R v Connelly

The sentence hearing

1. The sentence hearing took place on Tuesday 20 August 2019 at Coffs Harbour District Court. The Crown Sentence Summary became Ex A. It included a Statement of Facts which may be summarised as follows.
2. The offender was born in 1986 and is now 32 years of age. On 26 October 2018, at approximately 10.15pm, he was observed by police in Coffs Harbour carrying two skateboards and two backpacks. A search of the backpacks located the following items with price tags attached: Two shirts One jumper Skateboard tool in packet A bong Small set of scales
3. The offender was wearing a cap with a price tag attached. One of the skateboards he was carrying also had a price tag attached and located in his bag was a PS Play Station, two mobile phones, eight skateboard stickers, a number of other small drug paraphernalia, a long-handle flat screwdriver, a spanner and two allan keys. The screwdriver was bent and the offender had $195.00 cash on his person.
4. The offender was informed that he was under arrest for goods in custody and was to be taken to the police station. He responded, "No Miss", and as the police officer tried to apprehend him, he decamped.
5. Inspection of premises a short distance away, known as Monterey Arcade, showed that four shops within the arcade had signs of forced entry. The offender had removed two perspex skylights, allowing him to gain entry into the arcade, then into each of the four shops. A number of light fittings were broken and perspex from those light fittings was located on the ground in the arcade.
6. The owner of the premises known as Popsgood Skate Shop attended and identified items seized from the offender as belonging to his shop. He also identified the play station and mobile phones as personal items which had been taken from the shop.
7. The lock on the door of premises known as Enchanted Beauty, was damaged and $25 in cash taken from those premises. The premises known as Wrecked Vintage Concept Store, also had a damaged entry door and $100 taken from the till (Count 3). The doors to Luxe Artistry Hair Boutique had been forced open (Count 6).
8. An estimate of stock taken from the Skate Shop came to $2,000 worth of stock. In addition, the following costs resulted from damage to the building: $137.50 - initial assessment, removing broken light and insuring safety $938.00 - after hours service call by locksmith to secure premises $484.00 - after hours attendance to refit skylight A further quote of $778.80 was obtained for disposal of six light fittings and supplying eight new fittings.
9. The offender was arrested the following morning. When asked why he had fled from police the previous evening, he replied: "I'm sorry Miss, I just wanted to see my son."
10. Exhibit A included the criminal record of the offender. Between 2001 and 2014, that record comprised an appalling lack of respect for the law, involving some 32 offences for break and enter, together with offences for destroy or damage property, possession of prohibited drugs, common assault, use offensive language in/or near school or public place, dishonestly obtain property by deception, receive/dispose stolen property, assault occasioning actual bodily harm, resist arrest, and assault officer in execution of duty.
11. Following his last conviction on 7 July 2014 for break and enter dwelling house within intent to steal, for which he was sentenced to a term of six months imprisonment, there was no offending until he was convicted in November 2017 of two offences of behave in offensive manner, for which he was sentenced pursuant to s 10A to conviction with no other penalty.
12. Unsurprisingly, given the number of offences recorded between 2001 and 2014, he had served a number of terms of imprisonment of increasing length during those years. He was last released on parole on 30 January 2015.
13. Exhibit A contained photos of the premises and the damage observed therein, together with invoices for the repairs referred to above.

The offender's evidence

1. The offender gave evidence under oath. He is aged 32 years and was born in Campbelltown, moving with his family to Coffs Harbour in 1999. He is an indigenous man brought up by his mother. He attended school in Coffs Harbour to year 8 and then worked as a casual labourer on banana plantations for some time.
2. The offender commenced using cannabis in high school and since had used other drugs, including methamphetamines and ecstasy pills. He gave evidence that all of his offending, including numerous break and enter offences, were carried out under the influence of drugs. Any proceeds of those offences were used to obtain more drugs.
3. The offender gave evidence that the gap of three years in his criminal record between 2014 and 2017 occurred as a result of him obtaining custody of his son, who was then aged two years and is now aged six. His father was never involved in his life, and his future intention was to be the father to his son that his own father was not to him. In 2017 he had reunited with an "old crowd" and had started to use drugs again, which led to the index offences.
4. In cross-examination, the offender was asked what steps he had taken in the past to address his drug and alcohol issues. He gave evidence that he had only got drug counselling, however, whilst on remand, he was ineligible for any relevant programs whilst in custody. He was aware that in the community, there were programs such as AA available.
5. He was also asked what positive support he had in the community. His mother is presently looking after his son in Coffs Harbour, and he has a amicable relationship with his ex-partner, the mother of his son.

The offender's submissions

1. The offender relied on a written outline of submissions submitted by his solicitor. Those submissions relied on the guideline judgment in R v Ponfield [1999] NSWCCA 435, and submitted that each of the three offences fell below the mid-range of objective seriousness for such offences. It was submitted that the following factors should be taken into account in assessing the objective seriousness: 1. There were no occupants present at the time of the offences which occurred on business premises. 2. The serious indictable offences committed were larcenies. 3. The offender was under the influence of illicit substances at the time of the offence, and 4. There was a degree of damage to the premises.
2. It was submitted that the offender had entered an early plea of guilty and was entitled to a discount of 25% on sentence. Aggravating features pursuant to s 21A(2) were as follows: 1. The offender has previous convictions for similar offences. 2. There was a degree of planning involved. 3. There was damage, however, the offender was willing to pay the insurance excess.
3. Mitigating factors pursuant to s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") were as follows: 1. There was no injury or emotional harm and loss was not substantial. 2. The offender's plea of guilty in the Local Court provided evidence of contrition.
4. The offender's solicitor submitted that the offender was an indigenous man of 32 years of age. He had come from a broken home and was exposed at an early age to alcohol and illicit drugs. A finding of special circumstances was submitted to be warranted, given his need for supervision and controlling his substance intake upon his return to the community.
5. On the question of concurrency or accumulation, it was submitted that the offences amounted to one course of criminal conduct and there should be some accumulation on sentence, referring to R v Cahyadi [2007] NSWCCA 1. Further, the offender had been in custody since 12 March 2019 and any sentence should be backdated to that date.
6. In his oral submissions, the solicitor for the offender rehearsed the written submissions. It was remarkable there had been a three year gap in the offender's criminal history between 2014 and 2017, and it was clear that the offender cared for his son, and his son might be the catalyst for him turning his life around. In those circumstances, a finding of special circumstances was warranted.

The Crown submissions

1. The Crown also relied on a thorough and detailed written outline of submissions. The Crown conceded that the offender was entitled to a 25% discount for pleading guilty at an early stage.
2. The Crown conceded that the objective seriousness of the offending here all fell within the lower range for the relevant offences.
3. The Crown submitted that with the exception of Count 1, there were two aggravating features applicable to all of the offences, namely: 1. Section 21A(2)(d) - The criminal history of the offender which included 32 break and enter offences from 2006 to the present. 2. Section 21A(2)(n) - The offending involved some planning. Here there was a degree of sophistication in that planning in that the offender gained entry to the arcade through the skylight and had the requisite tools to then open the doors of the various premises. Further, no fingerprints were left, indicating that he wore gloves whilst committing the break-ins.
4. The Crown conceded the following mitigating feature in respect of all of the Form 1 matters, namely, Counts 2, 3, 5 and 6, in that the harm caused was not substantial. The Crown further conceded that the offender had demonstrated a degree of remorse for escaping police custody by apologising to the police officer the following day.
5. In respect of Count 1, the Crown submitted that it was an aggravating feature of the break and enter, pursuant to s 21A(2)(g), that the loss was substantial. The Crown, properly in my view, resiled from a previous position that the loss had led to the closure of the relevant business. There was no evidence upon which to make that finding. It was submitted that Count 1 was the most serious of the offences, for which the offender was being sentenced. It fell in the low range of objective seriousness for offences of this kind.
6. It was the Crown submission that no penalty other than a term of imprisonment was appropriate here.
7. In respect of the offence of damage property to the Monterey Arcade, the Crown conceded the offending fell below the mid-range of objective seriousness. The repairs cost a sum approaching $2,000 and the insurance excess was $500.
8. The Crown further submitted that the offence of escape from police custody also fell below the mid-range of objective seriousness for the offence. However, the Crown submitted that the s 5 threshold was met and a term of imprisonment was warranted for that offence.
9. In her oral submissions, the Crown submitted that the fact that the offender was affected by alcohol on the day of the offences was not a mitigating factor pursuant to s 25AA of the CSPA. Further, the principles in Bugmy v R (2013) 302 ALR 192 did not apply just because the offender was an indigenous man. There was no evidence of a lifetime of deprivation before the court so as to attract Bugmy principles.
10. The Crown further submitted that the prospects of the offender being rehabilitated were somewhat guarded, given his prior supervision on parole.

Determination

1. Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
2. I accept the Crown's submission that the objective seriousness of the offending for each of the three offences fell below the mid-range of objective seriousness for such offences. In respect of the offence of break and enter commit serious indictable offence pursuant to s 112(1)(a) of the Crimes Act, the objective seriousness fell within the middle of the lower range for such an offence. It still constituted serious offending. In respect of the offence damage property, in respect of the Monterey Arcade, pursuant to s 195(1)(a) of the Crimes Act, the objective seriousness fell below the middle of the low range for such an offence. In respect of the offence of escape police custody, the objective seriousness of the offending there fell at the lower end of the range for such an offence. The offender decamped on foot, and was found and arrested at his home the following day.
3. In respect of Count 1, I find that an aggravating factor was that the offence involved a substantial loss to the owner of the premises, pursuant to s 21A(2)(g). The following aggravating factors are applicable to all of the offences: 1. The offender's criminal history, pursuant to s 21A(2)(d), and 2. Pursuant to s 21A(2)(n), this was criminal conduct which involved some planning and organisation. The offending involved a degree of sophistication which meant that the offender gained entry to the arcade through a skylight, and had the requisite tools to gain entry to the individual shops.
4. In all but Count 1, a mitigating feature pursuant to s 21A(3)(a) was that the harm caused was not substantial. This extended to the matters on the Form 1.
5. General deterrence is important in sentencing for offences of dishonesty involving the break and entering of business premises. Members of the community should be able to go about their business without such criminal conduct affecting them, and a clear message must be sent to like-minded members of the community that such offending will attract severe penalties when warranted. Specific deterrence is also important here, given the offender's lengthy criminal history prior to 2014 for similar offences. He must understand that if he continues to offend in this way, the courts will impose increasingly lengthy sentences upon him for his criminal conduct.
6. I have taken into account the maximum penalty proscribed by Parliament of 14 years imprisonment for the offence pursuant to s 112(1)(a) of the Crimes Act 1900, the maximum penalty of 5 years imprisonment for the offence pursuant to s 195(1)(a) of the Crimes Act 1900, and the maximum penalty of 2 years imprisonment for the common law offence of escaping lawful custody. The maximum penalties are guidelines in the sentencing process.
7. The offender is entitled to a 25% utilitarian discount on sentence in respect of his plea of guilty. I also accept that he has expressed remorse for his criminal behaviour. I was impressed with the evidence given by the offender as to his background, and there are significant subjective matters to be taken into account. Against an appalling criminal record, upon his release from custody in early 2015, he did not offend again for a period of almost three years. In that time he took responsibility for his only son, and expressed a desire to demonstrate that he would be a good father in the future. He had no father figure when he was growing up and therefore no role model. Otherwise, there is no evidence establishing that he has led a lifetime of deprivation which attracts the principles in Bugmy v R, supra. Rather, his repeated offending was borne from his drug and alcohol abuse, which he had addressed upon his release into the community until he fell in with the wrong crowd prior to the subject offending. His criminal history disentitles him to any leniency in sentencing.
8. I intend to sentence the offender by way of an aggregate sentence pursuant to s 53A of the CSPA. I find the threshold in s 5 has been crossed in respect of Count 1, and to ensure transparency in the sentencing process, I am required to give indicative sentences for each of the offences. In respect of Count 1, I am also required to take into account the four matters on the Form 1, which must lead to some accumulation in sentence. The indicative sentences are as follows: Sequence 1 - Break and enter commit serious indictable offence (larceny) pursuant to s 112(1)(a) of the Crimes Act 1900- 18 months imprisonment Sequence 7 - Damage property Monterey Arcade pursuant to s 195(1)(a) of the Crimes Act 1900 - 6 months imprisonment Sequence 4 - escape lawful custody - 2 months imprisonment
9. It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be "just and appropriate" to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved: "[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
10. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
11. The offending here constituted one course of criminal conduct. Applying those principles, I intend to sentence the offender to a term of imprisonment of 20 months, with a non-parole period of 10 months to date from 12 March 2019. I have certified that I have taken the matters on the Form 1 into account in arriving at that sentence.
12. I further find special circumstances are established here pursuant to s 44(2) of the CSPA. The offender will require an extended period of supervision on his return to the community, and assistance with his drug abuse issues, and relapse prevention. The statutory ratio between head sentence and non-parole period will therefore be varied.

Orders

1. I make the following orders: 1. You are convicted of the offence of break and enter commit serious indictable offence (larceny) in respect of the Popsgood Skate Shop, pursuant to s 112(1)(a) of the Crimes Act 1900. 2. You are convicted of the offence of damage property Monterey Arcade pursuant to s 195(1)(a) of the Crimes Act 1900. 3. You are convicted of the offence of escape lawful custody. 4. I sentence you by way of an aggregate sentence pursuant to s 53A of the CSPA. 5. You are sentenced to a non-parole period of 10 months to commence on 12 March 2019 and to expire on 11 January 2020. 6. The balance of term will be a period of 10 months from 12 January 2020 and to expire on 11 November 2020. 7. Sequences 6 and 10 are withdrawn and dismissed. 8. Matters on the Form are taken into account.

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: 29 August 2019