make a copy of Ms Fernando's adaptation of the Court's schedule to refer specifically to the sentencing and the indicative sentences provided for Mr Simms and Mr Cavanagh, and if I did not say it before, that will be whatever the next MFI is, and a copy will go into the Crown bundle just so that it remains there for any appeal. In my view, it was relevant to all three offenders rather than simply Mr Ingray.

24JAN22 Schedule in re Sentences of Haines Brown + Ingray (147456, doc)

Amendments 12 July 2022 - Amended to annex Schedule of Charges DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 July 2022

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