R v Dylan Peter Gray

OBJECTIVE SERIOUSNESS

1. In considering the objective seriousness of the offences, sequence 5 involved a home of the victims from whom it was intended to steal. This is a matter of aggravation under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) [2] not precluded from being taken into by the elements of the offence. [3]
2. The Crown did not submit that the offences were committed at a time where it was expected that the premises would be occupied [4] but contended that in relation to sequence 5 the home owner nevertheless suffered a loss of safety and security. I do not view this as adding anything beyond what was mentioned earlier in relation to s 21A(2)(eb) of the 1999 Act.
3. Notwithstanding the fact that the building in sequences 8 and 9 was the same the suites and occupiers were different. Accordingly, I would not regard the premises as being the same - a matter that would otherwise be aggravating. [5]
4. There is no evidence suggesting the offences involved professional planning, organisation or execution. [6] Nor did the Crown contend that the offences could be considered as being part of a planned or organised criminal activity. [7] However I accept the Crown's contention that the offences could not be regarded as spontaneous and some planning was involved. This is borne out by the time of the offences when the premises were accessible but unoccupied, and the use of the flathead screwdriver. Nevertheless the sophistication involved was not great. [8]
5. The serious indictable offences that were "intended" in sequences 5 and 6 and "committed" for the purpose of sequence 9 were the offences of larceny. The value of the goods involved in sequence 9 is $7750. The items taken were plainly for the offender's financial gain [9] and were conceded as such. There is no suggestion of anything of sentimental value being involved. [10] Nor was it submitted that there was substantial harm for the purposes of s 21A(2)(g) of the 1999 Act.
6. Serious indictable offences covered by the ss 112 and 113 offences extend to offences punishable by up to 5 years imprisonment to those punishable by life. [11] The serious indictable offence in each instance is larceny which pursuant to s 117 of the 1900 Act is punishable by up to five years imprisonment. Such a serious indictable offence is at the lower end of offences contemplated by the sections. However whilst the seriousness of the "serious indictable offence" is an appropriate matter to take into consideration, this factor alone is not determinative as objective seriousness which depends on all facts and circumstances of the offence and the range of offences of its kind which come before the Court. [12]
7. Whilst the objective seriousness of the three offences may individually be viewed as being in the lower level of objective seriousness, the multiplicity of matters over a short period makes them more serious than if they were otherwise isolated. [13]
8. Overall I would view still view the offences as falling just below the mid-range of objective seriousness.
9. Despite the relatively short period of time involved Sequence 6 involved leading police into believing the offender was stopping and then engaging the vehicle in a manoeuvre that involved reversing and accelerating, and in the process, narrowly avoiding four police officers whilst departing. I would regard this offence as being in the high-range of objective seriousness.

Breach of parole

1. It is not in issue that at the time of the offences the offender was released to parole. It was a condition of the offender's parole, that:- "The offender must, until the order ceases to have effect or for a period of 3 years from the date of release (whichever is lesser), submit to the supervision and guidance of the Community Corrections Officer assigned to the supervision of the offender for the time being and obey all reasonable directions of that Officer."
2. On 13 August 2015, Community Corrections was contacted by NSW Police who advised that they wanted to speak to Mr Gray in relation to a number of offences that were allegedly committed on 13 August 2015. Community Corrections established contact with Mr Gray on the same day and directed him to hand himself in to the Police. He was reported to have advised Community Corrections that he would do so after obtaining legal advice. The offender did not follow that direction and on 17 August 2015, further contact was established. He advised that he was aware that contact with the police was imminent. He was again directed to hand himself in and while he declined to provide a timeframe, he reported that he would attend his local Police station. On 18 August 2015, Community Corrections was again contacted by NSW Police who advised that they wanted to also speak to the offender in relation to further offences which were committed on 15 August 2015.
3. Following contact with Mr Gray on 13 August 2015, it was revealed that he was no longer residing at the approved residence, as he became aware that NSW Police wanted to speak with him in relation to the alleged offences. The offender did not provide Community Corrections with details of his current whereabouts. His mother advised that there was no physical contact with the offender since 12 August 2015.
4. In circumstances where he was wanted by police and had actively chosen to avoid this process, as well as his failure to reside at approved accommodation, it was recommended that his parole be revoked.
5. The solicitor for the offender submitted that s 21A(2)(j) of the 1999 Act that is a factor going more to the offender's prospects of rehabilitation and future offending. I do not consider the circumstances are so confined particularly since likelihood of reoffending is referred to s 21A(3)(g) of the 1999 Act.
6. In Porter v R, Johnson J stated- "[86] … it seems to me that the purpose of s.21A(2)(j) is to capture the common law principle that an offence committed whilst a person is subject to conditional liberty, whether on bail or whilst subject to a good behaviour bond or a community service order or periodic detention or parole, constitutes an aggravating factor for the purpose of sentence. The essence of the provision is that the offender commits a further offence whilst subject to an order of a court in criminal proceedings requiring, amongst other things, that the offender be of good behaviour … " [14]
7. It is more aggravating in this case that the offences in respect of which the offender was on parole were of a similar nature to those for which he is now being sentenced. [15]

Plea of guilty

1. The offender entered pleas of guilty at the earliest opportunity and it is conceded that he is entitled to maximum discount of 25 %. [16]

Remorse

1. In respect of the three property offences the offender accepted responsibility for his offending and stated that understood the effect on others. He stated that he was appalled by his behaviour and recognised that he has hurt a lot of people.
2. A forensic Psychologist Report completed by Mr Jason Borkowski, psychologist was admitted as Exhibit 1. In Mr Borkovski's report it is noted that the offender discussed his past and present offences expressed disappointment with himself and added that when he is not under the influence of illicit substances he regrets taking things and considers what it must be like to have personal items stolen.
3. I am satisfied that in respect of the three property offences remorse has been established within the terms of s 21A(3) of the 1999 Act in the sense that the offender has acknowledged the injury loss or damage he has caused. There is no evidence that the offender has made any reparation.
4. No remorse was expressed in relation to the offence of reckless driving,

Previous offending

1. The offender has a lengthy criminal history. A significant part of his antecedents comprises property offences including break enter and steal offences, where circumstances of aggravation applied. It is clear that the offender is a recidivist property offender. He has been convicted of a number of these offences and had served four years of a seven year sentence when he was released on parole on 16 July 2015. His current head term is due to expire on 12 July 2018. The offenders record does not entitle the offender to have his sentence mitigated pursuant to s 21A(3)(e) of the 1999 Act and no submission to this effect was made by his solicitor.

Likelihood of re-offending

1. The offender was the third oldest of four children in his family. He is not in a relationship and has no children. His parents continue to support him and visit him in custody. Although he left home at the age of 18, the evidence before me was that he could return to live with them when released from custody.
2. His educational background demonstrated frequent disruption including expulsions from school. He left school at age 15. He commenced an apprenticeship as a chef attending TAFE however this was terminated following disagreement with one of the managers. Thereafter he worked for brief periods in warehousing and was mostly unemployed up until the custodial sentence which he is now serving the balance of parole. In custody he completed a personal trainer's course but found it difficult to obtain employment following release.
3. He told Mr Borkovski that he commenced working in furniture distribution and assembly whilst on work release during a previous sentence which lasted for approximately 6 months. However those privileges were apparently revoked and he did not subsequently recommence with that employer. He secured part time work in gyprocking and plastering however that work was intermittent and unpredictable and having re-established his drug use, he became unreliable in his work obligations and work capacity.
4. Mr Borkovski's report confirmed that the Plaintiff's illicit drug use commenced at age 15 with cannabis and then progressed to using heroin at age 17. At age 16, he is reported to have used amphetamines and ecstasy every couple of weeks and occasionally cocaine. He became addicted to heroin and stated that he was using it daily within a short period of time.
5. Mr Borkovski confirmed that the offender has attended drug rehabilitation programmes since 18 and twice been on the Compulsory Drug Treatment Programme. The offender gave evidence that in respect of the Compulsory Drug Treatment Programme he progressed to Stage 3 only to be revoked and returned to custody on both occasions when relapsing. Mr Borkovski opines:- "Over time, Mr Gray appears to have developed a reliance on illicit substances as a maladaptive means of coping with unwanted cognitive and emotion states associated with his anxious and depressive symptomology." [17]
6. Since being returned to custody the offender has been place on the Suboxone programme being an opiate therapy programme. He is recorded to acknowledge this as being beneficial and Mr Borkovski records that he has accepted pharmacotherapy as an adjunct treatment approach to manage opiate dependence.
7. Mr Borkovski states:- "As a result of his previous engagement in intensive drug and alcohol treatment and rehabilitation programs, Mr Gray appears to have insight into the underlying causal factors that contribute to his drug use, and is aware of strategies he needs to employ to try and remain abstinent from illicit substances. Thus further attendance in intensive group based drug rehabilitation programs would not likely provide any additional benefit for Mr Gray. Rather, it would appear to be more beneficial for him to engage in individual counselling with a service provided who can assist him in revising his individual risk factors and relapse prevention strategies to manage his drug use. Concurrent with individual intervention, he would likely benefit from being provided Opiate Substitution Therapeutic support, and opportunities to engage in education and employment training, and establishment of prosocial support networks." [18]
8. Both the offender and his father gave evidence. There is no issue that the offender has good familial support.
9. The offender informed the Court of the effect of the recent passing of his grandfather and consequent cause for reflection. He stated that "life is too short." He also stated that he needed time to think and does not want to be in custody. Further, he stated that he realises he has potential and he knows he can be something. He stated that he was prepared to do what it takes to be off drugs and plans to be with his father who is looking at setting up a business. He stated that he was willing to go to "the end of the earth" and not let his father down. However until the business is established he stated he could get employment with one of his father's customers.
10. The offender's father Mr Peter Gray is an ex-plumber by trade and has indicated a proposal to recommence a business so that when the offender is released he has access to employment and can go and obtain trade qualifications at TAFE.
11. Mr Borkovski's report however indicates that the offender's goal is to complete his personal trainer's qualifications and try and secure work in the industry. He further records that the offender has reservations about working with his father and worries that he might let his father down again.
12. Bearing in mind the fact that the offender had previous occasions on which to reflect on his criminal behaviour, but had nevertheless failed when given the opportunity in the community the Crown submitted that prospects of rehabilitation were guarded.
13. I take account of the offender's plea, his remorse, his stated intentions and his familial support. Nevertheless the offender's background, record together with the significant challenges he faces suggests his prospects of rehabilitation must be viewed at best as guarded

SENTENCE

1. The offender through his solicitor acknowledged that no other penalty other than a term of imprisonment is appropriate. [19]
2. In sentencing for sequence 5, I take account of the offences in sequence 1 and 2 the subject of the Form 1. I do so in accordance with the judgment of the Court delivered by Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [20] noting the need for greater weight to personal deterrence and retribution in sentencing.
3. I note the offender re-entered custody on 20 August 2016 and is currently serving the balance of parole of his previous sentence. His revocation occurred a relatively short time following his release.
4. In these circumstances it cannot be said that pre-sentence custody relates solely to the present offences under consideration. In these circumstances, I propose to commence the sentence from today's date pursuant to s 47(1)(a) of the 1999 Act. [21]
5. In sentencing the offender, the need for adequate punishment, protection of the community specific and general deterrence and denunciation must assume significant weight. In structuring the sentences, recognition of the harm to the victims would prevent the sentencing being for each sequence being wholly concurrent. However in respect of sequences 5 and 6 on the one hand and sequences 8 and 9 on the other, the overlapping criminality requires a level of concurrency pursuant to Pearce v R. [22]
6. Whilst I have not lost sight of the need to promote the rehabilitation of the offender who remains a relatively young man, this cannot rank as significant a factor for the purposes of sentencing in these circumstances.
7. In a case such as this, special circumstances for the purposes of s 44(2) of the 1999 Act cannot be found to assist in the rehabilitation of the offender unless there are significant positive signs which show that a longer than usual period of parole is likely to be successful. [23] The offender's placement and apparent acceptance of an opiate therapy programme using Suboxone even when combined with his stated intentions and family support does not in my view provide sufficient positive signs; particularly bearing in mind his previous relapses. At best what can be said in the offender's favour is that there are some signs indicative of some capacity for rehabilitation. [24] As I have stated I regard his prospects of rehabilitation as being guarded at best.
8. Whilst the effect of this sentence when combined with the existing sentence the offender is serving is to result in a relatively short parole period the past and present sentences are separate. By commencing the present sentence from today's date the offender is benefiting from a level of concurrency.
9. Accordingly, I decline to find special circumstances.
10. In considering the range of factors to be taken into account I bear in mind the maximum penalties being 10 years for sequence 6 and 8 and 14 years for sequence 9. In relation to sequence 6 the subject of the s 166 certificate, the maximum penalty is 9 months imprisonment and /or $2000 fine.
11. I propose to deal with the matter by way of aggregate sentence under s 53A of the 1999 Act.
12. The offender is convicted on each sequence.
13. The indicative terms I would impose bearing in mind the pleas of guilty and taking account of the offences in the Form 1 which the offender has requested be taken into account for sequence 6 are: 1. Sequence 5 - 2 years and 3 months; 2. Sequence 6 - 5 months; 3. Sequence 8 - 1 years and 6 months; and 4. Sequence 9 - 2 years and 6 months.
14. Having regard to the principles of totality and accumulation, I set a non-parole period of 3 years and 9 months to date from today (16 December 2016) and to expire on 15 September 2020. I impose an additional term of one year and three months to commence on 16 September 2020 and to expire on 15 December 2021 at which time the offender is to be eligible to be released to parole.
15. The offender is disqualified from driving for three years.

Endnotes

1. Hereinafter the "1900 Act"
2. Hereinafter referred to as the "1999 Act"
3. Palijan v R [2010] NSWCCA 142 at [21] - [22] (Barr AJ with McClellan CJ at CL and Hislop J agreeing)
4. Attorney General's Application (No 1) under s 26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson (1999) 48 NSWLR 327; [1999] NSWCCA 435, 338 [48] (ix) (Grove J with Spigelman CJ and Sully J agreeing)
5. Attorney General's Application (No 1) under s 26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson (1999) 48 NSWLR 327; [1999] NSWCCA 435, 338 [48] (vii) (Grove J with Spigelman CJ and Sully J agreeing)
6. Attorney General's Application (No 1) under s 26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson (1999) 48 NSWLR 327; [1999] NSWCCA 435, 337 [48] (ii)
7. s 21A(2)(n) of the 1999 Act
8. Rich v R [2007] NSWCCA 193 at [15] - [21] (Giles JA with James and Hislop JJ agreeing)
9. s 21A(2)(o) of the 1999 Act
10. Attorney General's Application (No 1) under s 26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson (1999) 48 NSWLR 327; [1999] NSWCCA 435, 337 [48] (viii)
11. Crimes Act 1900 (NSW) s 4
12. R v Huynh [2005] NSWCCA 220 at [27] (Simpson J with Barr and Latham JJ agreeing)
13. s 21A(2)(m) of the1999 Act
14. Porter v R [2008] NSWCCA 145 at [86] (Johnson J with Bell JA and McCallum J agreeing)
15. Frigiani v R [2007] NSWCCA 81 at [24] (Howie J with Simpson and Barr JJ agreeing)
16. s 22 of the 1999 Act and R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
17. Exhibit 1, Report of Mr Jason Borkowski dated 19 October 2016, p 11
18. Exhibit 1, Report of Mr Jason Borkowski dated 19 October 2016, p 13
19. s 5(1) of the 1999 Act
20. (2002) 56 NSWLR 146; [2002] NSWCCA 518
21. Callaghan v R [2006] NSWCCA 58
22. Pearce v R (1998) 194 CLR 610; [1998] HCA 57
23. R v Carter [2003] NSWCCA 243 at [20] (Dunford J with Ipp JA and James J agreeing); see generally: R v Lulham [2016] NSWCCA 287
24. R v Tuuta (2014) 239 A Crim R 399; [2014] NSWCCA 40, 409 [57] (Bellew J with Bathurst CJ and Hoeben CJ at CL agreeing) 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: 17 January 2017