R v Camarse [2022] NSWDC 622 | Case summary

District Court of NSW|2022-06-09

Solicitors: Ms. S. Colman (The Crown) Ms. E. Blackburn (The Crown) Ms. J. Meredith (The Offender) File Number(s): 2020/00054146

Judgment

HER HONOUR: The offender is before the Court for sentence after a verdict of guilty returned by a jury for an offence of aggravated break and enter with intent to steal, the circumstance of aggravation being knowing that there were persons inside. This is an offence contrary to s 111(2) of the Crimes Act 1900 (NSW) which carries a maximum penalty of 14 years' imprisonment. The matter went to trial following a plea of not guilty. He was found guilty by the jury. There are now before the Court some facts agreed by the parties arising from the evidence given at trial, taking into account the jury's verdict.

Relevant Facts on Sentence

I accept from those that this offence occurred on 10 January 2020 in apartment premises in Chatswood. The occupants of those premises were a couple and the son of the female. Her female friend was also residing with them on that particular night. The female occupant went to bed, as did her friend, around 9.00pm. Her son was watching YouTube in another room. The male occupant was in another room. He left at about 11.20pm and came back at about 11.50pm. When he left, the sliding glass door to the balcony was open and the screen door was closed but not locked.
When he returned through the front door and turned to go into his bedroom, he saw the offender walking out wearing a light-coloured shirt around his nose and mouth. He asked him who he was. The offender said, "Let me go." He recognised he was speaking with an accent. The male occupant wrestled him to the ground. The female occupant heard noises and came into the lounge room and saw her partner holding the offender down. She initially thought that there was some interaction occurring between her partner and her adult son and intervened in that. The offender escaped through the lounge room, towards the balcony, through the sliding door, and then he jumped off the balcony and ran into the street. He yelled out, "I'll come back. I'll kill you."
According to the statement made by the male occupant to police on 11 January, he then yelled out that he would find him and kill him as well. At this stage, I cannot recall whether that evidence was given at trial, but it is certainly the evidence given by the male occupant to the police at the time he made the statement. The male occupant chased the offender down the street before he then ran into a unit complex, and he lost sight of him. The female occupant called triple 0 to report the offence. When police arrived, they found turned-over and broken chairs, a baseball cap, a shoe, a microfiber cloth, and also on the floor was a white makeup bag that belonged to the female occupant. They also found that drawers in the male occupant's bedroom had been opened.
There was some DNA taken off some of those items, which was the subject of evidence before the trial. There was no identification evidence and in a photo identification parade conducted with the male occupant, he did not identify any of the images as the offender. It seems to me that the jury's verdict of guilty must have largely been based on their acceptance that the DNA found on various items was that of the offender and, in relation to all of the three major items, were items taken by him to the scene. There was an alternative proposition put to the expert that some of this DNA may have occurred in a transference situation. Clearly enough, the jury did not accept that that raised any reasonable doubt. Apart from a photograph taken of the offender wearing a shoe of the same type found at the scene, there was little other evidence to convict him apart from the DNA evidence. The jury must have accepted it to be in accordance with the Crown's case.
That means, therefore, that the relevant facts are that on this night, the offender entered, and I accept this to be the case, entered the premises more probably than not by opening the screen door which was closed but unlocked, went into the male occupant's bedroom, looked through the drawer but did not take any property. The male occupant arrived home. He realised that occurred and tried to leave before being apprehended. That was unsuccessful. He was wrestled to the ground by the male occupant, in the course of which a table was moved and chairs were either broken or damaged in some way, and the white makeup bag fell off the table. The offender dropped the microfiber cloth, left behind a shoe when he fled, and I accept left behind his baseball cap. Nothing was stolen. The damage to the property was relatively minor from the description.

Objective Seriousness

The objective seriousness is slightly elevated because there is more than one victim of this offence, namely, in particular, both the male and female occupants of the premises. The others who were present do not appear to have been affected in any way. There is no victim impact statement from the female occupant, but she gave evidence at trial and was clearly still somewhat upset and affected by this. That is to be expected in circumstances where members of the public find the privacy of their home violated by a stranger.
There is a victim impact statement from the male occupant. I accept that he has been adversely impacted by this matter, but I give little weight to most of the content of his victim impact statement. He was not available for cross examination. It is admissible pursuant to the provisions of the Evidence Act 1995 (NSW). He makes fairly concerning and broad statements as to the impact on him of this offence which do not appear to be consistent with either his response on the night or my observation of him in the witness box when he gave evidence. I have read it and taken it into account, but it cannot be given significant weight and certainly cannot be given any weight that would amount to an aggravating circumstance.
All break, enter, and steal offences, knowing there are people inside, are serious offences for the very reason that occurred on this night, namely the possibility that occupants of the premises become aware that their premises are being broken into and altercations occur. People should be entitled to go to bed, leave their balcony door unlocked if they so wish, and not run the risk of having people like this offender break into their house for the purpose of stealing. The sentence should carry an element of general deterrence in order to send a clear message that this behaviour will not be tolerated.
The objective seriousness is also informed by a number of factors referred to both pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and also the decision in R v Ponfield (1999) 48 NSWLR 327 ("Ponfield"). There are very few, if any, aggravating factors present. Very little of the Ponfield factors are present in this case. There was some limited planning, in my view, namely the wearing of a disguise, but that was a very limited matter. Whether or not a microfiber cloth was taken so that fingerprints could be removed would amount to an aggravating factor, namely more serious planning. It is an inference available. Whether it is the only inference available, it seems to me, is a matter of some conjecture. I do not take it into account as an aggravating factor. There is little else by way of aggravating factors which I take into account.
The objective seriousness of this offence is towards the bottom of the range on my finding, albeit perhaps not at the very bottom of the range. Nonetheless, it is of relatively low objective seriousness. As I have said, this is a verdict of guilty at trial. The offender is thus not entitled to any leniency or discount on the basis of a plea. He is, of course, however, not to be punished or given an increased sentence for that reason.

Sentencing Factors

He comes to court now as a person aged 40. He has a criminal record which, again, disentitles him to leniency, particularly as one of those matters is for an offence of aggravated break, enter, and steal, the circumstance of aggravation being in company. That offence occurred in March 2016. It was dealt with by way of a Community Service Order ('CSO'). The facts for that matter are before me on this sentence, as is the pre-sentence report compiled at the time. It was itself an offence of relatively low objective criminality and he served a CSO apparently without incident. There is nothing in the most recent sentence assessment report to indicate the contrary. The fact that he has a conviction for a very similar, if not identical offence, is a matter that affects an assessment of his prospects of rehabilitation but does not amount to an aggravating factor.
He also has a conviction for recklessly dealing with the proceeds of crime, for which he received a suspended sentence of 1 year and 11 months in September 2011, it being an offence that occurred in 2008. I know nothing more about that offence than that it was committed and dealt with in that way. He otherwise has largely traffic matters, including driving with a cancelled licence, which was dismissed pursuant to s 10, an offence which was committed on 1 December 2020 so therefore after the commission of this offence. There are earlier offences; one of larceny and one of driving with a suspended licence and one committed, it would appear, two days after the matter before me of driving with drugs present in the blood. That would appear to have been committed on 12 February 2020, dealt with by way of conviction but no other order.
KO: Just for your Honour's information, that was before this offence. Your Honour might've remembered there was evidence that the police
HER HONOUR: Yes, indeed. Okay, yes, I do.
KO: The police recorded him on a body worn, but at the -
HER HONOUR: I do remember. That's the Cinderella moment.
KO: Yes.
HER HONOUR: Yes, okay. Fine, good.
KO: But they didn't charge him afterwards because it was a preliminary test that came up as positive and it was confirmed later, so that's why he got charged later.
HER HONOUR: I will revisit that comment. I am now reminded that that offence in fact occurred before this matter, charged afterwards, but around about the same time. I am now informed that he was subsequently charged with an offence of stealing property in a dwelling house, which went to hearing in the Local Court on 14 April 2022, for which he was found guilty and is yet to be sentenced. That offence, it would appear, was committed on 13 January 2020, three days after the offence before me. He was not arrested for the offence before me until 20 February 2020 and so that subsequent offence of stealing in a dwelling house was committed at around about the same time as the offence before me, not after he was arrested or released to bail.

Time spent in Custody and on Bail

He, in fact, spent 5 months and 25 days, so almost 6 months, in custody bail refused following his arrest. He was released to bail on 13 August 2020. The bail conditions included a residence condition, but significantly, a curfew condition between 9pm and 6am. He has been subject to that curfew condition ever since. I calculate that as being approximately 22 months during which he has been subject to that curfew condition. It is open to the Court in circumstances where bail conditions are relatively onerous to take into account the periods on bail as some form of quasi custody. It seems to me that in fact one of those circumstances where it is appropriate to do so is where a curfew has been imposed, as here.
There is no hard and fast rule about the proportion of any such period of quasi custody that should be equated to a term of full-time custody, but I propose to take the period of time that he has spent on bail with that curfew as an equivalent to about 6 months' full-time custody. That means, in my view, it is appropriate to regard this offender as having spent 12 months either in custody bail refused or in a form of quasi custody up to today.

Subjective Factors & Prospects of Rehabilitation

I accept that his motivation for committing this offence was to obtain goods to sell to feed a drug addiction that he then had. He had the same drug addiction at the time he was sentenced for the offence in 2016, as is clear from the pre-sentence report tendered on that earlier sentence. He is a person of Filipino background. He lives in Sydney with his mother and one of his four children. Two of his other children live in the Philippines with his partner and another of his children live in the Philippines with their mother. Leading up to the offence in 2016, he had become addicted to methamphetamine. He claims not to have been using that drug since he was arrested for the 2016 offence. Clearly enough, that did not last.
He is employed on a casual basis as a car detailer and has held his current job for about six months. His criminal history of driving offences makes it clear that he has had an ongoing problem with the use of drugs. It is also clear that he returned to the use of drugs around the time that he committed the offence before me. That would also, no doubt, apply to the offence for which he is to be sentenced in the Local Court.
He pleaded not guilty and does not admit having committed this offence. Therefore, there is no evidence of remorse or taking responsibility for his offending behaviour. He did, however, I accept, disclose to Community Corrections that at the time of the offence, he was associated with antisocial peers and, of course, it would appear he was also using drugs. He does not appear to be a violent man and the physical interaction that occurred between him and the male occupant would appear to be as a result of his attempting to flee and to get away and the male occupant trying to prevent that. Even though he does not admit having committed this offence, I accept that since being released to bail, he has stopped using drugs and he has not had contact with the negative associates who he referred to in the interview with Community Corrections.
He did undertake some intervention on his release to bail, namely the Royal North Shore Hospital drug and alcohol program. It was a condition of his bail that he do so. I understand that he did so and that has now ended. There is no indication that he breached any of his bail conditions, which have now been on foot for almost two years. His rehabilitation is ongoing. It could not be said to be excellent given his prior history and the fact that on a prior occasion, having given up drugs and understanding its connection to his offending behaviour, he relapsed into drug use. However, his rehabilitation would be far better assisted if he were able to continue it in the community as opposed to a term of full-time imprisonment. He is assessed by Community Corrections as being a medium to low risk of reoffending and I accept that assessment. The need for specific deterrence here is relatively low given that he has already undertaken the treatment as required and that there is no evidence of similar or any other offending since offending since he was released to bail.

Determination of Sentence

In my view, the s 5 threshold is crossed. It has been argued on behalf of the offender that that is not the case given the relatively low objective criminality. Overall, however, taking into account all of the factors referred to in s 3A of the Crimes (Sentencing Procedure) Act 1999, it seems to me that the s 5 threshold for imprisonment is crossed. The appropriate sentence would be one of about 2 and a half years. There is no discount available for a plea of guilty here.
I do accept that if it were available, it is appropriate that any term of imprisonment in this matter be served by way of Intensive Corrections Order ('ICO'). The paramount consideration in making that determination is the safety of the community. The community's safety would not, in my view, be compromised by this sentence being served in the community if that were available. He is otherwise an appropriate person to serve his term of imprisonment by way of ICO. He has served, as I have already found, the equivalent of 12 months in custody pre-sentence. It is not open to order a term of imprisonment which is to be served by way of ICO to be backdated, nor is it open to impose a non-parole period.
I refer to the dicta of Simpson J in the Court of Criminal Appeal in Mandranis v R [2021] NSWCCA 97 and in particular, with respect, follow the approach taken by her Honour as indicated in paragraph 61 of that judgment. Having found that it is appropriate that a term of imprisonment be served by way of ICO, it is appropriate for the Court to adjust what the term of imprisonment might be to take into account the pre-sentence custody. In this case, that would then give rise to a sentence of 18 months, which in my view is the appropriate sentence, taking all of those matters into account. I then will order that it be served by way of ICO.

Formal Sentence Orders

Therefore, I make the following formal orders: 1. The offender is convicted. 2. He is sentenced to a term of imprisonment of 18 months, which I order to be served by way of ICO. 3. He is to be subject to the standard conditions. 4. Additional condition that he undertake 250 hours community service. 1. NB: Offender has been found suitable to undertake a community service condition according to the Sentence Assessment Report.

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 December 2022

R v Camarse

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