R v Hazelwood

District Court of NSW|2021-03-04

remarks on sentence

The offender is to be sentenced in respect of the following offences to which he has entered pleas of guilty: Sequence 2 - Break, enter and steal, an offence pursuant to s 112(1) of the Crimes Act 1900, which occurred on 26 May 2006 at Carnarvon Golf Club. Sequence 19 - Break, enter and steal, an offence pursuant to s 112(1) of the Crimes Act 1900, that occurred on 21 November 2014 at the Beverley Hills Hotel. Sequence 20 - Break, enter and steal, an offence pursuant to s 112(1) of the Crimes Act 1900, which occurred on 12 December 2014 at the Beverley Hills Hotel. Sequence 21 - Break, enter and steal, an offence pursuant to s 112(1) of the Crimes Act 1900, which occurred on 10 January 2015 at the Brewhouse Hotel, Marayong. Sequence 24 - Break, enter and steal, an offence pursuant to s 112(1) of the Crimes Act 1900, which occurred on 17 January 2015 at the Blacktown Inn. Sequence 25 - Break and enter with intent to commit serious indictable offence, an offence pursuant to s 113(1) of the Crimes Act 1900, which occurred on 27 March 2015 at the Vikings Sports Club, Dundas. Sequence 35 - Break and enter with intent to commit serious indictable offence, an offence pursuant to s 113(1) of the Crimes Act 1900, which occurred on 25 April 2015 at the Collector Hotel, Parramatta. The offences in Sequences 2, 19, 20, 21, and 24, pursuant to s 112(1) of the Crimes Act 1900, carry a maximum penalty of 14 years imprisonment. The offences in Sequences 25 and 35, pursuant to s 113(1) of the Crimes Act 1900, carry a maximum penalty of 10 years imprisonment. There is no Standard Non-Parole Period applicable to any of the offences.

The sentence hearing

The sentence hearing took place on 4 March 2021. The Crown sentence summary became Ex A. It included a Statement of Agreed Facts which may be summarised as follows.

Sequence 1 - break and enter with intent to steal - s 113(1) of the Crimes Act 1900 - Parramatta City Pre-school and Childcare Centre - Form 1C attached to Sequence 2

Between 6pm on 27 January 2006 and 7.20am on 30 January 2006, the offender gained entry to the childcare centre by removing a glass pane and timber beading from a window. The offender then entered the pre-school building and forced open timber school fee boxes. He entered the internal office and rummaged through filing cabinets, drawers and cupboards. The offender then gained entry into the childcare building by forcing a lock on the ground floor front window. He then forced open the school fee boxes, and again rummaged through drawers and filing cabinets. No money was kept in either building and no property was stolen. The cost of repair to the windows and school fee boxes was approximately $200.

Sequence 2 - break enter and steal - s 112(1)(a) of the Crimes Act 1900 - Carnarvon Golf Club

At about 2.21am on 26 May 2006, the offender forced entry through the back window of the golf club. Inside he opened eight poker machines and removed $754 in $1 coins. Exhibits seized from the crime scene included a backpack strap and a sock. DNA profile obtained from the sock matched the DNA profile of the offender.

Sequence 4 - break, enter and steal - s 112(1)(a) of the Crimes Act 1900 - Triglav Mounties Club - Form 1A attached to Sequence 19

At about 3.31am on 6 September 2014, the offender forced entry through a rear glass fire door at the Triglav Mounties Club at St Johns Park. The offender was depicted on CCTV walking in a crouching position towards the gaming area. He used a large screwdriver to force open three poker machines, from which he removed the cash boxes, which he placed on the ground. He then used the screwdriver to open each cash box. The offender left via the back door at about 3.35am. He stole a total of $2,625.00 from the three poker machines.

Sequence 14 - break, enter and steal - s 112(1)(a) of the Crimes Act 1900 - Brewhouse Hotel, Marayong - Form 1B attached to Sequence 21

At about 4.20am on 6 November 2014, the offender forced entry into the Brewhouse Hotel, Marayong. He was captured on CCTV using a long screwdriver to force open the back door of the hotel, before entering and crawling along the floor on his hands and knees. He was then seen moving through the club using a torch. He forced open one poker machine, which did not contain any money. He then forced open a cigarette vending machine and stole approximately $5,000 cash.

Sequence 18 - break, enter and steal - s 112(1)(a) of the Crimes Act 1900 - Blacktown Inn - Form 1B attached to Sequence 21

At about 4.56am on 17 November 2014, the offender forced entry into Blacktown Inn. He was seen on CCTV approaching the gaming room entrance doors, before he forced open the door with a long screwdriver. He then entered the hotel holding a small silver torch in his mouth. In the gaming area of the hotel he forced open the cash redemption machine using the screwdriver to force open the top access drawer. He removed a cash box from the machine before fleeing with it under his arm. The cash box contained $2,156.

Sequence 19 - break, enter and steal - s 112(1)(a) of the Crimes Act 1900 - Beverley Hills Hotel

At about 4.22am on 21 November 2014, the offender forced entry into the Beverley Hills Hotel through a side door. Inside the gaming area of the hotel, the offender forced open three poker machines and removed a total of $12,485. The cost of repairs to the poker machines and side door totalled $1,210.

Sequence 20 - break, enter and steal - s 112(1)(a) of the Crimes Act 1900 - Beverley Hills Hotel

At about 4.40am on 12 December 2014, the offender broke into the Beverley Hills Hotel again. He entered by smashing a window within a side door. He was seen on CCTV carrying a yellow-handled screwdriver and a small jemmy bar. In the gaming area of the hotel he forced open three poker machines and removed the cash therefrom. He then proceeded to open a further two poker machines in the same manner, leaving the hotel at 4.42am. The amount stolen was $10,825. The repairs to the poker machines totalled $1,925.

Sequence 21 - break, enter and steal - s 112(1)(a) of the Crimes Act 1900 - Brewhouse Hotel, Marayong

At about 4.15am on 10 January 2015, the offender forced entry into the Brewhouse Hotel, Marayong again. He was seen on CCTV holding a tool similar to a screwdriver or jemmy bar. Inside the hotel he forced open a poker machine, removed the cash box and left it next to the machine. He then forced open a cigarette vending machine. Approximately $4,500 worth of damage or losses were incurred to the cigarette and poker machines.

Sequence 22 - break, enter and steal - s 112(1)(a) of the Crimes Act 1900 - Vikings Sports Club, Dundas - Form 1B attached to Sequence 21

At about 5.05am on 12 January 2015, the offender forced entry into the Vikings Sports Club, Dundas Valley. He was seen on CCTV forcing entry through a side door of the club using a long-handled screwdriver and jemmy bar. In the gaming area of the club, he forced open the door of a poker machine, removing the cash box to that machine and three others. He stole a total of $1,995. The repairs to poker machines damaged during the commission of this offence cost $528.00.

Sequence 24 - break, enter and steal - s 112(1)(a) of the Crimes Act 1900 - Blacktown Inn

At 5.05am on 17 January 2015, the offender forced entry into the Blacktown Inn. He was seen on CCTV levering open the front access door of a poker machine and removing the cash box. He then forced open the second poker machine and a cash redemption machine. The offender stole approximately $6,350 and the cost to repair the poker machines amounted to $2,007.50.

Sequence 25 - break and enter with intent to steal and commit serious indictable offence - s 113(1)(a) of the Crimes Act 1900 - Vikings Sports Club, Dundas

At about 4.47am on 27 March 2015, the offender forced entry into the Vikings Sports Club, Dundas, via a side fire exit door. In the gaming area of the club he forced open a poker machine using a large screwdriver, however, the club's poker machines had been emptied prior to closing, and no money was stolen during this offence.

Sequence 35 - break and enter with intent to steal and commit serious indictable offence - s 113(1) of the Crimes Act 1900 - Collector Hotel, Parramatta

At about 4.14am on 25 April 2015, the offender forced entry into the Collector Hotel through the patio entry doors at the front of the hotel. He was seen on CCTV walking into the gaming area of the hotel where he forced open the door of a poker machine. He removed the cash box, but did not remove any money from it. He then walked through the hotel towards a free-standing ATM and attempted to lever open the bottom drawer without success. He left the hotel at 4.15am.

Sequence 40 - break, enter and steal - s 112(1)(a) of the Crimes Act 1900 - Beverley Hills Hotel - Form 1A attached to Sequence 19

At about 4.25am on 11 November 2016, the offender forced entry into the Beverley Hills Hotel. He was seen on CCTV conducting surveillance at the location before forcing entry by removing the window pane from the timber door at the back of the hotel. In the gaming area he used a long screwdriver to force open the front access door to a poker machine, gaining access to the cash box. He opened a total of four poker machines, stealing $12,755. The repairs to the four poker machines amounted to $8,990.
An ERISP was conducted with the accused on 31 January 2018 at Arthur Gorrie Correctional Centre in Queensland by New South Wales police, however, the offender exercised his right to silence.
Exhibit A also included the offender's criminal antecedents. The offender was born on 30 August 1963 in New Zealand and he had a number of dishonesty offences in New Zealand dating from 1983. On 23 August 1983 he had been sentenced to imprisonment for nine months for burglary and on 11 December 1984 had again been sentenced to imprisonment for nine months on each of two burglary offences. In 1987, he was sentenced in the North Sydney Local Court for an offence of break, enter and steal, to a good behaviour bond for three years. In 1989, he had been convicted of a goods in custody offence, and in 2007, he was convicted of an offence of found with intent to commit indictable offence, for which he was sentenced by way of a bond to be of good behaviour pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 ("CSPA").
In Queensland, the offender had been sentenced on 12 November 2019 in respect of 65 similar offences which had occurred between 2008 and 2017. Exhibit A included a schedule of facts relating to each of those offences. It is unnecessary to rehearse the detail of each offence for the purpose of sentencing here, however, it is clear that they involved a similar modus operandi to the index offences. The remarks on sentence of the sentencing judge were not available, and should have been, given that the index offending occurred within the same period during 2014 and 2015 (except for Sequences 1 and 2, which occurred in 2006).
The Crown also provided statistics published by the Judicial Commission in respect of sentencing for the offences, together with a number of comparable cases.

The offender's evidence

The offender relied on a report from Ms J Howell, psychologist, dated 18 February 2021 (Ex 1). Under the heading, "Family and developmental history", the author recorded that the offender was the third of five sons born in New Zealand. He came to Australia in 1986 and lived in Sydney for five years before returning to New Zealand in 1991. He subsequently returned to Australia in 2004. He had consistently worked in the construction industry since that time. The offender met his wife when they were around 22 years of age and they subsequently married in 2012. They have two sons and one grandchild.
Under the heading "Psycho-social history", the offender disclosed that he had been physically abused by his grandfather from age five. He had otherwise experienced good health, but was suffering feelings of anxiety and depression due to his custody on remand.
The author recorded a moderate Alcohol Use Disorder, together with a history of abuse of illicit drugs. He commenced using marijuana at age 13 and was introduced to LSD at around 18 years. He subsequently abused methylamphetamines and stated that up to the age of 45 he was an occasional user of illicit substances. He had been abstinent from prohibited drugs for the past three years.
Ms Howell took a history that as an adult, the offender had developed a gambling problem, initially with poker machines. From around 2000, that escalated to betting on horse races. The loss of money would then lead him to attempt to win back money through poker machines. The author opined that the offender clearly understands and accepts that he has a gambling addiction. He has never been able to access appropriate support or help in relation to that addiction.
The author noted that the offender fully accepted that his behaviour was "wrong, inappropriate and harmed his family". The offender indicated that it has been difficult for him to come to terms with the harm that he had caused his family by his criminal conduct. He was extremely remorseful for the hardship experienced by his wife whilst he had been in custody and appeared genuinely concerned for her emotional and physical well-being if he is deported to New Zealand.
The author noted that the offender would have met the diagnostic criteria for a substance related disorder, together with a gambling disorder. She stated: "It is my view there is a nexus between the offender's 'chronic history of alcohol and illicit substance use; his gambling disorder and intermittent mental health conditions and the commission of the offences'."
The offender was noted to be willing to attend alcohol and drug treatment programs, as well as attend Gambler's Anonymous.
Exhibit 2 was a letter addressed to the presiding judge dated 21 December 2020 from the offender's wife. She recorded that the offender had a good work ethic, had always been a loving and caring husband and father, had a strong bond with a number of close friends, and had expressed remorse for what has happened, and was devastated at the emotional and financial effect it has placed on his family. Mrs Hazelwood expressed that the offender was looking forward to living a productive future and has the support of his family and friends. They have daily contact by telephone and video link visits every second weekend, because she works every other weekend. The fact that he is likely to be deported at the conclusion of any sentence will have a major impact on her life and cause her a great amount of stress.

The offender's oral evidence

The offender gave evidence that he had told the truth to Ms Howell and he accepted the accuracy of her report.
The offender gave evidence that he had worked for the Gold Coast City Council as a city cleaner doing nightshift, but had also worked on construction sites and as an fly-in-fly-out worker on Curtis Island and at Roma in Queensland. He had also worked as a landscaper and as a truck driver. The offender had never had a lengthy period with no work, notwithstanding occasional periods between jobs.
The offender gave evidence that, as a truck driver, he worked in the metropolitan area of Sydney doing shifts of 10 hours, and at times up to 12 hours. He gave evidence that he commenced taking methylamphetamines on occasions to stay awake because of his shift work. It would depend on his sleep pattern, that is, there were times when he did not get much sleep, so he would then use methylamphetamines.
The offender gave evidence that he and his wife, who worked as a retail assistant, lived in a three bedroom home in the suburbs. When asked why he committed the offences, he stated it was due to his gambling habit. He had started as a young adult gambling on poker machines, however, this escalated, and he then bet on horses and sports. He would often gamble the whole of his pay cheque away. His wife knew about his gambling habit, and in fact had left him around 2000 due to a few issues including his gambling. When they got back together, he hid his gambling from his wife.
The offender said he was extremely remorseful for his offending and the impact it had on all of the victims. When asked what he understood that impact to be, he said it was the "inconvenience and frustration with what had happened".
Whilst in custody in Queensland from 29 August 2017, he had worked in various correctional facilities, in the kitchen, in the laundry, as a gardener and doing concreting work as a labourer. In Queensland his wife had visited him every second weekend, however, he last saw her in March 2020.
He had applied for a number of courses in custody in Queensland, but had not been successful. He had not been offered any courses whilst in custody in New South Wales. He had spent his time in maximum security in Queensland because of the extradition warrant and his visa cancellation. He was kept in maximum security on remand in New South Wales.
The offender gave evidence that upon release he expects to be taken by the Australian Border Force to a detention centre, to await a ministerial decision to deport him to New Zealand. His plan was to find work and reconnect with his family, to focus on being a better person for himself and for society. He wished to avail himself of Gambling Anonymous and mental health services. He said he would look for truck driving work.
In cross-examination, the offender was asked about the number of times he had applied to do courses whilst in custody in Queensland. He had applied for two particular courses, namely, drugs and gambling, on about four occasions, but was unsuccessful.
His AVL visits with his wife each fortnight were for 20 minutes. In addition, they communicated by phone.
The offender was questioned about where the money went that was stolen. He gave evidence that it was to fund his gambling habit and he pretty much definitely gambled it away. He was asked about the 65 break and enter offences for which he was convicted in Queensland, that occurred between 2008 and 2017. Twenty-four of those offences occurred in 2010, but he was not sure what was happening in his life at that time. He was earning on average between $1,200 and $1,300 per week net, but the amount he spent on gambling varied. He did take out bank loans of up to $5,000 on a couple of occasions.
The offender gave evidence that there was no pattern to his gambling. He would gamble either daily or on weekends and on occasions expend his whole pay packet on poker machines.
It was put to the offender that he had stolen a total of $59,445.00, and caused $14,860.00 damage. When he said that he gambled the money away, it was put to him that he was lying about that, which he denied. He had no plans to reimburse the commercial premises for their losses and damage.

The Crown submissions

The Crown relied on a written outline of submissions, noting that the offender committed 13 offences, two of which occurred in 2006, five of which occurred between September 2014 and December 2014, five of which occurred between January 2015 and April 2015, and one offence that occurred on 11 November 2016. Six of the offences were to be taken into account on three Forms 1, as outlined above.
The offender was born in August 1963 and was aged between 43 and 52 years at the time of the offences. He has been in custody since being extradited from Queensland on 8 April 2020.
The Crown referred to the principle of totality which must be applied to determine the degree of accumulation to be imposed between each offence. The Crown submitted the only appropriate sentence is a full-time custodial sentence and it was open to the court to impose an aggregate sentence.
In assessing the objective seriousness of the offending, the Crown referred to the guideline judgment in R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435 to submit that the following factors identified by Grove J were applicable here, namely: "(i) The offending was unsophisticated; (ii) The nature of the serious indictable offence committed (i.e. larceny); (iii) The offending was premeditated with some degree of planning in selecting his targets; (iv) The loss or damage could be characterised as substantial; (v) The offender has a prior record, particularly for like offences; (vi) There are a series of repeat incursions into the same premises: (a) The Beverley Hills Hotel - Sequences 19, 20 and 40 (b) Brewhouse Hotel - Sequences 14 and 21 (c) Blacktown Inn - Sequences 18 and 24 (d) Vikings Sports Club - Sequences 22 and 25. (vii) The offender used a disguise or covered his face/hands when he committed the offences."
The Crown acknowledged that the serious indictable offence committed contrary to s 112 here was one of the least most serious, namely, larceny. However, the court would still have regard to the fact that the offence of break, enter and steal has long been regarded as a serious crime, particularly where a series of offences are committed, relying on R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130. Here, all seven offences were objectively serious, however, Sequences 19, 21 and 2 required a more severe penalty, given the number of Form 1 offences attached to them.
The Crown submitted that of the 13 offences, 10 were committed over a seven month period, representing a not insignificant crime wave carried out by the offender against commercial properties throughout Sydney. In total, $59,445.00 was stolen and $14,860.50 in damages was caused by the offender's criminal conduct. The Crown submitted that each of the offences fell within the lower part of the mid-range for offences of this type.
The Crown acknowledged an early plea of guilty warranted a discount in sentence of 25%. The offender's criminal record disentitled him to leniency.
The Crown submitted that the court would need to make an assessment as to whether the offender is remorseful. It should also assess the offender's prospects of rehabilitation as guarded, given his criminal record, the time spent in which the offences were committed, and his risk or recidivism.
The Crown submitted that general deterrence and protection of the community loomed large in this sentencing exercise.
In considering the commencement date of the sentence, the Crown submitted the court would take into account that the offender was serving a term of imprisonment for like offences in Queensland, and is currently on parole for those offences. He was extradited to New South Wales at the conclusion of the non-parole period. A number of the offences in Queensland were committed in 2014 and 2015, the same two years as 10 of the offences now before the court. The Crown submitted that any sentence should commence on the date of his extradition to New South Wales, namely 8 April 2020.
The Crown further submitted that Form 1 matters may lead to an increased penalty for the principal offences because greater weight may be placed upon retribution and specific deterrence. The Form 1 offences demonstrated a heightened need for specific deterrence here. Each of the Form 1 offences were in the lower end of the mid-range of objective seriousness and the court would take into account that the objective circumstances of each Form 1 events reflect grave criminality.
The Crown acknowledged the limitations to be based on the statistics produced by the Judicial Commission. Further, the comparative cases were designed to isolate the unifying factors that had previously been found significant when imposing sentences for like offences.
In his oral submissions, the Crown conceded the court had a discretion to backdate the sentence to beyond the end of the offender's non-parole period in Queensland. In respect of the delay in sentence here, the Crown did not cavil with a submission made on behalf of the offender that the principle in R v Todd (1982) 2 NSWLR 517 applied. The Crown further conceded a finding of special circumstances was open here, given that there would be substantial accumulation in sentence.
In respect of the oral evidence of the offender, the Crown submitted that the court would have some doubt as to the reliability of his evidence because of his vagueness relating to the detail in his evidence.
The Crown characterised the offender's criminality as being a significant crime spree, with 10 offences occurring between September 2014 and April 2015. The objective seriousness of the offending was elevated by repeated offences at the same venues, as outlined in the Crown's written submissions.
The Crown characterised the most serious offending as that in Sequence 19, where the sum of $12,485.00 was stolen. Attached to that offence on a Form 1 were Sequences 40 ($12,755.00 stolen), and Sequence 4 ($2,625.00 stolen). The total funds stolen in the three offences was $27,865.00.
The next most serious offence was Sequence 20 where the sum of $10,825.00 was stolen from the Beverley Hills Hotel.
The Crown adopted the offender's submission that in respect of offences where low level amounts were stolen, the offending was not significant. This applied to Sequences 25 and 35 where nothing was taken.
In respect of the comparable cases provided by the Crown, the Court of Criminal Appeal decisions in R v Merrin [2007] NSWCCA 255, and Watts v R [2007] NSWCCA 153 were most relevant to the circumstances here.
In relation to the offender's prospects of rehabilitation, the Crown relied on the offender's evidence that he had undertaken no courses whilst in custody in Queensland. The Queensland offences occurred between 2008 and 2017. There were a total of 64 offences with 24 of those occurring in 2010. Eight occurred in 2014 and 2015, whereas 10 occurred in New South Wales during the same period.
The Crown accepted that, with respect to the New South Wales offences, the offender was in a state of uncertainty with these offences "hanging over his head", during his time in custody in Queensland.
The Crown conceded a three month delay when the offender was waiting extradition, and submitted that the earliest possible date for commencement of his sentence here was 28 December 2019. If the sentence commenced on that date, the offender would have served a period of 2 years and 4 months to date.
Finally, the Crown submitted that any nexus between the offender's chronic history of alcohol and illicit substance use, his gambling disorder and intermittent mental health conditions, as advocated by Ms Howell in Ex 1, was not made out.

The offender's submissions

The offender relied on a detailed written outline of submissions. He conceded from the outset that the only appropriate sentence is one of full-time imprisonment, however, he submitted that there should be a finding of special circumstances and any sentence should commence on 28 February 2019.
The offender made the following submissions as to the objective seriousness of the offending. In respect of Sequence 1 (Form 1 offence attached to Sequence 2), it was submitted that this incident at Parramatta City Preschool did not result in any actual theft and involved some minor damage. It was submitted that the offence fell towards the lower-end of the range of objective seriousness for an offence pursuant to s 113 of the Crimes Act.
Sequence 2 was the offence at Carnarvon Golf Club on 26 May 2006. It occurred on commercial premises, and was the first offence involving poker machines. Eight machines were broken into and the offender stole $754 in coins. It was submitted that no conclusion could be drawn about whether much planning was involved, or the level of damage to either the club or poker machines. It was submitted the offence fell towards the lower end of the range of objective seriousness for an offence pursuant to s 112(1)(a) of the Crimes Act.
Sequence 4 was a Form 1 offence attached to Sequence 19, which occurred on 6 September 2014 at Triglav Mounties Club. The period of entry onto the premises was short, being four minutes, during which three poker machines were opened and the offender stole $2,625.00. There was no evidence as to the extent of the damage done to the premises and it was submitted that the offending fell just below the middle of the range of objective seriousness for an offence pursuant to s 112(1)(a).
Sequence 14 was a Form 1 offence attached to Sequence 21. It occurred at the Brewhouse Hotel on 6 November 2014. A poker machine was forced open, but contained no money. The cigarette machine was broken into and the offender stole $5,000.00. It was submitted that the offence fell just below the middle of the range of objective seriousness for an offence pursuant to s 112(1)(a).
Sequence 18 was a Form 1 offence attached to Sequence 21. It occurred on 17 November 2014 at the Blacktown Inn. A cash redemption machine was forced open and the offender stole $2,156.00. He was in the premises for two minutes. It was submitted that the offence fell just below the middle of the mid‑range of objective seriousness for an offence pursuant to s 112(1)(a).
Sequence 19 occurred at the Beverley Hills Hotel on 21 November 2014. Form 1A was attached to this offence. This was the first of three occasions on which this venue was targeted. It was submitted that care must be taken in considering whether a venue has been targeted more than once as part of the sentencing exercise, that is, it should not be double counted.
It was acknowledged that it would have created additional burden to the venue operator that they were repeatedly targeted. However, they are separate offences for each of the entries, and there will be a measure of accumulation amongst those sentences. It was submitted that to increase the objective seriousness of each offence, and also take the repeated targeting of this venue into account in increasing the level of accumulation, would be to use the same factor twice. On this occasion, three poker machines were forced open and the offender stole $12,485.00. The offending also entailed a degree of actual damage to the poker machines and the door through which entry was forced. It was submitted the offending fell at about the middle of the range of objective seriousness for an offence pursuant to s 112(1)(a).
Sequence 20 was the second occasion on which the Beverley Hills Hotel was targeted. The offence occurred on 12 December 2014, exactly three weeks after the earlier offence. Entry was gained by smashing a window, and a total of five poker machines were broken into. The offender was in the premises for two minutes and stole $10,825.00. It was submitted the offence fell at about the middle of the range of objective seriousness for an offence pursuant to s 112(1)(a).
Sequence 21 occurred at the Brewhouse Hotel on 10 January 2015. Form 1B is attached to this offence. One poker machine and a cigarette vending machine were broken into and $4,500.00 was stolen from the poker machine, with an unspecified amount stolen from the cigarette vending machine. It was submitted that the offence fell just below the middle of the range of objective seriousness for an offence pursuant to s 112(1)(a).
Sequence 22 was a Form 1 offence attached to Sequence 21. It occurred on 12 January 2015 at the Vikings Sports Club and was the first of two occasions on which this venue was targeted. Four poker machines were broken into and the offender stole $1,995.00. Some damage was occasioned to the poker machines, although whether any damage was occasioned by forcing a door to gain entry was unspecified. It was submitted that this offence fell just below the middle of the range of objective seriousness for an offence pursuant to s 112(1)(a).
Sequence 24 occurred on 17 January 2015 at the Blacktown Inn. Two poker machines and a cash redemption machine were broken into and the offender stole $6,350.00. Damage was occasioned to the poker machines in the process. It was submitted that this offence was also just below the middle of the range of objective seriousness for an offence pursuant to s 112(1)(a).
Sequence 25 occurred at the Vikings Sports Club on 27 March 2015. This was the second occasion on which this venue was targeted. There was no actual theft, and it was submitted that as the offender was on the premises for two minutes, the offending fell just below the middle of the range of objective seriousness for an offence pursuant to s 113 of the Crimes Act.
Sequence 35 occurred on 25 April 2015 at the Collector Hotel. This offence did not involve any actual larceny. The offender was on the premises for one minute, during which, one poker machine was forced open, although no cash was removed from it. The offender also tried to open an ATM without success. It was submitted that this offence falls just below the middle of the range of objective seriousness for an offence pursuant to s 113 of the Crimes Act.
Sequence 40 was a Form 1 offence attached to Sequence 19. It occurred on 11 November 2016 at the Beverley Hills Hotel. This was the third time this venue was targeted. Four poker machines were broken into and the offender stole $12,755.00. Damage was occasioned to the poker machines and it was submitted that this offence falls at or about the middle of the range of objective seriousness.
Counsel for the offender outlined the offender's personal history as reported by Ms Howell in Ex 1. She identified that during the period of the offending, the offender had issues with a moderate Alcohol Use Disorder, a Substance Use Disorder, Gambling Disorder, and "intermittent mental health conditions".
The offender had experienced a measure of physical abuse at the age of five. Those assaults were kept secret, suggesting they may have had an impact on a young and developing mind.
It was submitted there was no evidence that the offending was in order to fund a lavish lifestyle. Rather, it was submitted the preferable inference was that the offender committed the offences in order to chase gambling losses. Other than the offending, the offender had led a productive life during the period of offending, according to the letter from his wife.
It was conceded that the offender's criminal history disentitled him from leniency. It was further submitted that the offender had expressed remorse as reported by Ms Howell, and in the letter from his wife.
With respect to the offender's prospects of rehabilitation, it was submitted that the offender had made progress in relation to his drug abuse and that he had not used prohibited drugs whilst in custody. The fact that the offending spanned a significant period of time was a relevant factor in considering the risk of re-offending and the need for specific deterrence. It was submitted that it was notable here that this offender had been caught for an entire "career" of offending, which was described as a-typical for offences of this kind.
It was submitted that the offender's risk of re-offending was intimately tied to his willingness and ability to remain free of both drugs and gambling. He required treatment and assistance in relation to both issues, but was willing to address those issues.
It was submitted that the offender's prospects of rehabilitation should be regarded as reasonable, and the likelihood of him re-offending as being guarded.
The offender was entitled to a discount of 25% in respect of his early plea of guilty. It was submitted that an aggregate sentence was appropriate, but there must be a measure of accumulation, both amongst the various New South Wales offences and to some degree, upon the Queensland sentence. The principle of totality loomed large in the sentencing process.
On the question of delay in sentencing, counsel for the offender relied on Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, which applied the principle in R v Todd, supra. It was submitted that the question was essentially, if the offender had been sentenced for both Queensland and New South Wales offences together, what would have been the effective sentence? It was appropriate to extend a "considerable measure of understanding and flexibility of approach" in those circumstances.
It was submitted that the offender had been in continuous custody since 29 August 2017, and of that period, the time since 8 April 2020 is unambiguously referrable to the New South Wales sentence matters, he being on parole for the Queensland offending. It was submitted that he would have been likely to have been released on parole, absent the New South Wales offences, on 28 December 2019.
It was submitted that in order to avoid a crushing sentence, accumulating the first 18 months of the Queensland sentence would reflect the appropriate balance, and hence the offender submitted that the appropriate commencement date is 28 February 2019.
With respect to a finding of special circumstances, the offender highlighted his separation from family and the fact that he will, upon release from gaol, be taken into immigration custody. There will be inevitable accumulation of the New South Wales sentence upon the Queensland sentence, in which case a finding of special circumstances should be made.
In his oral submissions, counsel for the accused noted that the offender's evidence highlighted that he was a poor historian, however, the court should not make much of his inability to recall details of the various offences. His evidence was not a disingenuous attempt to hide from the truth.
It was submitted that the offender committed the offences to feed his gambling addiction and to deal with his losses. His Gambling Disorder provided a context and explanation for the offending. It was a useful hook for the court to identify why the offending took place, and was a clear target for rehabilitation.
The offender's likelihood of re-offending was tied to his rehabilitation for long‑standing gambling and drug addictions. Further, the offender had explicitly expressed remorse and contrition for his offending.
Counsel rehearsed his submissions in respect of the commencement date of 28 February 2019 as a matter of the court's discretion. Consistent with that discretion, the latest date for commencement should be 28 December 2019, that is when he became eligible for parole.
In relation to the Crown's submissions, counsel for the offender referred to the issue of the matters on the Forms 1 being taken into account, relying on RO v R [2019] NSWCCA 183 at [53].
In respect to the comparative cases referred to by the Crown, there were clear distinctions to be drawn in respect of both cases, and they were not apt to assist here, which was described as an unusual case.
Counsel rehearsed his submissions in respect of the application of the principle of totality. A crushing sentence should not be imposed on a man who had been in custody for three and half years. It was submitted there were reasons to be optimistic about his return to the community in a productive capacity, provided he could deal with his gambling and drug problems.

Determination

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."
In R v Ponfield, supra, the Court of Criminal Appeal noted a number of factors which would enhance the seriousness of an offence pursuant to s 112(1) of the Crimes Act. Further, if more than one such factor is present, there is a cumulative effect upon the seriousness of the offending. The factors that are present here, as advocated by the Crown in [49] above, are as follows: "(i) The offending was unsophisticated; (ii) The nature of the serious indictable offence committed (i.e. larceny); (iii) The offending was premeditated with some degree of planning in selecting his targets; (iv) The loss or damage could be characterised as substantial; (v) The offender has a prior record, particularly for like offences; (vi) There are a series of repeat incursions into the same premises: (a) The Beverley Hills Hotel - Sequences 19, 20 and 40 (b) Brewhouse Hotel - Sequences 14 and 21 (c) Blacktown Inn - Sequences 18 and 24 (d) Vikings Sports Club - Sequences 22 and 25. (vii) The offender used a disguise or covered his face/hands when he committed the offences."
I find the objective seriousness of the offending in respect to the individual counts as follows.

Sequence 2 - Section 112(1)(a) of the Crimes Act - Carnarvon Golf Club

This offence involved forced entry in the early hours of the morning into commercial premises where the accused opened eight poker machines and removed coins to the value of $754.00. The objective seriousness of the offending fell in the lower range of objective seriousness for an offence pursuant to s 112(1), and towards the middle of that low range.

Sequence 19 - Section 112(1)(a) of the Crimes Act - Beverley Hills Hotel

This offence involved a forced entry into hotel premises in the early hours of the morning, when the offender forced open three poker machines and stole $12,485.00. The damage to repair the poker machines and the door through which entry was gained, totalled $1,210.00. The objective seriousness of the offending was in the mid-range of objective seriousness for an offence pursuant to s 112(1) of the Crimes Act.

Sequence 20 - Section 112(1)(a) of the Crimes Act - Beverly Hills Hotel

This offence occurred some three weeks following Sequence 19 in the same premises. The offender broke in by smashing a window within a side door, and gained entry into the gaming area, forcing open three poker machines using a screwdriver and jemmy bar. He was in the hotel premises for a few minutes only, however, he stole $10,825.00 and repairs to poker machines was required in the sum of $1,925.00. The offending fell within the mid‑range of objective seriousness for an offence pursuant to s 112(1) of the Crimes Act, as it was a repeat incursion into the same premises.

Sequence 21 - S 112(1)(a) - Brewhouse Hotel, Marayong

This offence occurred in the early hours of the morning of 10 January 2015, where the offender gained entry to hotel premises by breaking wooden slats on venting near the back doors. Inside, he forced open a poker machine and a cigarette vending machine. Approximately $4,500.00 of damage and losses was incurred. The objective seriousness of the offending here fell in the lower range of objective seriousness for an offence pursuant to s 112(1), but in the upper part of that range.

Sequence 24 - S 112(1)(a) of the Crimes Act - Blacktown Inn

This offence occurred in the early hours of the morning of 17 January 2015. The offender forced entry into hotel premises. He broke open two poker machines and a cash redemption machine. He was on the premises for only a few minutes, but stole $6,350.00 and the cost of repairs to the poker machines amounted to $2,007.50. The objective seriousness of the offending was just below the mid-range for an offence pursuant to s 112(1) of the Crimes Act.

Sequence 25 - S 113(1) of the Crimes Act - Vikings Sports Club, Dundas

In the early hours of the morning of 27 March 2015, the offender forced entry into a sports club and gained entry into the gaming area of that club. He forced open a poker machine, however, no money was stolen, as the club's poker machines had been emptied prior to closing. The offender was on the premises for a few minutes and was seen to check the remaining poker machines before he left. The offending fell within the low-range of objective seriousness for an offence pursuant to s 113(1) of the Crimes Act.

Sequence 35 - S 113(1) of the Crimes Act - Collector Hotel, Parramatta

In the early hours of the morning of 25 April 2015, the offender forced entry into hotel premises. He forced open a poker machine and removed the cash box and then attempted to lever open the bottom drawer of a free-standing ATM without success. He was on the hotel premises for a few minutes only and nothing was stolen. The objective seriousness of the offending fell in the low-range of objective seriousness for an offence pursuant to s 113(1) of the Crimes Act.

Form 1A attached to Sequence 19 - Sequence 4 - S 112(1)(a) of the Crimes Act - Triglav Mounties Club

The offender forced entry in the early hours of the morning to the commercial premises and forced open three poker machines. He stole a total of $2,625.00 from the club and was on the premises for approximately four minutes. The objective seriousness of the offending fell in the low-range for an offence pursuant to s 112(1), but in the upper part of that low-range.

Sequence 40 - S 112(1)(a) of the Crimes Act - Beverley Hills Hotel

In the early hours of 11 November 2016, after being observed for a period of some 10 minutes outside the hotel premises, the offender forced entry for the third time into those premises by removing a window pane from a timber door. He forced open four poker machines and stole a total of $12,755.00. The cost of repairs to the four poker machines amounted to $8,990.00. This offending fell within the mid-range of objective seriousness for an offence pursuant to s 112(1) of the Crimes Act.

Form 1B attached to Sequence 21 - S 112(1) of the Crimes Act - Brewhouse Hotel, Marayong

In the early hours of 6 November 2014, the offender forced entry into hotel premises. He forced open one of the poker machines, which did not contain any money. He then forced open a cigarette vending machine and stole approximately $5,000 in cash. This constituted serious offending, the objective seriousness of which fell just below the mid-range for an offence pursuant to 112(1) of the Crimes Act.

Sequence 18 - S 112(1)(a) of the Crimes Act - Blacktown Inn

In the early hours of the morning of 17 November 2014, the offender forced entry into hotel premises and forced open a cash redemption machine. He was on the premises for a few minutes only and stole $2,156.00. The objective seriousness of the offending fell in the low-range for an offence pursuant to s 112(1), but in the upper part of that low-range.

Sequence 22 - S 112(1) of the Crimes Act - Vikings Sports Club

In the early hours of the morning of 12 January 2015, the offender forced entry into the club, forcing open four poker machines and stealing a total of $1,995.00. The offender left the club within a few minutes and repairs to the poker machines totalled $528.00. The objective seriousness of the offending fell in the low-range for an offence pursuant to s 112(1), and in the middle of that low-range.

Form 1C attached to Sequence 2 - Sequence 1 - S 113(1) of the Crimes Act - Parramatta pre-school and childcare centre

This offence occurred between 6pm on 27 January 2006 and 7.20am on 30 January 2006. The offender gained entry to the building by removing a glass pane and timber beading from a window. Inside the premises, the offender rummaged through filing cabinets, drawers and cupboards. He then forced the lock on the ground floor window and opened school fee boxes. There was no money kept in the school fee boxes and no property was stolen. The objective seriousness of the offending fell in the low-range for an offence pursuant to s 113(1) of the Crimes Act.
General deterrence is important in sentencing for break and enter offences involving larceny. As acknowledged in R v Ponfield, supra, it has been a prevalent offence and a clear message must be sent to like-minded persons in the community that the courts will impose condign punishment in appropriate cases, particularly when there are multiple offences committed over a long period of time. Specific deterrence also has a role to play in respect of this offender. He must understand that if he were to re-offend he would be subjected to more lengthy terms of imprisonment.
The offender's criminal history does not entitle him to leniency in the sentencing process. I was, however, notwithstanding that he was a poor historian, impressed with the evidence given by the offender. He had a good work history and had provided for his family, who are now supportive of him. I accept that he is remorseful for his offending and the impact that it has had on all of the victims. I do not however, accept the opinion of Ms Howell that there is a nexus between the offender's chronic history of alcohol and illicit substance use, his Gambling Disorder and intermittent mental health conditions, and the commission of the offences. I accept the submission made on behalf of the offender that the offender's illicit Substance Use Disorder and his Gambling Disorder gave context to the offending and provided some explanation for it. It is not in dispute that the offender is entitled to a utilitarian discount on sentence of 25% and I accept that his plea is also indicative of some remorse for his offending.
The offender's prospects of rehabilitation must be somewhat guarded. I accept that he has abstained from illicit substances whilst in custody, however, he has at no time, whether when at liberty or in custody, received any treatment for either his drug and alcohol abuse or his gambling addiction. He will need substantial help and assistance in relapse prevention. For that reason, his prospects of rehabilitation are guarded, and the assessment of his risk of recidivism is inextricably related to his rehabilitation.
I accept that the principle in R v Todd, supra, applies here, given the delay in sentencing. Sequences 1 and 2 occurred in 2006, with the bulk of the offending occurring in 2015 and 2016. The offender was sentenced for 65 offences in Queensland on 12 November 2019, to a term of imprisonment of 7 years and served a non-parole period of 2 years and 4 months. Many of the Queensland offences were committed in 2014 and 2015, the same two years as 10 of the offences now before the Court. Thus, the offender has already served a substantial period of imprisonment in Queensland for offences closely related in time and character to the New South Wales offences. Thus, the offender was left in a state of uncertain suspense as to what would happen to him when he came up for sentence subsequently, and was now being sentenced for what were stale crimes long after committing the offences - see R v Blanco [1999] NSWCCA 121 at [16]. I have therefore taken the delay in sentencing into account in ameliorating the sentence to be imposed.
I have taken into account the maximum penalty of 14 years imprisonment for offences pursuant to s 112(1) of the Crimes Act 1900, namely Sequences 2, 19, 20, 21 and 24. I have also taken into account the maximum penalty of 10 years imprisonment for offences pursuant to s 113(1) of the Crimes Act 1900, namely Sequences 25 and 35. The maximum penalties are guideposts in the sentencing process.
I have also taken into account the maximum penalty of 14 years imprisonment for each of the five matters on Forms 1A and 1B, attached to Sequences 19 and 21 respectively, together with the maximum penalty of 10 years imprisonment for the offence in Sequence 1 attached to Sequence 2 on Form 1C. The offences on the Forms 1, which the offender has asked to be taken into account, must lead to some accumulation on sentence, as they demonstrate an additional need for personal deterrence and retribution - see RO v R, supra, per Beech-Jones J at [57].
I intend to impose an aggregate sentence. For the purpose of transparency in sentencing, I am required to set out the indicative sentences I would have imposed in respect of each offence, taking into account the objective seriousness of the offending, the subjective and mitigating factors set out above, together with the 25% utilitarian discount on sentence. The indicative sentences are as follows: Sequence 2 - 9 months imprisonment Sequence 19 - 4 years imprisonment Sequence 20 - 3 years and 6 months imprisonment Sequence 21 - 1 year and 6 months imprisonment Sequence 24 - 2 years imprisonment Sequence 25 - 9 months imprisonment Sequence 35 - 9 months imprisonment
In arriving at an aggregate sentence, principles of proportionality and totality must be applied, not only to the current offending, but also in respect of the Queensland offending. Had the offender been sentenced in respect of both Queensland and New South Wales offences at the same time, clearly the sentences would have been accumulated, recognising separate victims and a much greater number of offences.
The principle of totality was described by Howie J in Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] as follows: "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."
Given the amount of accumulation in sentence, I find there are special circumstances pursuant to s 44(2) of the CSPA, and I intend to vary the statutory ratio between head sentence and non-parole period to be served. Further, I intend to backdate the sentence to commence on 29 August 2019 so as to apply proportionality to the sentence served for the Queensland offences and that for the New South Wales offences.
I intend to impose an aggregate sentence of 6 years imprisonment, with a non‑parole period of 3 years imprisonment to commence on 29 August 2019, and to expire on 28 August 2022. The balance of term will be a period of 3 years to commence on 29 August 2022 and to expire on 28 August 2025. In effect, that will amount, for all the offending in both Queensland and New South Wales, to a total sentence of 8 years and non-parole period of 5 years. Given the number of offences committed by this offender, that is the shortest period of time appropriate for the totality of the criminality involved in his offending conduct.

Orders

I hereby order: 1. You are convicted of the following offences: Sequence 2 - Break, enter and steal, an offence pursuant to s 112(1) of the Crimes Act 1900, which occurred on 26 May 2006 at Carnarvon Golf Club. Sequence 19 - Break, enter and steal, an offence pursuant to s 112(1) of the Crimes Act 1900, that occurred on 21 November 2014 at the Beverley Hills Hotel. Sequence 20 - Break, enter and steal, an offence pursuant to s 112(1) of the Crimes Act 1900, which occurred on 12 December 2014 at the Beverley Hills Hotel. Sequence 21 - Break, enter and steal, an offence pursuant to s 112(1) of the Crimes Act 1900, which occurred on 10 January 2015 at the Brewhouse Hotel, Marayong. Sequence 24 - Break, enter and steal, an offence pursuant to s 112(1) of the Crimes Act 1900, which occurred on 17 January 2015 at the Blacktown Inn. Sequence 25 - Break and enter with intent to commit serious indictable offence, an offence pursuant to s 113(1) of the Crimes Act 1900, which occurred on 27 March 2015 at the Vikings Sports Club, Dundas. Sequence 35 - Break and enter with intent to commit serious indictable offence, an offence pursuant to s 113(1) of the Crimes Act 1900, which occurred on 25 April 2015 at the Collector Hotel, Parramatta. 1. I sentence you to an aggregate sentence pursuant to s 53A of the CSPA. 2. You will serve a non-parole period of 3 years imprisonment to commence on 29 August 2019 and to terminate on 28 August 2022. 3. The balance of term will be a period of 3 years from 29 August 2022 to 28 August 2025. 4. I certify that I have taken into account the matters on the three Forms 1, Form 1A, Form 1B and Form 1C.
You must understand that your release to parole will not be automatic. The Parole Board will conduct a hearing before your release date to determine whether you will be granted parole. If you are, it is likely that you will be taken into immigration custody to await the Minister's decision concerning your deportation to New Zealand.

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: 25 March 2021

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