R v Foster

[2024] NSWDC 2

District Court of NSW|2024-01-23

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At a glance

Source facts

Court

District Court of NSW

Decision date

2024-01-23

Source

Original judgment source is linked above.

Judgment (30 paragraphs)

[1]

The Events

HIS HONOUR: On the evening of 7 January and early morning of 8 January 2023, on two occasions within hours of each other, the Offender, Matthew Foster, was involved in breaking into the same home while the owners were asleep and stole a different Mercedes Benz vehicle on each occasion. The first event he conducted on his own, the second with his co-accused, Mr William Rogers, whose sentence I will deal with immediately following. The Offender is an accessory before the fact in relation to the second event, because he waited in the car outside whilst Mr Rogers took the second car from the garage.

[2]

The charges

The Offender is to be sentenced for the following offences: 1. Aggravated enter dwelling with intent knowing people there, entering a dwelling house with intent to steal car keys and other items while there were persons present, contrary to s 111(2) Crimes Act 1900. The maximum penalty is 14 years imprisonment. 2. Aggravated enter dwelling with intent knowing people there, for being an accessory before the fact to the entering of a dwelling house with intent to steal a black Mercedes Benz while there were persons present, contrary to s111(2) Crimes Act 1900. The maximum penalty is 14 years imprisonment. 3. Steal Motor vehicle, for stealing a Black Mercedes Benz bearing NSW registration plates [xxx]04E, contrary to s154F Crimes Act 1900. The maximum penalty is 10 years imprisonment. 4. Steal Motor vehicle, for being an accessory before the fact to the stealing of a Black Mercedes Benz bearing NSW registration plates [xxx]11E, contrary to s154F Crimes Act 1900. The maximum penalty is 10 years imprisonment.

[16]

The Offender's criminal history

The Offender has a long and sorry criminal history. Set out below is but a sample focussing on similar offences to the ones before me (Exhibit B). Dates H Number Charge Sentence Offence 1/7/2020 H78618140/2 Drive conveyance taken without consent of owner 12 months imprisonment 11/9/2020-10/9/2021 Sentenced 21/4/2021 NPP 6 months Offence 29/8/2020 H74262410/2 Take & drive conveyance w/o consent of owner Taken into account on form 1 (aggregate sentence 36 months) Sentenced 24/9/2021 Offence 29/8/2020 H74262410/8 Take & drive conveyance w/o consent of owner Indicative 9 months Sentenced 24/9/2021 Offence 16/8/2020 H75722718/8 Take & drive conveyance w/o consent of owner Taken into account on form 1 (aggregate sentence 36 months) Sentenced 24/9/2021 Offence 25/8/2020 H75345804/5 Take & drive conveyance w/o consent of owner Taken into account on form 1 (aggregate sentence 36 months) Sentenced 24/9/2021 Offence 5/8/2020 H75182906/1 Enter vehicle or boat without consent of owner/occupier S10A Sentenced28/9/2020 Offence 22/8/2020 H79624088/1 Enter vehicle or boat without consent of owner/occupier Fine $220 Sentenced 11/1/2021 Offence 15/2/2019 H71026508/3 Take & drive conveyance w/o consent of owner Indicative sentence 12 months Sentenced 21/2/2019 Offence 30/1/2019 H358904193/1 Enter vehicle or boat without consent of owner/occupier Fine $300 Sentenced 11/2/2019 Offence 28/6/2018 H67566670/3 Take & drive conveyance w/o consent of owner 9 months imprisonment 29/6/2018-28/3/2019 with NPP 3 months Sentenced 9/8/2018 Offence 5/2/2018 H130588302/1 Take & drive conveyance w/o consent of owner 3 months imprisonment 9/7/2018-8/10/2018 Sentenced 9/8/2018 Offence 25/3/2016 H61596965/7 Received M/V part-theft 9 months 25/3/2016-24/12/2016 Sentenced 30/3/2017 Offence 28/9/2014 13months and 15 days imprisonment Sentenced 6/1/2015 H56508868/1 Take & drive conveyance w/o consent of owner 12/3/2015-26/4/2016 with NPP 7 months

[20]

Subjective factors

The Offender was 29 years of age at the time of the offences.
As I have said, he has a lengthy criminal history. It can be readily seen that he has been involved in many crimes similar in nature to the present offending. Custodial sentences do not appear to have deterred the Offender from re-offending. Accordingly, I do not think subjective deterrence has much part to play in this exercise, however, the Offender's criminal history very much impacts on questions such as his prospects of reoffending (which I consider to be high) and the very important matter to be taken into account, that is, protection of the community.
As far as contrition and remorse are concerned, I don't think the Offender's plea to these matters should be taken into account any further than the statutory discount. This is because it appears to me that the Crown case against him was very strong. However, since going into custody, he has demonstrated a desire to improve his ways which I think is demonstrable of a level of remorse and /or perhaps contrition. Certainly, he appears to have been trying very hard to change his ways. He finally seems to have come to appreciate that he will spend the majority of his life in custody if he does not stop breaking the law.
The Offender has tendered on the hearing before me a psychological report of Dr Susan Hawil, a letter from the Offender to the Court, an affidavit of the Offender's mother, an affidavit of the Offender's solicitor, together with various certificates indicating successful completion by him of various courses whilst in custody.
The Offender's subjective case can be summed up as follows. 1. The Offender had a reasonably difficult childhood due to the breakup of his parents leading to divorce when he was six years old. He found it difficult to adjust to that event and he developed a strained relationship with his mother which coincided with him beginning to smoke cannabis at around the age of 14. 2. The Offender witnessed some reasonably traumatic events in the family home and eventually moved in with his maternal grandfather. Again, his relationship with his maternal grandfather appears to have been extremely fraught. 3. The Offender became homeless between the ages of 16 and 18 but resumed a relationship with his mother upon the death of his grandfather. 4. The Offender was suspended from high school. The only qualification he has received is a spray painting course whilst residing at a youth refuge. He had commenced work as a full-time labourer one week prior to the offending behaviour the subject of this sentence. As far as I can tell, this was his first full-time employment. He seems to feel he was treated unfairly by his employer which in some way is connected to why he offended. 5. As I have said, the Offender first started using cannabis as a young boy who progressed to ice at the age of 16 and began using heroin at the age of 20 and appears to have become an addict. 6. Since being in custody in relation to these matters the Offender has successfully and enthusiastically been participating in the Buvidal program and appears to have become drug-free. 7. As I have said, the Offender was placed in juvenile detention when he was 16 years of age. He reports that he was sexually assaulted during that time and has a claim on foot against the State arising out of that event.

[26]

Accumulation / Totality

The Crown has reminded me that concurrent sentences are generally not appropriate for multiple break and enter type offences even when part of a single spree of criminal behaviour: see Grover v R [2013] NSWCCA 149
On behalf of the Offender, it is accepted that there must be some accumulation to reflect the trauma to the victims and that each offence represents a separate and discrete act of criminality.
However, the Offender submits that there should be an aggregate sentence that does not have a significant degree of accumulation between each individual offence because such approach will lead to a crushing verdict, which will destroy any prospect of the Offender's rehabilitation and that it is significant that the offences occurred over a very short period of time, within hours of each other, and the each enter dwelling offence is directly linked to or a consequence of the steal motor vehicle offences, and that the aggravated enter dwelling offences in part comprehend and reflect the criminality of the remaining offences - Cahyadi v R [2007] NSWCCA 1 at [27]
This is not a mathematical exercise - Morrison v R [2022] NSWCCA 158 at [66] and is more an intuitive "synthesis" of all the relevant factors.
Doing the best I can, I think the starting point is that I accept the proposition that each events of enter dwelling and theft of motor vehicle (together with the other items) one really is considering a single act of criminality. Accordingly, I think as between each of the two events, I should accumulate the sentence wholly so as to reach a notional aggregate starting point of 2 years after deducting the 25% for the early guilty plea for each event.
As between the two events, as I have said, they do occur only hours apart and really do form part of a single act of criminality. However, they are separate and the second was to an extent planned, involved an accomplice and the trauma to the victims in having their home broken into and cars stolen would have been substantially exacerbated by finding out they had been broken into and robbed twice on the one night.
I have come to the conclusion that the appropriate aggregate sentence for all of the offences is 3 years. This includes the drug offence, which has not figured large in these reasons, but I feel is towards the low end of objective seriousness for those type of offences. On its own I would not have imposed a custodial sentence.

R v Foster

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Judgment (30 paragraphs)

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