R v Gibson

Factual Circumstances of the Offending

1. In relation to the factual circumstances of the trial matter, in summary only, in the early hours of the morning, at around 3.30am, he entered by way of opening an external door, which is of course a break, into what was described as the dialysis room, and from that room he stole a 30 pack of menthol cigarettes and an iPad. Then he entered another room and stole the laptop and external hard-drive. At some stage he shone a light into the face of AB but it is unclear whether he went into that room or did it from the door of the room. He also entered the spare bedroom. So in all, there was the spare bedroom, that he actually entered, the kitchen/dining area and the dialysis room. Whilst in the house, he also stole the house keys and car keys from the kitchen and a bottle of Chivas Regal from the kitchen/dining room area, which was in a glass cabinet. It will be immediately apparent the seriousness of this offence.
2. In relation to the other two offences, contrary to ss 113(1) and 111(2), the agreed statement of facts is as follows: Offence Contrary to Section 111(2) - Victim KF KF (the complainant) and PF (the second complainant) live at [address omitted] with their children and dogs. At about 10.30pm on Thursday 12 July 2018, the complainant secured her house before going to bed. At about 4.40am the next morning, the complainant and PF were awoken by their dog barking. They went to investigate the disturbance. The complainant went downstairs and saw that the rear screen door was being held open by a gas bottle. PF then went into the garage and noticed a number of tools missing and his ute with registration number ACM52L had been disturbed. The tools missing included a buffer and circular saw, a car stereo remote controls and two USBs. The bbq spit box had been moved from one location to another. Police attended the crime scene later the same date and conducted forensic testing of various items including the bbq spit box. On 24 July 2018, the police were notified that the fingerprints collected from the crime scene were identified as belonging to the accused. Offence Contrary to Section 113(1) - Victim CD CD (the complainant) lives at [address omitted]. At about 9.30pm on Friday 27 July 2018, the complainant secured her house and went to bed. During the evening, the accused attempted to enter the house through a window in the downstairs of the property but was unable to do so. The accused damaged the fly screen and the nearby rear door. The accused then moved to another side of the property and slid open a sliding window, removed a fly screen and gained entry to the garage. The accused then left the residence without stealing any property. At about 6.30am on 28 July 2018, the complainant woke up and went downstairs into the garage to get her golf clubs. When she was in the garage, she noticed an old suitcase that is usually placed on a table was on the floor. At about 9.00am, later that same day, the complainant's neighbour contacted her to inform her that her lower level side window had been removed. The police were called and conducted forensic testing on the crime scene. On 3 August 2018, the police were notified that the fingerprints located on the glass sliding windows belonged to that of the accused. Arrest The accused was in custody for other offences at the time that the forensic analyses results were obtained. Police were granted a s 25 order and the accused was given the opportunity to partake in an electronically recorded interview. The accused refused.

Plea of Guilty

1. In relation to the two offences in respect of which he pleaded guilty, he is entitled to a reduction of 25 percent for utilitarian considerations only. The Court is of the view there should be some greater weight in respect of personal deterrence and retribution. Mr Day submitted, "The offender submits that the Form 1 matter only marginally adds to the total criminality of his offending conduct for the [s 111(2)] offence". I accept this is so but, as I have said, rather than minimal further weight, I am of the view there should be just some further weight.

Objective Seriousness

1. In relation to objective seriousness, Mr Day submitted in respect of the offences contrary to ss 112(2) and 111(2), the offences fall below the middle range (upper end of the low range) and in relation to the s 113(1) offence, that matters falls towards the bottom of the low range. Mr Crown, on the other hand, said the s 112(2) offence was in the upper end of the mid-range and the s 111(2) offence in the mid-range. Having carefully considered the matter, I accept the Crown's submissions in respect of this.

Subjective Matters

1. The prisoner was 33 years old when he committed the three principal offences and the Form 1 offence. He is now aged 34 and turns 35 next February. He is an Aboriginal man originally from Moree, who has, as Mr Day said, an unfortunate history. He has unresolved issues to illicit drugs, since a young teenager and this, in large part, has contributed to his current circumstances.
2. The Court was assisted by detailed written submissions and also oral submissions from Mr Day and the psychological report. The Court has the benefit of a Sentencing Assessment Report. He has a criminal record and, in my view, this record does disentitle him to leniency. He was not on any form of conditional liberty at the time.
3. He was last released to parole on 18 November 2016. The Crown said that was in relation to a sentence of 18 months, with a non-parole period of nine months. The parole would not have finished until 18 August 2017 and, of course, August 2017 is about a year before the present offending. Despite this break, he has been incarcerated regularly, indeed, going back to 2003. He has also served a sentence. That sentence relates to offending during the present period and I do accept the offending was an episode. There were sequences 1 and 2, dishonestly obtain financial advantage by deception, offences committed on the same night as the offence on the indictment. Fixed term, three months, 25 August 2018 to 24 November 2018, served concurrently. Then H69310029, sequences 1 to 3, three dishonestly obtain financial advantage by deception, offences committed on the same night as the offence on the indictment. Fixed term, three months, 25 August 2018 to 24 November 2018, served concurrently. Then H68470836, sequences 1 to 6, six larceny offences committed on the same night as the offence on the indictment. Head sentence 18 months, 25 August 2018 to 24 February 2020, non-parole period of 10 months, 25 August 2018 to 24 June 2019, served concurrently. So the effective sentence is 18 with a 10. The 10 months has already expired, on 24 June 2019.
4. Totality is clearly a relevant principle in this sentencing exercise and I intend to commence the sentence from 25 February 2019, being six months into the sentence. He was arrested for the indictment offence on 25 August 2018 and has been in custody since that date.
5. I have taken into account the careful submissions of Mr Day in relation to the Bugmy principles. He has come from a very dysfunctional background, as is clear in the psychological report. What is contained therein, in my view, clearly shows the requirement for a greater period to be served on parole.
6. His home environment was characterised by parental alcohol abuse and domestic violence.
7. I do accept, in relation to the indictment offence, what the Crown says in regards to objective seriousness: "The offence falls within the upper range of objective seriousness." As I said, I accept that. The Crown notes the prisoner had disturbed AB while she was sleeping, by shining a torch in her face. He stole items from the dialysis room. The Crown submits, clearly knowing, at least at that point, that someone very ill resided there and nevertheless decided to keep stealing items. It is hard to know whether he really understood what that room was but in any event, even if he did not know, it was the fact that he stole items and that GB was very ill and AB also has mobility issues and moves with the assistance of a crutch. It is not suggested he knew that but it is the fact.
8. A stolen hard-drive contained irreplaceable photographs of AB's grandson, who is now deceased. The victims' house and car keys were stolen by the offender from the kitchen. This was a very concerning matter for the residents and AB was highly traumatised. I do not elevate this to a feature of aggravation but the effect of offending on victims is a matter found in 3A Crimes (Sentencing Procedure) Act 1999 and it is in this way that I take that into account. In relation to that, of course, he did not plead guilty, so there is no utilitarian value but I do accept that the trial was run in a particular way and all of the admissions made contributed to the facilitation of the course of justice.
9. Offences of this type, of breaking, entering and stealing or intending to steal, two of them knowing people are present and more particularly, the indictment offence, are very serious. This is clear from the maximum penalties. What is concerning, particularly about the offence on the indictment, was he was prepared to go into a house and then realised that people were sleeping but continued on, knowing when he went in that they were there but then clearly knowing someone was there. It is hard to know whether he shone the light prior to the stealing but at some stage it must have been clear to him, when he was taking these items, that someone was asleep in the house. It must be a most frightening experience to know that someone has been walking around your house when you are asleep.
10. It is very difficult to comment on remorse. The report does not indicate contrition and remorse as such but at least he is showing a greater understanding now of the consequences upon others of his offending behaviour.
11. The prospects for his rehabilitation depend so much on his ability to cease taking illegal drugs. They must be though guarded. I give some weight to his remorse but that is limited weight. Concerns about institutionalisation have to be considered in this case.
12. General deterrence and indeed, in this case, specific deterrence, are important principles of this sentencing exercise. Whether he will or will not re-offend is very hard to assess, and in my view, this is neutral. I do not think there is a likelihood, it is just neutral.
13. In relation to general principles of breaking and entering, as Mr Day conceded, victims in these matters have a right to feel safe and secure in their own homes and there is "something particularly repugnant about the forced entries of entering into a house and violating the safety of that place".
14. There was a deal of discussion about whether the aggravating factor contrary to s 21A(2)(eb) Crimes (Sentencing Procedure) Act was present. On balance, having considered the cases of R v Bennett [2014] NSWCCA 197 and then the subsequent case of Chung v R [2017] NSWCCA 48, I am of the view this aggravating feature was present. However, one must be very careful not to double count and it is the feature of aggravation here that he knew persons were therein. I have not double counted in respect of that feature. That is the only matter under s 21A(2) present in this case.

Sentence

1. I intend to impose an aggregate sentence. The offender is convicted. An aggregate sentence will be imposed in this case. I have given consideration to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act. I state the following indicative sentences for each offence. Count 1, four years, with a non-parole period of two years and three months. Sequence 3, three years and three months, reduced by 25 percent, is two years and five months. Sequence 4, attaching the offence on the Form, four years, reduced by 25 percent, is three years. I impose an aggregate sentence of four years and eight months, commencing on 25 February 2019 and expiring on 24 October 2023. The aggregate non-parole period is two years and six months, commencing on 25 February 2019 and expiring on 24 August 2021.
2. Special circumstances found.
3. The total effective sentence is five years and two months and the total effective custodial component is three years. The allowance for special circumstances is 10 months.
4. The standard non‑parole period, in relation to the indictment offence, remains a guidepost.

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