R v Innes

The Facts

1. Turning then to the facts. The following is taken from the agreed facts. In terms of the first offence, the victims, Matthew Rex and Kate Evans, reside at 6 Strathroy Close Cabarita in a two storey house. On 26 August 2019, the victim Mr Rex left the house at around 8am and Ms Evans left the house for the day after dropping their children at school. All sliding doors were deadlocked and windows locked. The victim Mr Rex returned at 5pm.
2. Upon entering the house downstairs, he noticed the following: business cards on the floor; the TV utility cabinet opened and the MacBook Air laptop, Sennheiser headphones and a power pack missing. In the master bedroom upstairs, the bedside table drawer was open and $1,500 in cash missing from a brown envelope with the victim's name written in black on a white label. Mr Rex's MacBook Pro laptop that was next to the bedside table, its power pack and two other power packs were missing. Two small jars of coins were taken from the victims' daughter's bedroom. Mr Rex's iPad 4 was also missing.
3. There was a hole in the back of the house sliding door and that door was open. There were two small holes; one near the latch of the door and another larger hole where the deadbolt is situated. Glass was on the ground both inside and outside the doorframe which was lightly bent. DNA from a bloodstain on the pillow in the bedroom matched the offender's profile.
4. In terms of offence number 2, the victim resided at 3/13 Walton Crescent Abbotsford, a townhouse that is attached to townhouses on either side. It is a double storey townhouse. On 10 September 2019, the victim left the house at 8am for work. All the flyscreens were undamaged and the windows shut. At 10am that day, the victim's mother left the house. At 1pm, she told the victim the house had been broken into. The victim returned home at 3pm.
5. He noticed an open window and a cut flyscreen to the right of the entrance door. In his bedroom upstairs, he noticed the television cabinet lid was open and the PlayStation 4 and Nintendo Switch worth approximately $400, and 34, PlayStation 4 and Nintendo Switch games worth approximately $2,300 were missing. The victim's gray MVMT watch worth $80 and Astro headset that had been on his desk were also missing. The victim's wardrobe appeared to have been rifled through with all the PC boxes taken down but nothing taken. Police found a fingerprint on a drainpipe at the premises that matched the fingerprint of the offender.
6. In terms of offence number 3, the victim, Phillipa Esdale, resides at 4 Rockleigh Way Epping. She was away from her home between 8am and 5.20pm on 22 October 2019. She left the door locked. When the victim returned, she noticed that there was a smashed windowpane in the ground floor rear door panel and she could see jimmy marks. The rear door was open when it had previously been locked. Most of the rooms had been ransacked and there were items all over the floor.
7. At the bottom of the stairs, the victim noticed a bottle of Moet and a Makita tool bag that had been stored in the garage. A hand towel had been used. Upstairs, cupboards and drawers were open with contents strewn on the floor and across beds. An iPhone was taken from the study. Two black and gold bracelets, an Oroton watch and several rings were missing from the dressing table in the main bedroom. In the study, the filing cabinet drawers were open and items removed from some of the files, including the victim's passport, birth certificate and those of her adult children.
8. Also removed was a direct debit form containing the victim's name, address, licence number, signature and bank account details. The passport was on the floor and the other documents were laid out flat on the desktop. The front door to the house was still deadlocked, suggesting that the offender left the property the same way he had entered. Two days after the break and enter, the victim found a Mount Franklin water bottle next to her fence. A trace swab from the mouthpiece of the bottle matched the DNA profile of the offender.
9. In terms of offence number 4, the victim, Anton Marquez, resides at 3A Cowan Road St Ives with his wife and four children. They were away from their home from 22 October to 29 October 2019. At 11.30pm on Tuesday 29 October 2019, the victim returned home and tried to open the front door but were unable to do so. The victim opened the laundry door and walked in. Lights were on throughout the house. The victim went into his bedroom and saw that the flyscreen and window had been removed. Cupboards and drawers in rooms throughout the house had been disturbed.
10. The next morning, the victim returned and noticed the following: some jewellery in a box and a chest of drawers in the master bedroom was missing. A silver male Oxygen wristwatch was missing from the victim's bedside drawers; a Sydney Olympic relay torch belonging to the victim's wife was missing from the top of the bookshelf in the lounge room. An Enrico half-size violin in a dark gray case with a small toy attached to it was missing from the second bedroom. An iPad Nano and clock radio were also missing. A quarter‑size violin and a black side case were missing from the lounge room. Also missing from the lounge room was an Apple TV box, a set of wireless headphones and a number of DVDs. Many of the victim and his family's identity documents, including expired passports and driver's licence, had been looked through and disturbed.
11. On 30 October 2019, the victim's wife received a message from the National Australia Bank indicating there had been unusual activity on her debit card. She contacted the bank and was informed that the card had been suspended as a precaution.
12. In terms of offences on the form 1, there are details of an offence of damage property where the victim, a Mr Silver, resided at 3/5-9 Cowan Road St Ives with his wife and son. The premises are a two storey terrace townhouse which is set back off the road. Access to the property is via a gate about 5 metres from the door. Between 7.30am on Friday 25 October 2019 and 6.30am on Saturday 26 October 2019, one of the lounge room windowpanes was broken and a part of it taken out next to the lock of the window. Police took fingerprint evidence from the interior of the window glass which matched the offender's fingerprint.
13. In terms of other offences on the form 1, the offender used a Visa debit card taken from Anton and Catherine Marquez's property in a number of transactions over the coming days. They were all for amounts of money under a hundred dollars. I do not propose to read onto the record the details of each of the transactions. They are, however, set out in the agreed facts.
14. In terms of offence number 5, the victims are Cheryle Weir, who was 62 years of age, and Warren Weir, of 5 Mawarra Crescent Kellyville. That premise is a double storey brick dwelling enclosed with a fence and a double garage. At 8am on 1 November 2019, Mr Weir left the house for work, leaving the front door unlocked. At 10.50am, Mrs Weir walked to her ensuite bathroom upstairs and had a shower. At 11.05am, the victim left the bathroom and began to get dressed when she heard a rustling noise opposite her bedroom towards her son's room. She went to see what the noise was when she saw the offender. The victim was in her underwear.
15. She said, "What are you doing in the house?" The victim was understandably shocked and scared. The offender said, "I came to see Warren. I'm sorry, sorry, I'll wait downstairs. Sorry to disturb you. I'm trying to catch up with Warren". The victim walked into her room and locked the door. At 11.13am, she called her husband for assistance. The offender walked back down the stairs and the victim saw him run out onto the road and turn right on Mawarra Crescent. The victim later found the window to the right of the home open with the blinds shuffled and a picture frame face down. The victim also noticed that a window at the side of the garage had been removed with the window having been lifted out of the window sill. The window was not ordinarily like this. The victim's son's room had been disturbed. She noted that a small set of jewellery drawers which had previously contained old and dress-up jewellery had been emptied.
16. The victim realised after the incident that she knew the offender. Mrs Weir had met the offender through her husband, Warren Weir, who is a pastor in various gaols. Warren Weir had mentored the offender in a compulsory drug unit and the offender had attended their home on several occasions for a meal approximately five years previously. On the day of the offence, the victims did not give permission for the offender to come into their house.
17. On 4 November 2019, the offender was arrested at 8.30am in his car at Cranebrook. At 9.45am, police searched the vehicle and found a silver coloured folding knife and black latex gloves. There was some property found from what had been taken during the offences number 1, number 3 and number 4. They are set out in the agreed facts. There was also found - and these items are the subject of a goods in custody charge which is on the form 1 - certain other items which I will not read out onto the record; they are set out in the agreed facts.

Objective seriousness

1. Turning then to my assessment of the objective seriousness. In terms of the break, enter and steal offences, I have had regard to the objective factors discussed in the guideline judgment of R v Ponfield (1999) 48 NSWLR 327, noting that the status of that decision has been questioned; see TL v R [2017] NSWCCA 308 at 73. There would appear to have been limited planning associated with each of the offences, given that the offender entered the premises at a time when it would be expected no‑one would be at home. I note that in relation to offence number 1, it appears that a tool was used to obtain entry to the premises.
2. In each offence, the value of the items was not overly substantial, however, no doubt a number of the items taken were very important to the victims. I also note that a number of the items taken were electronic or computer goods. Some of the properties were more disturbed than others during the commission of the offences.
3. I assess the objective seriousness of offences 1 and 2 as being below a notional midrange of objective seriousness, but not at the very bottom of the range. In relation to offence number 3, I note the property was essentially ransacked. I assess the objective seriousness of this offence as being above that of offences 1 and 2, but still below a notional midrange offence. I assess the objective seriousness of the fourth offence as being at the same level of offences 1 and 2. Offence number 5 involved a confrontation with one of the victims which would have been very disturbing for her. I would assess the objective seriousness of that offence as being at the same level as that in offence number 3. In assessing the level of objective seriousness of the offences, I have had some regard to the fact that some of the property was recovered in relation to offences 1, 3 and 4.

The offender's subjective case

1. Turning then to my assessment of the objective seriousness. In terms of the break, enter and steal offences, I have had regard to the objective factors discussed in the guideline judgment of R v Ponfield (1999) 48 NSWLR 327, noting that the status of that decision has been questioned; see TL v R [2017] NSWCCA 308 at 73. There would appear to have been limited planning associated with each of the offences, given that the offender entered the premises at a time when it would be expected no‑one would be at home. I note that in relation to offence number 1, it appears that a tool was used to obtain entry to the premises.
2. In each offence, the value of the items was not overly substantial, however, no doubt a number of the items taken were very important to the victims. I also note that a number of the items taken were electronic or computer goods. Some of the properties were more disturbed than others during the commission of the offences.
3. Turning then to the offender's subjective case. He is currently 53 years and was 52 at the time of the offences. The offender has a very lengthy criminal history with many entries for similar types of offences on his history. The last time he was sentenced was on 6 September 2016 when he was sentenced in this Court, again sitting in Penrith, for a break, enter and steal offence. He received on that occasion a sentence of four years and one month with a non‑parole period of one year and ten months, and there were other offences taken into account on a form 1. He also has criminal records in Queensland, Victoria and the Northern Territory for stealing type offences. Clearly his prior record of similar offending disentitles him to leniency in this sentence.

Sentence Assessment Report and psych reports -

1. In terms of his subjective case, there is before me a Sentencing Assessment Report dated 18 November 2020 and a psychological report by Ms Bethany Christian, forensic psychologist, dated 1 December 2020. The offender also gave evidence on his sentence and confirmed the contents of those reports, in particular, the contents of the psychological report.

Family background

1. In terms of his education and employment history, the offender told the author of the Sentencing Assessment Report that as a result of his parents' relocations, the offender attended ten different primary schools. He obtained average grades and excelled in sporting pursuits. He told the author of the Sentencing Assessment Report that before leaving school prior to the completion of year 10, he obtained a butcher's qualification and that he continued to work in the field. However, he informed the author that as a result of illicit drug use and periods of incarceration, he has been frequently unemployed. He reported to Ms Christian that he had been dismissed twice for stealing from his employers. The offender was last employed in 2018 and at that time, he was installing water tanks. He is currently engaged as a sweeper within the gaol system.

Education and employment history

1. In terms of his education and employment history, the offender told the author of the Sentencing Assessment Report that as a result of his parents' relocations, the offender attended ten different primary schools. He obtained average grades and excelled in sporting pursuits. He told the author of the Sentencing Assessment Report that before leaving school prior to the completion of year 10, he obtained a butcher's qualification and that he continued to work in the field. However, he informed the author that as a result of illicit drug use and periods of incarceration, he has been frequently unemployed. He reported to Ms Christian that he had been dismissed twice for stealing from his employers. The offender was last employed in 2018 and at that time, he was installing water tanks. He is currently engaged as a sweeper within the gaol system.

Substance use

1. In terms of his substance use, the offender told the author of the Sentencing Assessment Report that he has been using heroin since the age of 16; he has been assisted by methadone in 1999 and buprenorphine in 2019. The offender attended a rehabilitation program in 2005 but was asked to leave due to his use of illicit drugs. He is currently on the waiting list for future possible Buvidal injections. He has also completed the Compulsory Drug Treatment Order program in the past and gave evidence as to the benefits he had obtained as a consequence of doing that program.
2. The offender told the psychologist that he had not addressed the issues that led to his history of drug use, which he considered to be his previously unrevealed sexual abuse when a minor, and that he now realised that he had to do so if he wanted not to resume his past drug habit. He stated that he has had enough of illicit drugs and wanted to change. He also in his evidence expressed that type of sentiment, but one must accept that he has probably said those things to other sentencing judges on other occasions.
3. The offender told Ms Christian that he first used alcohol at the age of 12 or 13 when he moved to Queensland. By the time he was 14, he had developed a daily habit of alcohol use and consumed whatever he could get his hands on. The offender also told Ms Christian that he first used marijuana at approximately 11 years of age and that by the time he was 13 or 14, he consumed it on a daily basis. He said he stopped using marijuana after commencing his use of heroin. He recalled that after his release from juvenile custody at the age of 15 or 16, he experimented with additional illicit substances. He tried cocaine, amphetamine and hallucinogens. Regarding his heroin use, the offender stated that it quickly became a daily habit and that he consumed up to 2 grams a day which cost a thousand dollars a day.
4. The offender gave evidence that when last released from custody on 27 June 2019, he was on a Suboxone program. He was living with his father near Catherine Hill Bay and was required to catch three buses to get to Wyong Hospital to obtain his dose of that substance, and he said he had difficulty finding the bus there. His evidence was that he ceased getting his Suboxone dose and nightmares of his abuse returned which led him to descend back into heroin use. The offender is, of course, clearly a long‑term heroin addict.

Psychological/psychiatric history

1. In terms of his psychological and psychiatric history, he reported to Ms Christian that he was not aware of any family history of mental illness. The offender reported that he first saw a psychologist at Parklea Correctional Centre during this period of custody and he was diagnosed with post‑traumatic stress disorder at the time. He recalled that the diagnosis was made due to his childhood experience of physical abuse by his stepfather and his symptoms at the time. The offender told the author of the Sentencing Assessment Report that he would be seeking professional assistance in the future to address the issues surrounding this abuse when he was a child.

Response to supervision if relevant

1. In terms of his previous response to supervision by Community Corrections, he has been supervised while subject to parole orders and recognisances on nine occasions since 1984. He has been found to be in breach of most of his court orders as a result of reoffending and/or poor response to supervision and related illicit drug use. The offender is assessed as having a medium risk of reoffending in the Sentencing Assessment Report. Given his prior criminal record and the little amount of continuous time he has been out of custody since 1994, that might be thought to be a very generous assessment and is not one that I share.

Attitude to the offence

1. In terms of his attitude to the offence, the offender stated to the author of the Sentencing Assessment Report that the victims did not deserve to have their property stolen, adding that he was always careful to ensure nobody would be at the residence he broke into, although I note someone was at home during the commission of the last offence. He expressed shame for his past behaviour to the psychologist. The offender expressed his remorse for the offending when giving evidence, and that evidence plus his early plea of guilty satisfies me that he has some level of genuine remorse for the offences.
2. I referred earlier to the fact that the offender gave evidence on sentence. I found him to be an acceptable witness and I am prepared to accept that he has only recently revealed the abuse that he suffered as a minor, and accept that is likely to have precipitated his long battle with illicit drugs. Of course it is well known that people very late in life are only able then to reveal childhood sexual abuse.

Imposition of sentence

1. There was an early plea of guilty and I will allow him a 25% discount of his sentence. I accept, as I say, that he has a level of genuine remorse. The material in the offender's subjective case together with the evidence he has given on sentence establishes that he has had a very difficult early life with some considerable social disadvantage. While he has had many years to adopt changes in his life, I note the principles in Bugmy v R [2013] 249 CLR 571 and the relevance of social disadvantage have a role to play here, and that the effects of social disadvantage are long lasting.
2. Having regard to his extensive criminal history for similar offending, the amount of time he has spent in custody during his adult life, his inability to embrace supervision in the past, I consider that his prospects of rehabilitation are guarded, bordering on poor.
3. The length of time he has spent in custody in his adult life suggests that he is either institutionalised or bordering on being institutionalised. I note in that regard the Sentencing Assessment Report records that he is not considered to be a management problem within the gaol. Given his risk of institutionalisation, I consider it appropriate to make a finding of special circumstances when fixing the non‑parole period.
4. He has been in custody since the date he was arrested, being 4 November 2019, and his sentence will be backdated to commence on that date. I will use the aggregate sentencing provisions when imposing sentence. If I had not done so, given the number of offences and the five different sets of victims, there would have been a reasonable degree of accumulation of the sentences.
5. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. Break, enter and steal offences are very prevalent in our community. People should be able to leave their homes without fearing that they will be broken into and their possessions taken. Sentences that will act as some meaningful deterrent need to be imposed for such offences. The maximum penalty has been taken into account as a legislative guidepost.
6. The offender is convicted of five offences of break, enter and steal to which he has pleaded guilty. I will firstly record the indicative sentences. In determining the indicative sentences and fixing the aggregate sentence, I have had regard to all of the objective and subjective factors I referred to earlier.
7. Mr Innes, the sentences you will hear me first announce are what are called indicative sentences. You will then hear me announce an aggregate sentence, which is the sentence and non‑parole period that you will serve. It is not arrived at by simply adding up all of the indicative sentences. When announcing the aggregate sentence, I will tell you the date it starts from, the date it ends and the date when you are first eligible for parole.
8. On offence number 1, there is an indicative term of two and a half years' imprisonment. On offence number 2, there is an indicative term of two and a half years' imprisonment. On offence number 3, there is an indicative term of three years' imprisonment. On offence number 4, having regard to the offences on the form 1, there is an indicative term of three years' imprisonment. On offence number 5, there is an indicative term of three years' imprisonment.
9. I impose an aggregate sentence of six years' imprisonment with a non‑parole period of four years. It commences on 4 November 2019. The sentence expires on 3 November 2025. The non‑parole period expires on 3 November 2023. The earliest date you are eligible to be released to parole is the date of the expiry of the non‑parole period which is 3 November 2023. Whether you are in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date.
10. Under s 18B of the Drug Court Act, I refer the offender to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order.

Orders 1. The offender is convicted of the offences to which he pleaded guilty. 2. Impose an aggregate sentence of 6 years imprisonment with a non-parole period of 4 years. The sentence commences on 4 November 2019 and expires on 3 November 2025. The non-parole period expires on 3 November 2023. 3. Pursuant to s 18B of the Drug Court Act the offender is referred to the Drug Court to determine whether he should be the subject of a compulsory drug treatment.

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: 23 March 2021