HIS HONOUR: Now Mr Burns do you mind standing up for a moment. I tell people in advance what sentence I am going to impose then you can sit down of course. I have got a lot of reasons to give but I like people to know in advance what they are going to get.
I know you are only interested and Mr Usher is only interested in the bottom line. I appreciate that and the complexities of s 21A Crimes (Sentencing Procedure) Act are not of particular interest to you.
In relation to count 1, when I say count it is not a count in your case it is the aggravated break and enter with intent. You know the charge on 10 October 2013?
ACCUSED BURNS: Yep.
HIS HONOUR: You know that one. In relation to that offence I am proposing to sentence you to three years imprisonment back dated to 28 December 2014. In other words giving you credit for the time you have spent in custody up until the present time. Now I know you have served other sentences, but I have actually back dated 61 days I think. I have given you the benefit of a day. In relation to that sentence at the moment I do not need to fix a non-parole period.
In relation to count 2 that is the most serious offence the aggravated break and enter with intent. I am going to sentence you to four and a half years imprisonment and I am going to accumulate that on the first sentence by six months. So that leaves a total sentence of five years and I am going to fix in relation to that sentence a non-parole period. I have to fix a non-parole period under the provisions of the Act where there is a standard non-parole period. In any event I am going to fix a non-period of two years, six months. So effectively you are going to serve five years with a three year non parole period in relation to all the offences backdated giving you due credit for the time in custody, backdated to last December. Remembering you were on bail for a period of time, you know that and then you went back into custody and served sentences from 9 September. You understand that?
In relation to the deal with proceeds of crime I am going to sentence you to two years and six months entirely concurrent with a non-parole period for count 2. So you can sit down. That sentence Mr Burns represents a 25% discount on the otherwise appropriate sentence.
Mr Usher. In your case you get a discount of 10%. As you know your late plea, but the commencement date of your date sentence is a bit earlier than Mr Burns. Your sentences will effectively date from 18 April 2014. Now the starting point for count 1 which is the aggravated break and enter is a bit higher than Mr Burns because you have got the matter on the Form 1 that I have got to take into account. With the discount of 10% I am going to sentence you to five years, ten months in relation to that matter dating from 18 April 2014.
In relation to the charge concerning use of proceeds of crime for the purchase of the car, you receive two years six months imprisonment. That sentence dated from the 18 April 2014, entirely concurrent with that non-parole period.
Now in relation to your non parole period, the total non-parole period is going to be 60% same as Mr Burns. 60% of the total sentence, including the six month non-parole period that you served for the drive whilst disqualified. I have got to factor that into the sentence. So your effective non parole period is in relation to the aggravated break and entering and stealing matter three years three months and that will date from 18 April 2014. That will mean you will be eligible for release to parole on 17 July 2017. So you become eligible for parole on my calculation a couple of weeks after Mr Burns. The reason that you are so close together in that regard is that you have spent more time in custody than him, but he has got a bigger discount than you and I have also balanced off all the other competing matters.
You can sit down. So effectively you are going to be sentenced to five years ten months with an effective non-parole period in relation to that sentence of three years three months, but with your other non-parole period the effective non-parole period is three years nine months. That partial accumulation is a special circumstance and I will give my reasons and make the relevant orders. I will require you to stand up when I make the orders but naturally you can just sit there. Do you want a glass of water, it is going to take some time. Do you want a cup of water?
ACCUSED USHER: Yes please.
HIS HONOUR: Can we give both men a cup of water please. I know I am going to need one. Now I just want to clarify one thing about Mr Burns, it is not a major thing. His name Aarin is that the correct spelling?
STEWART: Yes that is right.
HIS HONOUR: Normally it is spelt slightly different.
Aarin Burns and Richard Usher each appear today for sentence in respect of a number of matters which are common to them both and in respect of which they in various ways are liable as participants in joint criminal enterprises concerning each charge.
The particulars of the charges they each face and the manner in which they are prosecuted and the circumstances in which they appear in this Court however are somewhat different. To start with Mr Burns. He pleaded guilty at the Local Court to three charges and was committed for sentence to this Court.
These charges in order in which I will pronounce the sentences and in chronological order are firstly, an aggravated break and enter with intent to steal contrary to s 113(2) Crimes Act (1900), which according to the Crown's cover sheet and which I accept carries a maximum penalty of 14 years imprisonment. It has no standard non-parole period.
He also pleaded guilty to a charge of aggravated breaking entering and stealing contrary to s 112(2) Crimes Act (1900), which carries a maximum penalty of 20 years imprisonment with a standard non-parole period of five years.
The third matter for which he was committed for sentence is a charge of knowingly deal with proceeds of crime contrary to s 193B(2) Crimes Act, which carries a maximum penalty of 15 years imprisonment and has no standard non parole period. As he pleaded guilty at the first reasonable opportunity he is entitled to a discount of 25% upon the otherwise appropriate sentence in relation to each charge and in accordance with the guideline judgment of R v Thomson and Houlton [2000] NSWCCA 309, to recognise the utilitarian benefit of his pleas of guilty.
Mr Usher as I understand it was committed for trial, presumably by paper committal. On the occasion that his trial was listed to proceed, at least in the sittings in which the trial was listed to proceed, he pleaded guilty to two charges either identical to or very similar to two of the charges pleaded guilty to by Mr Burns at the Local Court.
He pleaded guilty on arraignment on a charge of aggravated breaking entering and stealing committed no 13 October 2013. In effect an identical charge as charged against Mr Burns, although with somewhat more specific particulars. He also pleaded guilty to a charge of engaging in a transaction with proceeds of crime to wit $13,890 being part of the proceeds of the breaking entering and stealing matter.
That charge is brought against him under the same section as the charge of dealing with proceeds of crime against Mr Burns, but has somewhat different particulars. The particulars in relation to Mr Burns would allege that he dealt with the full proceeds, over $90,000, of the aggravated breaking entering and stealing offence.
The breaking entering and stealing offence was committed on 13 October 2013 and in the case of both prisoners the dealing with proceeds of crime is pleaded to have occurred on the same date. The aggravated break and enter with intent to steal occurred three days earlier on 10 October 2013.
In respect of that matter Mr Usher requests that it be taken into account on a Form 1 when sentencing for the principal offence, that is the breaking entering and stealing in company matter, which I will shortly after I refer to as aggravated break and entering and stealing.
The offence on 10 October, that is the matter on Mr Usher's Form 1 and the matter to which Mr Burns pleaded guilty at the Local Court obviously on the facts has direct relationship to the offending in the principal offence.
Having regard to what I was told by the Crown and by the counsel for Mr Usher and Mr Burns, notwithstanding the fact that Mr Usher obviously did not plead guilty to all the charges for which he was committed for trial, and allowing for the fact that close to the trial he received some fresh material from the Crown that, as I understand it, persuaded him to plead guilty, in the context of the principles and the guideline judgment of Thomson and Houlton earlier referred to, I am prepared to grant him a discount of 10% upon the otherwise appropriate sentences for the matters where terms of imprisonment are to be imposed.
Although the prisoner may have changed his motivation for pleading guilty with this fresh material and although the pleadings and particulars were somewhat different to the co-accused Mr Burns, at the time that Mr Burns appeared at Local Court, ultimately the matters to which Mr Usher pleaded guilty to and which he admits his guilt for are matters for which he was committed for trial. Thus the utilitarian value of the pleas is largely to be assessed by regard to the timing of them rather than other factors that may arise or in other circumstances may be relevant. To my mind changes of particulars between the committal for trial and the arraignment of the accused are of little significance. In fact they are of so little significance nobody bothered to bring any such matter to my attention. It is a matter that I had to address independently.
In any event, if there had been some issue in relation to particulars this is what judges are here for not juries. It could have been dealt with by a disputed facts hearing. One of the peculiarities of the particulars as I earlier mentioned is that the dealing with proceeds of crime charge in the case of Mr Burns involve dealing with the $90,815 in cash that was the proceeds of the aggravated breaking entering and stealing matter. The particulars as I said in relation to Mr Usher involve a much lesser sum. None of the money has been recovered, although of course $13,890 of it is accounted for with the purchase of the motor vehicle by Mr Usher that is the essence of count 2 in this indictment.
In relation to the two prisoners the facts I have been presented are in somewhat different form and have considerably different detail. In fact it was a little unclear in the facts relating to Mr Burns where he was at the time of the commission of the aggravated break and enter with intent matter. These differences however appear to me, based upon the submissions of the parties, to be matters of no controversy. It was conceded by counsel for Mr Burns that although the facts were a little ambiguous about the matter it is the case in relation to the first offence in time, the aggravated break and enter with intent matter, that he, as he did for the break enter and steal matter, drove the motor vehicle that carried the two other offenders who committed that crime including Mr Usher. Ultimately the differences in the facts reflect nothing of significance concerning the objective liability of each accused in relation to the offending.
The background of this matter was that Mr Burns had been employed as a duty manager at the Woolworths store at Mittagong before 13 October 2013. That store had a cash office as it was described with two safes which held the daily takings of the store. To get into the cash office the key was required to get into what was called the key lock box where the key to the cash office was held. The store normally closed between midnight and 1am and was partially re-opened to enable bakery staff to commence work at 2.40am.
These aspects of the operation of the store were obviously known to Mr Burns. Only particular people including managers had keys to external doors and were given the relevant security codes, safe combinations and the like. Mr Burns had access to the key lock box. He also had a security code for the alarm system and the facts state that he knew the combination for a safe in the cash office. He also, as I said, knew the routine of the store.
For reasons at the end of the day really best known for himself, the prisoner had not been at work for a number of weeks before 10 October 2013. His employer's belief was that he had abandoned his employment. Woolworths had requested him to return his keys. The facts said but he had retained them up until 13 October. He had his duty manager's keys, he knew the security code and safe combinations and none of these had been changed. This on reflection was a considerable mistake by his former employers.
The facts in relation to Mr Usher indicate that he lived a few doors down from where the prisoner lived at Glenfield in the south western part of Sydney. He and Mr Usher and Mr Burns discussed the facts states in the days before 10 October breaking into the Woolworths store and stealing money and possibly other items.
On 10 October Mr Burns provide Mr Usher with the keys to the store for Mittagong and details of the codes and combinations, location of relevant offices and the location of the keys to open up the cash office. The store closed at 1am and shortly after 2am the prisoner, Mr Burns, Mr Usher and another man who has never been identified arrived at Mittagong and Mr Usher and the other man entered the store.
Mr Burns apparently remained in the car. Mr Usher was wearing a balaclava and dark clothing to avoid identification from security cameras. The alarm was activated for some reason and the two intruders left the store without anything. This is the essence of the aggravated break and enter with intent charge.
The three men returned in the early hours of 13 October. Foolishly the alarms and their codes had not been changed. Again Mr Usher and the unknown co-offender entered the store with Mr Burns waiting in the car outside. Mr Usher again was wearing a balaclava and was carrying a bag this time. He and his co-accused managed ultimately to get into the cash office aided by the keys and the information provided by Mr Burns. They loaded up as I understand the facts two bags with notes and coins from one of the locked safes.
It would turn out that foolishly Mr Usher left Mr Burns' keys with his name on them in the key lock box along with other keys. As a result of this action one might have thought it was not very difficult for investigators to work out who had some connection with the breaking into the store and access to the cash office.
In the facts relating to Mr Usher it states that the money taken from the burglary was distributed between the three offenders. Mr Burns said in an interview initially when arrested he knew nothing about the offences. Although he did tell police apparently on the brief summary I have that some months before he had agreed with another person to stage at the store some sort of fake robbery in order for money to be taken, but backed out of the arrangement before it occurred.
He was unable to explain matters to the police such as how his keys were left at the scene, the use of his code to get into the premises, the finding of clothes that were identical to that worn by the offenders at his home. After an extension of the investigation period he became, what is described in the facts as, 'compliant' and told the account of how the burglary happened.
The prisoner however claimed he received approximately $6,000 in cash from the two offenders as his cut of the proceedings and he said he was unaware of the full amount they obtained. For reasons which are self-evident I find that very difficult to accept. He was in possession of a small amount of cannabis and amphetamine when he was arrested.
Mr Usher on the day of the break and enter and steal, that is later in the day went off to a car yard in Cabramatta and purchased a motor vehicle for $13,890, using cash from the Woolworths store. He was arrested on 18 October in Ulladulla after a search warrant had been executed in his home two days before and items associated with the burglary were located. He did not admit to being involved in any of the offences.
As I said earlier neither man has provided details in relation to the identity of the third person, but the Court could not readily conclude that that person kept $70,000 which is not accounted for at the moment. It would be ridiculous to reach that conclusion. The best that can be said is that the Court cannot conclude beyond reasonable doubt precisely what each offender received, but the Court is entitled to be circumspect in accepting Mr Burns account and that Mr Usher's proceeds from the robbery was the cash he used to buy the car.
Ultimately, although the matters are pleaded somewhat differently, to my mind the two prisoners are equally liable in respect of all three offences subject of course to the presence or otherwise of relevant aggravating factors arising under s 21A Crimes (Sentencing Procedure) Act (1999) or otherwise and relevant mitigating matters.
I heard little to suggest otherwise in the submissions of the parties. Although the prisoner Burns has pleaded guilty to dealing with the entire proceeds of the break enter and steal matter, the facts do not establish that he was the only person who was the beneficiary of that sum and the second count in the indictment relating to Mr Usher conclusively shows that it is so.
The dealing with the proceeds of crime was intimately bound up in the criminality involved in the primary offence and he, Mr Usher, and the man who has not been made accountable for his crime are equally responsible for the theft of the money as part of a joint criminal enterprise.
In this regard as I subsequently will indicate I propose to approach the matter in the way in which it was urged by me by Mr Burns in so far as the treatment of the offences committed on 13 October. Noting of course the decision his counsel referred me to of R v Stewart [2005] NSWCCA 290.
Notwithstanding the particulars I could not conclude beyond reasonable doubt that Mr Burns benefitted in relation to the sum of money received any greater than any of the other offenders. In fact his dealing with the proceeds of crime particularised was truly a transitory matter save for whatever he received himself.
Mr Burns was born in December 1978 and Mr Usher was born in November 1981. So there is little to distinguish between them in terms of either their youth or age maturity. Mr Burns has a relatively minor criminal history with some findings of guilt at Moss Vale Children's Court and Campbelltown Local Court in the late 1990s and a mid-range PCA and a possess prohibited drug matter in 2000.
Prior to committing the offences with which I am concerned he had never been gaoled, he had never been previously subject to what was then Probation and Parole Service supervision, now Community Corrections supervision by way of probation or parole. Since being charged, however, in relation to the current matters he was in custody from the date of his arrest, that is 14 October 2013 until his release on bail on 11 December 2013. This is calculated to be a period of 58 days. There has been three days since that time to make a total of 61 days in custody solely referrable to this matter and I will take that into account.
It would seem very clearly, however, that for Mr Burns his life had gone considerably sour since he committed this offence and particularly whilst on bail in relation to these matters. I have noted from going through his criminal history that he was charged with having goods in custody suspected of being stolen on 29 May 2014 and apparently was sentenced on 8 September 2014 to three months imprisonment for some reason commencing on 9 September 2014 concluding in December 2014.
Subsequent to May 2014 he was charged with possessing house breaking implements, although it is a little unclear when he was charged. When he appeared at court on 9 September 2014 in relation to that matter he was sentenced to four months imprisonment to run concurrently with the other sentence of three months. That sentence concluded on 8 January 2015.
Whilst apparently in custody in relation to those matters it appears he was charged with bringing or introducing a small quantity of a drug into a detention centre. He was apparently on 25 November sentenced to three months imprisonment for that offence commencing either on that date, or 25 November, but expiring on 24 February 2015. That means since coming back into custody after being released on bail in relation to current matters he has been primarily serving terms of imprisonment for offences committed whilst on bail in relation to the current matters. How that could have been permitted to occur, that is how the prisoner could not have been returned to custody for some of those matters having been already charged and on bail in relation to current matters is a mystery. But this is a mystery not of the prisoner's making as best I can work out.
Also, he was charged on 26 August 2014 with driving under the influence of alcohol or other drug and possessing some sort of prohibited drug. I assume methylamphetamine, but I am not quite sure, for which he failed to appear at court on 14 October 2014. The reason he did not appear obviously was because he was in custody in relation to other matters. What happened in the dealing of that matter I have not been informed.
These convictions subsequent to the commission of the current offences with which I am concerned seem to me to reflect in part the deterioration of his drug use and attitude since his involvement in the commission of these offences.
The Community Services reports, there are two because one had an error about his previous supervision, reflected upon the fact that the prisoner's had difficulties with prohibited drugs in recent years. Although there have been fluctuations in his use of cannabis and amphetamines. There was some increase in his use of drugs since his involvement in the current offending reported in the first report.
He had a break down in a long standing relationship in 2013 which caused him considerable stress before he got involved in this current offending. He had been in a partnership with the mother of his two children for eight years. This is said to have contributed to his "stressors" along with his financial difficulties. He said he had health issues which caused him to leave the employment with Woolworths leading to the offending. He had some back pain due to an old work injury, claimed a history of a heart murmur for which there is no medical evidence available but which he suffered as a child. It could be consistent with the sequelae of rheumatic fever but I do not know. He was also cooperative with the preparation of the report, but it noted that when difficulties in his personal life arise he resorted to drug use which impacted upon his relationship with his family.
He was assessed as requiring supervision to address his drug use and abuse and to assist him with psychological issues. As I said the first report mistakenly reported that he had previous supervision which is clearly not true. The subsequent report correcting this reflects upon the fact that in custody at the South Coast Correctional Centre he has been in employment. That he would wish to return to Wollongong rather than Campbelltown on his release from custody. The second report reflected upon a history of black outs and enquiries were made of Justice Health about this matter. The prisoner said the offences were committed to fund his drug and alcohol additions.
A Justice Health report dated 18 February 2015 noted a history of black outs in 2012, including a fall and feeling some pins and needles, but neurological testing at that time revealed no abnormality, the examinations occurring in that year, that is 2012.
The prisoner when interviewed in custody in January 2015 claimed black outs occurring "12 months ago with the last occurrence three to four months ago." That is as I would understand it since he committed the current offences. He gave a history of three or four black outs for a period of a few minutes. He complained of headache and numbness to the top of his head and mild to moderate clubbing of fingers. The rest of the neurological examination was essentially normal. No diagnosis was capable but he was recommended to be sent off for further examination.
I have a psychiatric report in relation to Mr Burns from Dr Furst. That sets out some history. Although the doctor said further psychometric testing was required to determine whether the prisoner had an intellectual disability or borderline intellectual functioning. The prisoner had no major mental illness or history of such illness at the time of the offending or beforehand, although he had received some anti-anxiety medication.
He has other medical issues which I do not propose to state in public out of respect for his privacy. He also gave a history of experiencing black outs in custody. He said in the history he gave to the psychiatrist that he was ill with black outs before he left Woolworths. He said he was put on sick leave and then he was "put off work". This is not the history in the facts because, as I said, his employer has informed the police that they believed he had abandoned his employment.
The prisoner said to Dr Furst that his involvement in the offence was "quite crazy" and "quite stupid" and at the time he did not care about the consequences because he was under stress from being sick and separated from his wife. He stated that his motivation in obtaining money was to fund his drug use. Although obviously objectively it was to receive far more money than his immediate drug needs would reasonably require.
He described himself as an "idiot" who would rather be home with his wife and kids as he described it. In clinical examination, although there was no psychometric testing the doctor believed that his manner was consistent with "low intellectual functioning". There was no evidence of severe depression or psychosis, although he was low in mood as one would expect interviewing someone in custody.
The psychiatrist thought he met the criteria for substance use disorder and that there was a likely borderline intellectual function given his history of learning difficulties, early departure from school and also attending a special school at Glenfield. There was no evidence however of enduring mental disorder relevant to the offending. The doctor said that it was a combination of substance abuse and family break up along with inability to work and low level intellectual functioning that may have attributed to his offending.
He also noted his history of medical problems. He thought the prisoner's black outs may well be associated with cardiac arrhythmia. However there has been no cardiologist or relevant specialist opinion about this matter. There were no indications that the prisoner was unaware of his actions or the wrongfulness of his actions at the time of the offending.
The assessment by the doctor just based upon a clinical examination is not entirely consistent with his employment history, particularly his appointment as an acting manager at Woolworths. This assessment appears to be based upon very limited information indeed. In any event his counsel did not submit that there was any issue that gave rise to a consideration of principles that are summarised by his Honour, McClellan CJ at CL, in the decision of DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194, particularly at [177].
I accept that some aspects of his medical condition might make his circumstances of custody somewhat more difficult than the normal prison population, but not substantially nor was it urged that they would. The psychiatrist felt that he needed to undertake relapse prevention programs for drug and alcohol use. He did not need anti-depressant medication. He needed psychological assistance as said the community corrections officer. He had poor coping skills with emotional problems. His educational and rehabilitation should also be encouraged.
The doctor pointed out that the prisoner was working constructively before going into custody and could on release. The major issue to be addressed however was preventing relapse into further drug use and this would be self-evident. Also monitoring his peers I would expect.
The psychiatrist thought he had reasonable prospects of being successfully rehabilitated giving his willingness to involve himself in counselling and rehabilitation programs. I will say something more about psychiatrists seeking to express opinions about matters not based upon their medical assessment. He only had partial insight into his drug use and its effect and certainly there was a need for assistance for future direction in that regard on his release. I have taken all those matters into account and I have ultimately concluded that there ought to be a finding of special circumstances in part based upon the doctors analysis.
Mr Usher has a more significant criminal history than Mr Burns, having appeared primarily at the Local Court in relation to a large number of offences between 1998 and 2014. Most of his offences relate to the use or abuse of motor vehicles, but he also has convictions for larceny, breaching apprehended domestic violence orders, taking and driving a conveyance without the consent of the owner, possessing implements to enter, goods in custody, driving with prescribed concentration of alcohol, various street offences, obtaining money by deception and larceny as a bailee.
He has committed various offences regularly over the last 15 years, but the offences for which he has most been convicted relate to driving whilst disqualified. I went through his record last night very carefully, I lost track to be truthful, but I counted at least nine separate times that he has been convicted of driving whilst disqualified. There are some matters in his record showing convictions recorded because he did not appear at court.
I have tried to reconcile them with subsequent convictions. He has previously been sentenced to terms of imprisonment. The first time for driving whilst disqualified. That was converted to a suspended term of imprisonment on appeal to the District Court. But he breached that bond, causing him to go back and serve the sentence of imprisonment that he was originally given.
He has also received terms of imprisonment for driving in a manner dangerous to the public and driving a motor vehicle without consent in 2004. The last sentenced offence in that series of offences involving a sentence of 12 months with a non-parole period of eight months. He also received another sentence of 12 months with a non-parole period of eight months for driving whilst disqualified at that time.
In 2006 he was sentenced to a term of imprisonment of 12 months with a non-parole period of nine months for driving whilst disqualified and driving with mid-range PCA. In 2013 he was convicted and sentenced after his arrest in relation to the current matters to 12 months imprisonment with a non-parole period of six months expiring on 17 April 2014 for driving whilst disqualified.
There are other terms of imprisonment imposed for other offences going back to at least 2003. He has received good behaviour bonds, community service orders and suspended sentences of imprisonment. Although he has been in custody since 18 October 2013, obviously the criminal history as has been conceded just a few minutes ago reflects the fact that part of that time he has been serving a term of imprisonment for unrelated offending.
Therefore the sentence I will impose must commence at the expiry of the non-parole period for the conviction recorded in late 2013. That is a non-parole period which expired on 17 April 2014. I note in his criminal history for some reason there is noted a revocation of parole for which he was ordered to serve home detention rather than return to prison custody.
The criminal history said that this was recorded at the "Parole Board Court" on 6 November 2002. Never heard of such a 'court'. But I accept that it reflects some matter dealt with by the then Parole Board.
Mr Williams who appeared for Mr Usher, noted that a request had been made for a pre-sentence report when the matter was last before the District Court here in Goulburn in November last year. There is no record on the Court file of any order for such a report and no report has been prepared. Mr Williams also noted that no psychological or psychiatric report had been prepared. I was not told why that was so, if it was needed Mr Williams certainly said he was not counsel on the last occasion.
I raised with Mr Williams what he wished to do about it. He advised me that his client was anxious for the matter to be dealt with as soon as possible. The issue of seeking an adjournment to have relevant reports prepared was clearly raised with Mr Williams in a manner for him and the accused to consider. But it was the position of the accused in the letter he wrote to me, and that of his counsel on instructions that the matter should proceed without the reports. If an application to adjourn the matter had been made to obtain reports obviously that would have been granted, even if it led to a delay in sentencing. But that would not have affected the sentencing of Mr Burns.
Mr Usher prepared a type written three page document being a statement as it was described setting out details of his background. In fairness to him he said in that document he was dyslexic and he sought assistance in the writing of it. But I accept it is a genuine expression of matters pertinent to him.
I do not wish to embarrass him at all but these matters have to be stated in public. He stated that his mother was a heroin addict who left him and his father when he was two years of age. He was his father's only son. He never saw her again until he was 17 and apparently sadly she died in 2006 when he was 23. He had a very good relationship with his father who has passed away. He described his childhood as "quite good", however he only completed Year 7 at school. He had little interest in school and amongst other things if he was dyslexic that would have affected his ability to enjoy or perform well at school.
He said in his statement that whilst in custody he was trying to improve himself by improving his literacy, his writing ability and his arithmetic ability. He has been in partnership with his current partner for ten years and he has two children aged eight and six. He described the relationship as strong, but said she had given him an ultimatum about his drug use. She might also give him an ultimatum about his use of cars and committing crimes. His drug use to my mind is only part of the problem she has.
He did say that he had a history of schizophrenia since he was 18 or 19 and that he had been taking medication in custody regularly, although he did not do so when he was at large. He had seen a psychiatrist in the past but not for over two years. He said that he had been committed to some sort of hospital care for his mental health problems at some stage.
He said in relation to this matter that he understood that there had been recent Legal Aid Commission approval for a report to be prepared, but he did not want his case adjourned as I earlier said.
So far as employment was concerned he said that since leaving school at the age of 15 he worked for six months cleaning cars, been unemployed for a while and at about the age of 20 took up the trade of being a 'powder coater'. That is, powder coating metal. He said when at large he generally was in employment and he would look for that employment on his release. I would understand that that is a skill that would have some demand.
He wanted to live drug free, given his mother's history, during this life, but when his father died in 2009 he said he took that pretty hard. He said that when he got out from custody and previous occasions he started using drugs again. He hoped when he was gaol before to avoid using drugs, but he would always return to them. He said that he committed the offences with which he was now concerned to support his addiction. As I say, that may be in part one of his reasons, but the fact that he bought a car shows that he had other interests as well.
I find it interesting that he went off to buy a car in circumstances where, without seeing his Roads and Maritime Service traffic record (as opposed to his criminal history), he would have been disqualified from driving a motor vehicle for many years into the future. One of the problems the prisoner will have to face, and bite the bullet on I must say, is that for employment purposes he is at a disadvantage not having a motor vehicle driver's licence. But the facts are that in the near future, at least, I would strongly suspect, given that disqualifications for driving whilst disqualified are cumulative upon existing disqualifications, he has no right to be driving motor vehicles at all.
Of course, what he wrote in the statement is untested. Although the Crown very graciously did not object to the statement and in my view, if I be so bold to say so, took a very sensible approach to the whole sentencing proceedings as he always does. In many respects the material in the statement was uncontroversial. But, of course, in the absence of any independent medical evidence with no request from the prisoner to obtain it which is as I understand it a deliberated decision on his part, there is no evidence either in the objective facts or even in his own statement of a relationship directly between any mental disorder and the offending, save for the fact that he may well have had some form of substance abuse disorder at the time of the offending.
Mr Burns' counsel prepared very detailed written submissions and I will refer to them in some detail in a moment when I consider the relevant issues in his case. He covered the field for both his client and Mr Usher in many respects. In oral submissions I raised specifically with him matters relating to the breach of trust, the significance of the criminal history or not and also issues of parity and disparity with his co-accused.
Of course parity principles loom large in this matter notwithstanding the different particulars in the charges, the different way in which the charges have come to court and of course the different criminal histories of the men. The fact that Mr Usher has a matter on a Form 1 to my mind as I earlier said is not a matter of great significance, given the fact, in accordance with the guideline judgment of 2002 which reference I do not immediately have in front of me, I am afraid, it was held that in fixing a sentence for the principal offence taking into account a matter on a Form 1, considering such a matter on a Form 1 may require giving greater weight if needs be to specific deterrence and other factors that would otherwise require an increase of the otherwise appropriate sentence for the principal offence.
Mr Burns' counsel did not indicate that there was any significant difference between his client and the co-accused, although he took exception to the categorisation of the prisoners conduct as a breach of trust. As I understand the oral submission put to me, based upon the facts that the Crown presented, because the prisoner had abandoned his employment and because he was no longer in the employee of Woolworths there was no issue of trust that arose. In my view with respect this submission was somewhat misconceived. I accept as an objective fact that at the time of the commission of the offence the prisoner was no longer an employee of Woolworths. But the facts are the trust put in him by Woolworths occurred at the time that they handed him the keys and the security codes. Whilst he was an employee Woolworths provided him with the opportunity to gain information about the layout of the premises and other relevant matters for the use of Woolworths, not for his personal advantage. Certainly not to take advantage of any of that information or any of those items to steal from his employer or his former employer at any time.
The facts of the matter are that for a period of time before 10 October he held onto the keys, notwithstanding the fact his employers wanted the keys back. I appreciate the fact he could not expel from his mind his knowledge of the layout, his knowledge of security codes, the work habits of employees. But that information was not to be disseminated to people who wanted to commit crimes with him against his former employer.
I accept the general proposition that there are levels of breach of trust. I accept of course that a solicitor who steals from his clients commits a more heinous or egregious breach of trust than an employee stealing from an employer in most instances. But there still is the substantial breach of trust involved here as the prisoner was entrusted with confidential information that he could not use to his advantage at any time.
Counsel for Mr Usher relied upon exhibit 1, referred to the background of employment, the interests of the prisoner's wife and children, his ongoing drug difficulties. He accepted that there was not any evidence upon which the Court could rely to establish any relevance of any mental illness to the commission of the offence, particular as it might relate to the weight to be given to general deterrence, the specific matter to which Mr Williams referred. But he also submitted it was clear that his client had a difficulty with drugs and addiction and the prisoner was on notice from his partner of his need to address this matter. It was also submitted the document I saw reflected insight on his part and the wish of the prisoner to better himself, which I accept.
The Crown's submissions in relation to Mr Burns were that the prisoner did breach the trust given to him by his employer at the time of his employment, and that trust continued up until the time of the commission of the offence, whatever the status of his employment at that time, a submission I accept. He had material and information entrusted to him by his employer that allowed the offence to occur in the circumstances in which it did. The Crown did not submit that the offence involved planning as an aggravated factor, but noted the prisoner did have knowledge from his employment of matters that went into the plan. The prisoner, Mr Burns, was entitled to a 25% discount. The learned Crown said that he did not part company from the submissions made about the prisoner's criminal history by his counsel. He also said that the prospects of rehabilitation were somewhat limited and there should be some partial accumulation in respect of the offences of the 13th and the offence of the 10th with which I agree.
In relation to the matter of Usher the Crown submitted that the discount should be 10%, I have already dealt with that matter. With regard to matters of planning and the like they were common to the co-accused, although in the case of Mr Usher there was no breach of trust. He said in relation to the proceeds of crime in relation to both prisoners that he would "not vigorously contest" the argument that there should not be any partial accumulation in relation to those offences. He said, however, in relation to Mr Usher that he had a persistent criminal history and although it did not involve offences of this seriousness he had limited prospects of rehabilitation given that past history.
Counsel for Mr Burns prepared, as I said earlier, very helpful written submissions. They are exhibit 2. They concern Mr Burns of course, but they have some relevance to the situation of Mr Usher. I need not quote them extensively. Correctly, counsel for Mr Burns identified the fact that the starting point of the calculation of any appropriate sentences is to assess the objective seriousness of the offence. Of course that task is not simply confined to a consideration of the presence or otherwise of aggravating factors under s 21(2) Crimes (Sentencing Procedure) Act, a matter extensively addressed by Mr Stewart very effectively in his written submissions. But it must also be remembered that s 21A(1) of the Act retains the need for the Court to consider the relevant factors that arise in sentencing whether identified from the facts and circumstances of the case or identified from what could be called 'common law' principles, or general principles, of sentencing as they have developed over the years not otherwise provided for in the section.
For example, the issue of parity of sentencing is not a matter expressly referred to in s 21A as far as I can recall but is obviously a very relevant matter to be taken into account in this sentencing exercise, as I have earlier noted. Mr Stewart in his written submissions correctly identified the relevance of Ponfield, the guideline judgment of Grove J particularly, a most erudite and learned judge of the Supreme Court, in relation to breaking, entering and stealing matters in 1999. He also cited the observations of Howie J, another learned judge, in R v Marshall [2007] NSWCCA 24 at [37], where his Honour by reference to the Pt 4 Div 1A of the Act said that "Ponfield criteria identified by Grove J were relevant matters to take into account in assessing whether an offence fell within the mid-range of seriousness".
100 It is to be noted that Marshall is a pre-Muldrock decision. That is, a decision handed down before the decision of the High Court in Muldrock in 2011, and was a decision given after the 2004 decision of Way, which until 2011 set out the principles to be applied in consideration of standard non parole periods substantially overruled by the decision of the High Court in Muldrock. There are of course some other historical matters to be pointed out, I am not sure whether Howie J discussed them or consider them in Marshall. One of the matters is that the guideline judgment of Ponfield set out a number of relevant criteria to be taken into account in fixing an appropriate sentence for an offence of breaking, entering and stealing, but declining to fix a numerical guideline because of the complexity or the character of the offending. The relevance of those criteria, however, was that they were handed down before the current s 21A came into law.
The Crimes (Sentencing Procedure) Act of 1999 in fact did not come into effect in 1999, it came into effect in 2001. The original s 21A which I had to apply for about 18 months or two years is in substantially different terms than the s 21A that is primarily at force today. The current s 21A, far more complex than the earlier section, has many matters in it that were specifically adverted to by Grove J in his erudite and prescient judgment. In other words, the legislation enacted already existing principles to some extent relevant to the sentencing of offenders.
That having been said, in relation to Mr Burns and Mr Usher there are a number of features of the matter that arise from Ponfield and/or the more refined and detailed s 21A(2) that are absent. Neither offender was on conditional liberty, although there was some planning it was not professional planning, neither offender had a prior record of similar offences, there was no vulnerable victim, no vandalism or damage to the property, no stealing of property of sentimental value, no person was present, there was no trauma, no force, no threat, no use or possession or weapons. All this is correct and I take that into account. It might on one view be thought that the completed offence on 13 October was a repeat incursion because the prisoners admit their guilt in relation to the prior attempt to break into the premises to steal. But having pointed that out I am satisfied that if the first attempt had been successful then the offence would have been completed and they would not have returned. I would regard the concept of repeated incursions to be concerned with people who commit the same crime on the same victims over and over again, either because it is easy to do, the victims are too terrified to complain to the police or too vulnerable to complain to the authorities, or the object of the offences are a rich source of property that can be plundered over and over again.
It is conceded at one point of the submissions that the sum of money taken was significant, however at another point of the submissions, that is at the bottom of p 4, the sum stolen is said to be "quite modest". There is no doubt that it is a significant sum of money, and it is no doubt in terms of aggravating factors under s 21A(2) that in relation to both offenders there was substantial loss to Woolworths. The fact that Woolworths is a multi-billion dollar corporation, very profitable, largest supermarket chain in the country, is of no moment in the consideration of that matter. All citizens and all corporate personalities are entitled to the same protection of the law. Thus, that is a relevant aggravating factor in relation to both offenders.
I must say stealing the sum of $90,000 in the course of a breaking and entering and stealing from commercial premises is to be seen as a very substantial sum indeed. From my experience as 14 years as a judge it is quite uncommon in the courts to be so much stolen by way of cash in the one offence. Of course I have seen many break, enter and steal matters of domestic premises, or even commercial premises, where property has been stolen, not just cash, of great value. But of course one can sweep up a pearl necklace or a diamond ring of very great value indeed with one movement of the hand.
I note in the Local Court, as I understand it, the value of property that gives that court jurisdiction is property under the value of $15,000 if an election is relevantly taken. These types of offences, the one that I am dealing with now, rarely find their way to the District Court unless the offender has committed it in circumstances of aggravation or the offence is connected to some other serious indictable offence such as armed robbery or attempted murder or some other crime.
I am aware of the fact that s 112 at (2) and (3) pleads various aggravating factors that give those matters jurisdiction to be dealt with in the District Court. However, I also note the observations made by learned counsel for the prisoner Burns that these offences plead aggravating factors, some of which are readily recognised, as being lesser aggravating factors than others. This was discussed in the decision of R v Harris [2007] NSWCCA 130 at [48]. It seems to me with respect to the legislators that a number of offences come to the District Court where the property stolen is relatively minor, but only come here because of a particular aggravation which to my mind given the significant sentencing of discretions more properly could be dealt with in the Local Court. Of course this is not such a case.
I accept the submission concerning the significance of being in company by contrast to other circumstances of aggravation being a lesser circumstance of aggravation here. I also note what was said in Harris about stealing being regarded generally as one of the lesser indictable offences contemplated by s 112, a matter not often reflected upon or understood. This was discussed by Simpson J in the decision of Huynh [2005] NSWCCA 220 at [27]. There was other observations in Harris at [29] concerning the significance of the crime of stealing in the context of sentencing for an offence of breaking, entering and committing a serious indictable offence, as cited in the written submissions on behalf of Mr Burns which I acknowledge and take into account.
It should be also pointed out, however, that this was a true burglary of commercial premises where each of the prisoners would have had an expectation, given Mr Burns' knowledge of the business, that there would be a considerable amount of money taken. It is not a case of two young tearaways jumping into a store at Glenfield and discovering to their delight when they break open a small safe that the owner of the store has left his lifesavings in there. I have no evidence of what average takings are of the Woolworths store at Mittagong on a daily basis, and whether on the particular day that the offence was committed it might reasonably have been expected that there would be more money or less money than on other days. I bear in mind of course there was a failed attempt to commit the same crime three days before. But there was an expectation at all times by both men that they would retrieve a considerable amount of money, proven by the fact that they got away with over $90,000. This shows to some extent, as is said, 'the proof in the pudding' of reasonable expectation of a very substantial sum of money being stolen.
The remaining aggravating factor that applies only to Mr Burns of course relates to his breach of trust which I have already discussed. As I said earlier, the breach of trust did not depend upon his status as an employee or not as at 10 and 13 October 2013. The breach of trust arose from the trust given to him at the time of his employment, and it was his responsibility to return the keys and not use the information against his former employer. Even if he had been pre-emptively dismissed without good cause, which is of course not the case here, he would have no basis for acting the way he did.
Of course all of these observations above concerning the objective facts also largely apply to the related earlier offence of aggravated break and enter with intent. In that case there was no loss and that offence was a preparatory step in relation to the current offence.
With regard to the dealing with the proceeds of crime offence, as is in the case of Mr Usher, these offences in my view are subsumed into the objective gravity of the breaking, entering and stealing matter in the sense that the dealing with the proceeds, and the use of the proceeds by Mr Usher particularly, are merely a corollary of the principal offence. The whole purpose of stealing the money from Woolworths was to spend it one way or the other. That obviously, at least, happened in part. Particularly in relation to Mr Usher. Of course some break, enter and steal offences involve no dealing with property. But that is usually because the prisoner has no time to do anything with it, or the offender throws it away thinking it is valueless or irrelevant to his needs. These men broke into the property to steal money for their own needs and thus it seems to me that all the sentences for the proceeds of crime offences should be fully concurrent with the principal offence and will not require for reasons that are self-evident the fixing of a non-parole period, there being no standard non-parole period.
In relation to Mr Usher, as I earlier said, I will need to take into account the aggravated break and enter with intent matter that is on the form one in the manner discussed by Spigelman CJ in the guideline judgment, and I am particularly mindful of what was said in that judgment between [18] - [43]. Of course the Court of Criminal Appeal on that occasion said that the focus is on the principal offence and there is no need to particularise the extent to which any increase upon the principal offence sentence is calculated by taking into account a matter or matters on a Form 1. In other words, a 'Markarian approach', as it might be described, using instinctive synthesis. As it transpires I can indicate that such sentences as will be imposed on Mr Usher and upon Mr Burns, subject to relevant discounts, will take into account matters of totality, as reflected by the High Court in Mill v R, and of course the decision of Pearce v R [1998] 194 CLR 610 at [45]. In the case of Mr Burns the accumulation as I foreshadowed will be to the extent of six months.
With regard to the subjective cases, apart from the matters I have already identified in relation to Mr Burns, I conclude that a mitigating matter is that the offending of both men is not part of organised criminal activity. I have already indicated I do not find as an aggravating factor in either case that it was planned criminal activity. But I cannot find that as a mitigating factor either on balance. To my mind the issue is evenly balanced, particularly given the fact that the crime is committed by particular information being provided to Mr Burns to the co offenders and the timing of the offence was identified based upon information available for Mr Burns' employment.
I am fully aware of the many pronouncements about what planning means, both as a matter of aggravation and a matter of mitigation under the Act. Howie J in relation to drug supply matters on a number of occasions pointed out that whilst drug supply matters may appear well planned, the planning was intimately connected to or tied up with the character of the offending. Such planning as was involved here, while intimately connected to the character of the specific offending, is not necessarily intimately tied up with the general character of this offending.
To my mind ultimately the planning in this matter is a neutral matter so far as it relates to mitigating circumstances. I accept, however, that he does not have a significant record of criminal convictions, his plea of guilty is a mitigating factor for which he receives a discrete discount. I cannot conclude on balance he is unlikely to re-offend, particularly given his behaviour since he committed this offence and his involvement in this offence. I accept that he has reasonable prospects of rehabilitation having regard to the matters adverted by Dr Furst. Although I wish that psychiatrists do not fall for the trap upon commenting upon matters about which they do not have adequate information and are not based upon any medical skill that they have, but are solely based upon matters of history which are entirely dependent upon the history given by the patient, usually of a non-medical character, and do not have regard to the absence of independent evidence or the reliability of the history or its accuracy.
I do not accept that the accused is remorseful as contemplated in s 21A(3) of the Act. He did plead guilty, he said he was sorry to Dr Furst. He has given no evidence in relation to this matter, however, that could be challenged by the Crown. He has provided absolutely no assistance for the recovery of the money and has provided no information that would lead to the identification of the co-offender. These matters could be taken into account, not only as cooperation, but as evidence of his contrition. The same observations may be made of Mr Usher. Of course I appreciate neither man has an obligation to give evidence or cooperate. These are matters that are not held against either prisoner. But they are relevant matters that can be taken into account in assessing whether a person is truly contrite or remorseful. Time and time again people turn up having said nothing for 14 or 15 months and say to the judge, sometimes in evidence with a straight face, that they are sorry. One might accept it, one might not. The expression of contrition has to be seen in full context. But the facts of the matter are that the timing of an expression of contrition is an important matter to take into account.
With regard to Mr Usher, he has a lengthy criminal history which could be described as significant, having previously been gaoled and subject to various forms of supervision. Although I accept that he has no prior convictions for offences of this type, and I take that into account in his favour, I cannot find his criminal history offers a mitigating factor in this case. His criminal history in fact does not entitle him to any special leniency, although it is not an aggravating factor. Certainly, he could not be described as a professional burglar given his criminal history. It was to my mind his incompetence in leaving behind the prisoner Burn's keys that quickly led to the apprehension of them both. I could not conclude that the prisoner is unlikely to reoffend. In some respects although I accept he is unlikely to reoffend in this respect. Although he has been disqualified from driving many, many times before, the first thing he did when he got access to the money was to buy himself a car. He is not entitled to sit behind the wheel of a car for many years to come. This action reflects something of his attitude.
If he continues to drive cars he will continue to go to gaol for longer and longer periods, and he will continue to be disqualified for longer and longer periods of time. As to his prospects of rehabilitation that has been put on his behalf in his letter to the Court, they must be regarded, as the Crown said, with some circumspection.
In relation to both prisoners I have had regard to s 3A of the Act. These are matters that require weight to be given to general deterrence, personal deterrence, making the prisoners accountable, denouncing their conduct, recognising the loss to the victim and other matters, as well as promoting their rehabilitation. I do not think the community needs protection from the prisoners, neither of them is a danger in the sense that this type of conduct is characteristic, particularly having regard to their ages and their criminal histories.
As earlier point out, although drug usage was in the background of the matter and was in part motivation, I do not accept that it was the sole reason that either offender involved himself in these offences. Personal profit and unjustified enrichment were motivations too. In the case of Mr Usher, as I said earlier, this was amply demonstrated by the facts of count 2 in the indictment. Neither prisoner gives a believable explanation as to the distribution of the money. I do not accept for a moment that Mr Burns could only seek $6,000 for his involvement in the offence or he did not know how much was taken. He must have known roughly, or had some ambit idea of, how much money was in the safe. One might have thought without speculation that the three offenders would share in the money that was taken. It is to be remembered it was a joint criminal enterprise by its character. In the end I cannot be satisfied beyond reasonable doubt though of precisely what each person got.
In relation to both offenders I have concluded that there are special circumstances made out. In the case of Mr Burns there is the partial accumulation of sentences that I will impose, the need for professional assistance to adjust to community living, and professional guidance in relation to matters discussed in the pre-sentence report and the report of Dr Furst. In the case of Mr Usher there is an issue of partial accumulation because I have to accumulate the sentences I imposed a past expired non-parole period for the sentences imposed in February 2014 of 12 months with a six month non parole period. The same issues arise in relation to him as arise in relation to Mr Burn in assessing the relationship of the non-parole period to the balance of the sentence. In my view the adjustment of the sentence is to reflect special circumstances will assist the rehabilitation of both prisoners. Of course they will be required to fulfil their parole conditions which if not honoured will lead to their return to custody. These are matters for the Parole Authority in due course. They must understand of course I have got no power given the character of the sentences to direct that they be released immediately to parole on the expiration of their non-parole periods.,
In fixing appropriate sentences for each offender I followed from what the High Court in Lowe v R (from 1984), and later in the decision of Postiglione (from 1999), particularly in the decision of Dawson and Gaudron JJ, where their Honours identified as the central principal or corollary of parity of sentencing, the concept of equal justice. 'Aristotlean principles' of equality essentially state that alike shall be treated alike, and the unalike shall be treated unalike to the extent of their unalikeness. Justice Rothman much more eloquently than I focused on this matter in his judgment in the 2010 Court of Criminal Appeal decision of Jimmy.
Although Mr Usher does not have the same mitigating factors as Mr Burns and Mr Burns' subjective case, particularly in relation to criminal history is more favourable, the role of Mr Burns in providing information and resource that permitted the crimes to be committed is a strong balancing matter. One cannot really differentiate about their roles in determining who ultimately concluded it was a good idea to knock over Woolworths. The facts of the matter are they are equally liable to that initial decision.
Ultimately I have concluded that I should not substantially differentiate between the offenders apart from matters pertinent to consideration of the matter on the Form 1, partial accumulation of sentences in relation to Mr Burns, and also the matter of the commencement date of the sentences. To substantially differentiate between the two offenders ultimately would be an act of sophistry or of subtle semantics, which the case does not deserve.
Of course Mr Burns gets a substantially greater discount because of the greater utilitarian benefit of the pleas of guilty. Mr Usher is able to have his sentence start earlier because he was never on bail. I am appreciative of the fact too of the way in which matters operate in these courts. Mr Burns pleaded guilty at the Local Court where the room for negotiation is far less than it may be when matters come to the District Court. It is a fact as we know as practitioners and as Judges that generally speaking a lot more focus negotiation occurs after the matter has been in the Local Court than while the matter is before the Local Court. The learned representatives of the Director of Public Prosecutions here would have greater discretion in that regard than a police prosecutor or someone appearing for the Director at the lower court.
There is a standard non-parole period in relation to the aggravated breaking, entering and stealing matter. This is a matter specifically addressed in the submissions of counsel for the accused Burns. He cites Muldrock, [2011] 244 CLR 120. Particularly I note what is said between [20] - [30]. Ultimately Muldrock held that Markarian principles are required in sentencing notwithstanding the existence of a standard non parole period (Markarian v R [2005] 228 CLR 357 particularly the observations of McHugh at [51]). The standard non parole period is not a determinative matter in fixing sentences. That having been said I also note, of course, that since Muldrock ss 54A and 54B have been substantially amended to make it clear that the standard non parole period is a matter to be taken into account in determining the appropriate sentence for an offender but without limiting the matters that are to be taken into account. The standard non parole in any event, as s 54A(2) now makes clear, is a matter that is to be taken into account only in relation to the objective factors. Of course finding 'special circumstances' and matters of mitigation have to be further taken into account in fixing the 'non-parole' period.
If I was to categorise the seriousness of the offending in this matter I would be inclined to think that the offending was either at the very low end of the middle range of objective seriousness, particularly having regard to the amount of money that was taken, or alternatively just below the mid range of objective seriousness. But again as I said my understanding the authorities do not require an assessment of it beyond the analysis I have undertaken earlier.
I am sorry, Mr Burns and Mr Usher, I said it would take some time. Mr Burns would you mind standing up, thanks very much. In relation to the offence of aggravated break and enter with intent, bearing in mind the starting point of the sentence for that matter is four years, I sentence you to three years imprisonment to date from 28 December 2014, that sentence to expire on 27 December 2017. I pause for a moment.
Mr Stewart and Mr Crown is 28 December 2014 a fair starting date taking into account 60 days of presentence custody?
SPEAKER: That's right on my calculations your Honour.
HIS HONOUR: I calculate it to be 61 days but it seems fair enough.
SPEAKER: Yes your Honour.
HIS HONOUR: Sir in relation to count 3, when I say count 3 the third charge, the dealing with proceeds of crime charge, you are convicted. You are sentenced to a sentence of two years six months imprisonment to date from 28 June 2015 and that will expire on 27 December 2017. In relation to the aggravated breaking entering and stealing matter you are convicted. You are sentenced to a non-parole period of two years six months imprisonment to start from 28 June 2015 and that will expire on 27 December 2017. The total sentence is four years and six months and on my calculation that total sentence will expire on 27 December 2019. You can take a seat thank you very much.
Mr Usher do you mind standing up please. In relation to the offence of, your concern with the proceeds of crime, count 2 on the indictment, you are convicted. You are sentenced to a sentence of two years six months to date from 18 April 2014, the sentence will expire on 17 October 2016. In relation to the offence of aggravated breaking entering and stealing with a starting point of six years six months, in your case I gave a starting point of six years for Mr Burns, but with a discount of 10% I sentence you to a non-parole period of three years three months to date from 18 April 2015, to expire on 17 July 2017. I fix a total sentence in relation to that matter of five years and ten months to date from 18 April 2014 and to expire on my calculation on 17 February 2012. Just take a seat sir thanks very much.
That means that Mr Burns in your case you are eligible for release to parole on my calculation on 27 December 2017. And in the case of Mr Usher you are eligible for release to parole on 18 July 2017.
In each case I make a finding of special circumstances pursuant to s 44 of the Act, to provide extended periods of supervision to assist the prisoners and to recognise the effect of partial accumulation of sentences.
Now are there any errors in my calculations?
SPEAKER: Not from me your Honour.
SPEAKER: Not from me your Honour.
HIS HONOUR: I am told, Mr Crown, there are some related matters on the Justice Link information in relation to Mr Burns, is that right or not, s 166 certificate matters?
STOLLERY: Yes your Honour, they're sequences 4 and 5 possess prohibited drug matters.
HIS HONOUR: How are they to be dealt with? I mean obviously they're not going to add to the sentence, are they to be withdrawn or?
STOLLERY: Yes one 14/10/2013 relating to cannabis the other one relates to amphetamine.
HIS HONOUR: When he was arrested. When he was arrested he was in possession of a small amount
STOLLERY: Yes.
HIS HONOUR: of cannabis and a small amount of amphetamine.
STOLLERY: Yes.
HIS HONOUR: Well, Mr Crown, if you wanted them to be dealt with by pleas of guilty, and I'll speak to Mr Stewart about this right now, I'd deal with them under s 10A of the
STEWART: That is to be my submission your Honour, yes, s 10A.
HIS HONOUR: Just let your solicitor speak to Mr Burns, he might not understand the intricacies of s 166 of the Act.
STEWART: Yes that's the preferred course your Honour.
HIS HONOUR: I am sorry to trouble you, Mr Burns, I know this would seem like a torture in the scheme of things but you realise when you were arrested you were in possession or you were alleged to be in possession of some amphetamine and some cannabis, do you understand that and you were charged with those two offences, possessing those two prohibited drugs. Do you admit your guilt in relation to those matters?
ACCUSED BURNS: Yeah. Yes.
HIS HONOUR: Anything you want to say about the matter Mr Crown?
STOLLERY: No.
HIS HONOUR: Anything you want to say about the matter Mr Stewart?
STEWART: No your Honour.
HIS HONOUR: Sit down Mr Burns.
In relation to sequence 14 and 15 the accused is convicted and pursuant to s 10A he is convicted without penalty in relation to both of those offences. There is no utility in fining him. They are sequences 14 and 15, is that right? I have read that from the certificate. I think you said that.
STOLLERY: No it's 4 and 5.
HIS HONOUR: 4 and 5 I am sorry, sequences 4 and 5.
[2]
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Decision last updated: 19 August 2015