R v Jack Toutounji

District Court of NSW|2017-03-31

Solicitors: Mr B Ko (DPP) Mr D Pace (Offender) File Number(s): 2016/9303, 2016/17852

Introduction

The offender appears for sentence after adhering to his pleas of guilty entered in the Local Court in relation to 5 offences (the "principal offences"). As to the first, third, fourth and fifth principal offences, the offender seeks to have taken into account, in total, 23 further offences on 4 Form 1 notices. Despite the fact that there is no Form 1 in relation to the second principal offence, I nevertheless intend to refer to it as such to avoid confusion.
The bulk of all 28 offences are break, enter and steal type offences committed throughout 16 of the wealthier suburbs of Sydney over an approximate 4 month period between September 2015 and January 2016. They only came to an end consequent upon the offender's arrest. None of the offences are subject to a standard non-parole period. As to their maximum penalties, these did not change over the period in question and I will only refer to them once.
The first principal offence is an offence of break enter and steal committed contrary to section 112(1)(a) of the Crimes Act for which the maximum penalty is 14 years imprisonment.
In relation to this first principal offence, the offender seeks to have two offences on a Form 1 taken into account. The first is an offence of larceny committed contrary to section 117 of the Crimes Act, for which the maximum penalty is 5 years imprisonment. The second is another offence of break enter and steal committed contrary to section 112(1)(a) of the Crimes Act.
The second principal offence is a further offence of break enter and steal committed contrary to section 112 (1)(a) of the Crimes Act. As mentioned, there are no Form 1 offences to take into account in relation to the second principal offence.
The third principal offence is an offence of aggravated stealing in and breaking out of a dwelling committed contrary to section 109(2) of the Crimes Act, for which the maximum penalty is 20 years imprisonment. The circumstance of aggravation relied upon was that the offender knew that there was a person or persons in the dwelling when the offence was committed.
In relation to the third principal offence, the offender seeks to have 12 offences on a Form 1 taken into account.
The first offence is an offence of stealing property in a dwelling house committed contrary to section 148 of the Crimes Act, for which the maximum penalty is 7 years imprisonment.
The second is a further break enter and steal offence committed contrary to section 112(1)(a) of the Crimes Act.
The third is an offence of larceny committed contrary to section 117 of the Crimes Act, for which the maximum penalty is five years imprisonment.
The fourth to tenth are seven offences of dishonestly obtaining property by deception committed contrary to section 192E (1)(a) of the Crimes Act for which the maximum penalty is 10 years imprisonment.
The eleventh is a further break, enter and steal offence committed contrary to section 112(1) (a) of the Crimes Act.
The twelfth is an offence of breaking and entering with intent to steal committed contrary to section 113(1) of the Crimes Act, for which the maximum penalty is 10 years imprisonment.
The fourth principal offence is a further offence of break enter and steal committed contrary to section 112(1)(a) of the Crimes Act.
In relation to the fourth principal offence the offender seeks to have three offences on a Form 1 taken into account. The first two are further break, enter and steal offences committed contrary to section 112(1)(a)of the Crimes Act. The third is an offence of stealing a motor vehicle committed contrary to section 154F of the Crimes Act, for which the maximum penalty is 10 years imprisonment.
The fifth principal offence is a further offence committed contrary to section 112(1)(a) of the Crimes Act.
In relation to this fifth principal offence, the offender seeks to have taken into account 9 offences on a Form 1.
The first and second are further break, enter and steal offences committed contrary to section 112(1)(a) of the Crimes Act.
The third to seventh are five further offences of dishonestly obtaining property by deception contrary to section 192E(1)(a) of the Crimes Act.
The eighth is another offence of breaking and entering with intent to steal committed contrary to section 113(1) of the Crimes Act.
The ninth is a related offence contained on a s. 166 certificate and is an offence of having goods in custody suspected of being stolen contrary to section 527C(1)(a) of the Crimes Act, for which the maximum penalty is six months imprisonment and/or a fine of five penalty units.
There is also a backup offence on another s. 166 certificate which it is is common ground should be dismissed after I impose my sentences for the principal offences. Such backup offence is an offence of disposing of stolen property committed contrary to s. 188(1)(b) of the Crimes Act.
The sentence hearing occurred during the afternoon of Friday the 31st March last after which I stood the matter over to today to prepare these remarks on sentence. At the sentence hearing, Mr Ko, solicitor, appeared for the Crown and Mr Fraser, of Counsel, appeared for the offender.
On behalf of the Crown, Mr Ko handed up the usual, although in this matter a rather thick, Crown bundle containing a two-page summary sheet and 17 sets of documents. These documents, by consent, became exhibits A1 to A17 and comprised the committal for sentence documents in relation to the five principal charges, copies of the relevant form 1's, the two section 166 certificates, an agreed statement of facts, photographs of the relevant premises in relation to 5 of the break-ins, the offenders criminal and custodial history and, finally, material from the State Parole Authority which revoked the offenders parole that he was on at the time of committing the subject offences. Such parole related to an earlier break, enter and steal offence. In this regard, I will come to the offender's extensive prior criminal history shortly.
Mr Ko also tendered the original form 1 documents which became, by consent, exhibits B1 to B4. Further, he tendered a confidential letter and attached affidavit going to the issue of past assistance which, again by consent, became exhibit C.
Finally, the Crown handed up a chronological table summarising the 5 principal and 23 form one offences which I marked as MFI 2.
On behalf of the offender, Mr Fraser tendered a forensic psychologist's report from a Mr Bradley Jones, dated 29 March 2017, which, by consent became Exhibit 1. Mr Fraser also handed up a written outline of submissions which became MFI 1. The offender was not called.

THE FACTS

The agreed statement of facts is a detailed and lengthy document, all of which is quite relevant. I have read it carefully and taken it all into account. However, the summary that I will now embark upon will not refer to all matters described therein.
In relation to the first principal offence, which took place between the 12th and 13th of September 2015 at Darling Point, the female victim left her unit to travel to Melbourne at 9:00am on the 12th. The unit was a one-bedroom apartment on the ground floor of a block three. When leaving she locked and secured all windows and the front door. The windows all had metal bars. The male victim, her partner, was overseas at the time.
About 9:10 PM on Sunday the 13th September 2015, a neighbour saw that the unit's front door had been damaged and called police. Upon their attendance, the police saw pieces of wood from the front door scattered about the unit. They also found cupboard doors open and clothes strewn over the floor. The photographs comprising exhibit A10 reveal, inter alia, the extensive damage to the front door, the entire centre panel of which had been smashed and removed, leaving the door's frame intact and still locked. Such door needed to be replaced. The residents later discovered that a large amount of property had been taken which included valuable clothing, passports, computers, a plasma television and various pieces of musical equipment. The total value of the items stolen was about $23,900. The offender's fingerprints were found on a broken piece of the front door located in the kitchen.
The first form 1 offence relevant to the first principal offence occurred, on the 16th September 2015 at Darlinghurst when at about 4:20 PM the offender stole numerous items from a Honda motor vehicle parked on the street. After returning to the vehicle, its owner noticed the front driver's side door slightly ajar and upon further inspection saw that the inside thereof had had been "ransacked" with several CDs noticed to be in the driver's footwell. The total value of the property stolen was $2,450 and included an Apple iPod and iPad, sets of glasses, the owner's drivers licence, a silver ring and numerous personal documents and personal medications. A subsequent forensic analysis identified a fingerprint of the offender on one of the CDs left in the driver's footwell.
The second form 1 offence referable to the first principal offence took place at Balmain East between the 28th to the 30th September 2015, when the offender broke and entered a freestanding two-storey home whilst its resident was overseas. The house was being looked after by such resident's partner whom did not live there but whom had last attended the property on the 28th, activating the alarm and ensuring that both front doors were deadlocked and both security doors locked upon her departure. On Wednesday the 30th, a neighbour noticed that the house had been broken into with various doors and windows having been damaged. The items taken included a laptop computer and some cash with a combined value of between $460 and $510. The offender's fingerprints were found on the inside of the front security door.
The second principal offence involved the breaking, entering and stealing from premises in Centennial Park between the 25th and 26th of December 2015. At the relevant time, the owners and their three children were overseas. Apart from the living quarters, the property included a separate building at the rear facing a laneway wherefrom one of the owners ran her fashion design business. Shortly after midday on Christmas Day, the offender unlawfully gained access to the premises by opening an unlocked rear lane door or by climbing over a side fence and then opening further closed rear doors, whereupon he stole a very large amount of property valued at $125,445. When the break-in was discovered by a cleaner on the 26th December 2015, its interior was in the condition as shown by some of the photographs in exhibit A12. Several rooms, in particular the walk in closet, had been very significantly disturbed. Amongst the items taken from the business part of the premises included 4 Apple Mac's and 1 apple iPad, over 450 designer clothing samples which were individual unique pieces and had taken a significant amount of time and expertise to create, and some Christmas presents. Missing from the main residence was a small box containing 38 round diamonds and numerous other valuable pieces of jewellery and clothing, together with over 120 bottles of valuable wine champagne and spirits.
Approximately 2 and a 1/2 hours after gaining entry to the premises the offender flagged down a taxi in a nearby street, telling its driver that he was moving house and thereby gained the drivers assistance in moving various boxes and bags containing the stolen property into the taxi. The offender then directed the driver to an address in Rushcutters Bay where the offender and another male from that address unloaded the property and carried it inside. Some of this property was recovered when the police executed a search warrant at the Rushcutters Bay address on the 8th of January 2016, although a considerable amount has never been recovered. The offender's fingerprints were found on one of the items received. During a subsequent record of interview the offender admitted to selling all the computers and a quantity of the clothing. The female owner could not provide receipts for all the material taken and despite the stated value of the property stolen, eventually settled her claim against the relevant insurer for $62,925.
The third principal offence was, as mentioned, the aggravated stealing in a dwelling and breaking out offence which occurred on the 27th December 2015 at another address in Centennial Park. The two adult occupiers of these premises, which was a freestanding house with an attached studio, again with rear lane access, went to bed at about 9pm on the evening of the 26th of December. At this time, one of them left a rear sliding door open. At about 4:30 AM the next morning, the offender was caught on CCTV walking up the rear lane in question and about 10 minutes later returning to the area of the relevant camera and then disappearing over the rear fence into the subject houses rear yard where he was captured on another camera entering through the open rear sliding door mentioned. This door opens into the dining and kitchen area where he opened and closed various cupboards. The offender then went in and out of the residence a number of times, and shortly before 5:30 AM was captured on another CCTV camera in the premises front yard. To get to that yard without being seen on any other CCTV camera, the offender had to unlock and open the front door of the premises from the inside. The offender was then recorded getting into one of the occupants Lexus motor vehicle and driving it away.
About one hour later the female occupier discovered the break-in. Apart from the missing Lexus, which was valued at $100,000, an Apple iPhone and iPad were missing together with a set of house keys, the master keys to a hotel owned by one of the residents, a gym key and about $50 in cash.
Again a police investigation revealed the fingerprints of the offender on an item in a desk drawer in the studio.
In a later record of interview the offender claimed that he took the Lexus, which was apparently not recovered, to a" dealer in Waterloo" and swapped it for "a gram of gear."
As to the 12 form 1 offences to be taken into account on sentencing in relation to the third principal offence the first involved the offender stealing property in a dwelling house on the 15th of December 2015. The subject dwelling was in Kirribilli and was a unit on the ground floor. Its resident left a window above the kitchen sink opened for airflow before leaving for work. When the resident returned later that day, she noticed that property to the value of over $2000 was missing including about $700 in change, an electric drill and a laptop. Numerous cupboards and drawers had also been opened and their contents tipped out. A cigarette had also been put out on the carpet in the guestroom. During a later record of interview, the offender remembered noticing the kitchen window open and obtaining a ladder from elsewhere to enable him to climb in through same. He also remembered smoking in the residence.
The second form one offence, being a further break enter and steal offence, occurred on the 16th December 2015 at Wollstonecraft and involved the offender breaking and entering a three bedroom ground floor apartment whilst its three occupants were absent. The offender obtained access through opening the locked aluminium window of a bathroom. Some $6,700 worth of property was taken comprising numerous pieces of jewellery which included a silver Tiffany charm bracelet and a vintage white gold ring containing precious stones. The offender was identified by virtue of his palm print being identified on the towel rack in the bathroom near the open window. When later spoken to by police he said that the window was unlocked, so he slid it open, "took some jewellery and took off."
The third form 1 offence referable to the third principal offence was the larceny offence which was committed on the 17th of December 2015 at Edgecliff. On this occasion, the offender took a wallet from an unlocked utility parked on Edgecliff Road left with a window open. He then used it to commit the next seven form 1 offences, all being offences of dishonestly obtaining property by deception. In this regard, he used the stolen MasterCard to fraudulently obtain items such as tobacco, food and liquor to the value of $568.04 over approximately the next 40 minutes before the cards owner returned to his car and after noticing that his MasterCard had been stolen, contacted his bank.
The 11th matter on the form one relevant to the third principal charge is a further break enter and steal offence, this time committed between the 23rd and 24th of December at Surry Hills. The premises in question were a home unit above some shops. The resident thereof left at about 1 PM on the 23rd December but whilst its windows were closed, she was unsure if they were locked. When she returned at about 2:30 AM the following morning she noticed that the living room window was open. In all, items valued at over $3770 were found to be missing including two laptops, an iPad and an old camera. The offender had also taken a packet of cigarettes and what are described as "a few other random items like photos". There was some disturbance caused to the premises which appears from the photographs to have been of a relatively minor nature. Yet again, the offender's fingerprints were found at the premises. When later spoken to about this offence, the offender said he could not remember it due to the amount of illicit drugs and alcohol he said he had consumed.
The final offence on the form one relevant to the third principal charge is the break and enter with intent to steal offence which was committed on the 29th of December 2015 again at Centennial Park, this time at an address in Moore Park Road. At about 2:25 AM that morning the male and female residents of those premises, which were a three-storey terrace home, were in bed when the male resident heard a noise coming from the front of the house whereupon he walked downstairs and noticed that the front veranda window was half open after he had closed it when he went to bed. As he walked closer, he saw the offender outside the window on the veranda. The offender saw him and ran off. Nothing was found to be missing. Again the offender's fingerprints were found, this time on the outside the premises. When the offender was later spoken to about this offence by police, he admitted trying to get in after climbing over a back fence and running off when he saw "someone walking down the stairs".
The fourth principal offence, being, as mentioned, another break, enter and steal offence occurred between the 26th of December 2015 and the 10th of January 2016 at Paddington and involved a three-bedroom terrace house whose owners had left with their two small children on the 26th of December to go on holidays. Whilst the front door and windows were left locked and secured upon their departure a rear ground floor sliding door was closed but not locked. When they returned on the 10th of January 2016, the rear door in question was noticed to be open as was the rear gate that led into a lane way. In all, property to the value of about $15,000 was missing and the main bedroom had been "ransacked." The property taken included all 10 suits belonging to the male adult resident, coupled with other clothing, a valuable handbag, new wallet, a racing bike and some further jewellery including some of sentimental value. The family did not have contents insurance. Only the wallet was recovered. When later spoken to by police, the offender admitted gaining entry via the back lane and then jumping over a neighbour's fence and opening the sliding door in question. He also said that he sold the racing bike "to one of his dealers for a ball of gear and a gram of ice."
The first form one offence relating to the fourth principal offence is again a break, enter and steal offence committed on the 2nd January 2016 at Vaucluse. The premises on this occasion were a two-storey two-bedroom rented home where a family of four lived. When the adult male resident returned from shopping with his eight-year-old daughter shortly before 2 PM, he entered the house first and noticed a window open above the kitchen sink whereas it had been closed when they had left. His daughter then entered the house and told him that she had seen a male running from the side of the house when her father entered it. Approximately $5000 worth of property was found in missing including a camera, the female resident's engagement ring and her mother's antique jewellery. Police later identified the offender by a black cap found outside of the kitchen window through which he obtained entry and upon which his DNA was found. When later spoken to by police, he said that he could remember certain parts of the offence which he said he committed to support his "habit". He also said that he committed the "breaks and that….all the way up, you know, Paddington, Double Bay, Rose Bay, Vaucluse" because this was where his drug suppliers were located.
The second and third offences on this form 1 were committed at Manly on the 8th of January 2016. The two female victims had left the home they shared locked and with a Mazda motor vehicle owned by one of their father's parked outside. When they returned, they noticed that the car was gone and that the side door was broken. Upon entering the home, they discovered that the car's keys were missing together with a set of house keys, both of which had been left in a handbag on the couch in the lounge room. The next morning, the offender was captured on closed-circuit television parking the subject Mazda in Redfern and shortly thereafter it was seized by police. Later, the offender's DNA was found on its steering well. The offender told police that he picked the house in question after walking by it and getting a "vibe" and then breaking in by smashing a window or a door. He said he wanted to sell the vehicle but ultimately lost its key and didn't know where the car went thereafter.
As mentioned, the fifth principal offence is a further offence of break and enter and steal, on this occasion committed on the 15th of January 2016 at a rear ground floor unit at Edgecliff. At about 3:40 PM that day, when the residents returned they noticed a hole in the kitchen window directly above its window locking mechanism. This damage is shown in several of the photographs in Exhibit A14. In one bedroom, the contents of various drawers and cupboards had been thrown over the bed and the floor as shown in other such photographs. Quite a considerable amount of items had been stolen totalling in value $17,564. This included $1200 in cash, a number of cameras, two laptops, an iPhone, a very expensive watch and various items of jewellery. Subsequent investigation revealed that palm prints on the interior of the kitchen window which had been damaged belonged to the offender.
The first offence on the form 1 in relation to this fifth principal offence is a further break enter and steal offence which occurred on the 12th of January 2016 at a two-bedroom ground floor unit at McMahon's Point. Late that afternoon when first one and then the remaining two residents returned home, property to the value of $2755 was noticed to have been stolen. This included various items such as an iPod, a mobile phone, a camera, numerous passports, two laptops, and various items of jewellery. It would seem that the offender gained entry through a rear window which whilst closed, may not have been locked. Again the offender was identified by a palm print located inside the premises. When shown a photograph of the unit by police, the offender remembered the incident stating that he was "off me head" on drugs and needed money "to get on".
The second form 1 offence is yet another break, enter and steal offence, this time occurring on the 13th of January 2016 at a home in Woollahra. When the resident went to work that morning, she left a lounge room window partially open which had an attached fly screen. Upon returning home she noticed, inter alia, that the fly screen had been partially removed and then discovered property to the value of $4,007 was missing. This included a laptop, a camera, $900 in US currency, some identification documents and a MasterCard.
The next five form one offences referable to this principal offence are offences relating to the fraudulent use of that MasterCard by the offender over a period of about half an hour that afternoon. The five fraudulent transactions totalled in value $276.61 which was spent on buying, inter alia, clothing, pharmaceutical items and cigarettes.
The eighth form 1 offence is another break and enter with intent to steal offence which occurred on the 17th of January 2016 at a two level semi-detached residence in North Sydney which had been divided so that one resident lived on the ground floor and the other lived on the floor above. Early in the afternoon, the ground floor resident went for a walk. When he returned not long thereafter he went to the upstairs residence but heard a banging noise coming from his downstairs residence and went to investigate. When he walked into one of the bedrooms he saw that the window had been smashed and there was broken glass on the floor and an old gardening tool on the bed. The bedside drawers were open. The resident then saw the offender and verbally challenged him. The offender apologised stating that he was "on drugs", gave a false name and asked to be let out. When the resident told the offender that he had cancer, the offender said his own mother had died of cancer 10 years before. The resident then let the offender out the back door. It was discovered that nothing had been stolen. Police attended and swabbed what appeared to be blood on the sill of the damaged bedroom window and later analysis identified it as the offender's. Further, a number of finger and palm prints of the offender were also identified. When the offender was later spoken to about this event he said that he remembered "the old bloke" and agreed that he had gained entry by breaking the subject window.
The ninth form 1 offence is the goods in custody suspected of being stolen offence which relates to numerous items found in the offenders backpack when he was arrested at Reeve Street, Waterloo on the 18th of January 2016. These items included various pieces of jewellery, a mobile phone, a Medicare card, two pension cards and a Star Track couriers collection card, none of which belonged to the offender. When interviewed the offender told police, inter alia: "I'm off me head 24/7 like, lucky if, you know, I, I can (4) remember what I've done, unless someone reminds me of it… I'll take about 20 - 30 Zannies a day and I'm usin two or 3 grams a day of heroin … I know that I do shit, but it's like, a pretty much a black out half the day, you know. Walking zombie." He also said that the stolen items nearly always go to whomever he "gets heroin off." He went on to say that he had been homeless for at least six months and was sleeping on the street and that he had been "using heavy, every day, yeah".

The plea of guilty

It is common ground that the offender pleaded guilty at the earliest possible time and that he is thereby entitled to the maximum discount of 25% on the sentences that would otherwise be imposed.
Apart from the remorse shown by the pleas of guilty, there are further expressions thereof contained in the history to Mr Jones which I have taken into account in the offender's favour whilst noting, as stated, that he did not give evidence before me.

Additional discount for past assistance

The offender has also provided authorities with the assistance described within exhibit C. Having taken into account its nature, together with the mandatory factors set out in s. 23(2) of the Crimes (Sentencing Procedure) Act 1999 and the parties arguments in relation thereto, pursuant to ss. 23(1) and 23(4) of that Act, I assess the value of such past assistance as entitling the offender to a further discount of 10% on the sentences that would otherwise have been imposed.
To avoid any possible confusion, this means that the total discount on the sentences that would have otherwise been imposed is 35% with 25% thereof relating to the plea of guilty and the remaining 10% relating to past assistance.

Prior criminal history

According to the offenders prior criminal history, he was either born on 8 September 1975 or 8 September 1976 and was therefore aged either 39 or 40 at the time of the subject offending. His record is a very poor one. Apart from some relatively minor offences dealt with in the Children's Court, as an adult he quickly settled in to what could be called a life of crime largely involving offences of the same or similar type to those for which he currently appears for sentence. Between 2000 and 2008 he has six convictions for break enter type offences alone, each punished by a term of imprisonment. One such conviction is for the aggravated version as it was committed whilst armed. His record also contains numerous convictions for other offences such as goods in custody.
For some of those offences, the offender was dealt with by the Drug Court but to no apparent positive effect.
In October 2012, he was sentenced to 4 years imprisonment commencing on 4 July 2012 with a minimum two year and 3 month non-parole period for yet another offence of break, enter and steal for which a similar type offence was taken into account on a Form 1. At the same time he was sentenced to concurrent terms of imprisonment of 2 years and 6 months commencing on 4 April 2012 for offences of using an offensive weapon to prevent lawful detention and breaking and entering a dwelling house with intent.
Accordingly, the offender was still on parole in relation to the four year head sentence he received in October 2012 at the time he committed all the subject offences which is, of course, an aggravating feature.
Overall, the offender's record is such that it not only disentitles him to leniency, but demonstrates a continuing attitude of disobedience of the law sufficient, in my view, to give rise to the aggravating factor contained within s. 21A(2)(d) of the Crimes (Sentencing Procedure) Act in which case retribution, deterrence and the protection of society indicate that a more severe penalty is warranted. In stating this, I note that an offender's prior criminal record cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the subject offending: see Veen v The Queen (No 2) (1988) 164 CLR 465; R v McNaughton (2006) NSWLR 566.

Presentence custody

The offender has remained in custody since his arrest for the subject offences on 18 January 2016. This would usually mean that the commencement of any term of imprisonment to be imposed would be backdated to that date. However, the position here is a little more complicated.
After the offender was granted parole and released thereto on 3 October 2014 in relation to the sentences imposed in October 2012, such parole was revoked due to his ongoing use of illicit substances, non-prescribed medications and non-compliance with directions. As a result, he was returned to custody, as far as I can ascertain from the records, in January 2015.
Such revocation was then rescinded by the Parole Board on 28 July 2015 and the offender was released to parole again on 29 July 2015 upon condition that he immediately report to Adele House in Leppington to undergo and complete its residential rehabilitation program in relation to his long term drug problems. He not only arrived 8 hours late but then immediately tested positive for methamphetamine which he admitted he used on the train on the way there. As a result, he was immediately "exited" from the Adele House program but told that he would be re-admitted if he completed a detoxification program. Shortly, thereafter he entered the detoxification program at Fairfield Hospital where he stayed for 10 days although he continued to use illicit substances during the first two days of such admission as well as in the short period between leaving Fairfield Hospital and re-entering Adele House on 7 August 2015. He was then discharged again from Adele House sometime prior to 18 August 2015 as a result of non-compliance with the program and behavioural issues.
As a result, Community Corrections requested that the offender's parole be revoked and the Parole Authority did so effective of 18 August 2015 and a warrant was issued for his arrest. After he was arrested for the subject offences on 18 January 2016, the Parole Authority sentenced him to serve 10 months and 6 days by way of balance of parole commencing on that date and expiring on 3 December 2016.
It can thus be seen that the offender's parole for the earlier offence was revoked prior to the commission of any of the subject offences with the result that his time in custody between 18 January 2016 and 3 December 2016 was not directly referable thereto. On this basis, the Crown argued that any sentence or sentences of imprisonment that I impose should commence on 3 December 2016.
However, Mr Fraser argued that in these circumstances the period spent in custody serving the balance of parole mentioned "will form part of a continuous period of custody which includes the sentences to be passed in the present hearing" and therefore the principle of totality must be applied which gives the court a discretion to backdate the commencement of any fresh sentence prior to 3 December 2016.
In Callaghan v R (2006) 160 A Crim R 145. Simpson J as Her Honour then was, at [21]-[23] noted that the "circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule" and held that the court has a discretion to choose an earlier commencement date, to reflect, for example, the chance that an offender had of obtaining "a second chance at parole" had it not been for the commission of the subject offence or offences. However, such discretion must be exercised in a principal way: see Barnes v R (2014) NSWCCA 224.
In the present case, the offender was on his second release to parole when arrested for the subject offences and the prospect of him being granted a third release but for the subject offending would seem remote.
However, I cannot ignore the fact that the offender has been in custody since 18 January 2016 and principles of totality, in my view, require me in this case to commence the aggregate sentence I intend to impose for the current matters prior to the expiration of his balance of parole sentence. Nevertheless, I am of the view that such additional backdating should be moderate. Accordingly, I intend to commence such aggregate sentence on 3 September 2016.

The offender's subjective circumstances

In this matter where, as mentioned, the offender did not give evidence, nor call any witnesses, I have little information about his subjective circumstances apart from the history contained in Mr Jones' forensic psychology report which is based upon his single assessment of the offender at the MRRC on 24 March last. Further, while Mr Jones was provided with two other psychologists reports, being those of a Mr Ashkar dated 12 August 2008 and a Ms Duffy of 13 August 2013 and referred thereto in his own report, neither of these additional reports were tendered before me. In addition, the Court of Criminal Appeal has made it quite clear that sentencing judges should exercise caution as to the histories contained in such reports in circumstances where an offender has not given evidence.
As stated, the offender was born on either 8 September 1975 or 8 September 1976 and was therefore aged either 39 or 40 at the time of the subject offending. He is now aged either 40 or 41. He apparently has one sister and two brothers with his sister and one brother being older. They are said to continue to support him and his relationship with them is said to be very good.
The offender's mother passed away in 2004 when aged 49. He apparently had a very close relationship with her and she encouraged him, apparently unsuccessfully, to cease his heroine abuse while she was alive. She did not work outside the home. His father is now 74 years of age and has mainly worked in his own businesses. He is currently a market stall owner. The offender described his relationship with his father as "difficult" as his father was "old school" and had high expectations for him. He described his parents own relationship as a happy one and his own childhood as a "good time during which the family moved around a lot and he played football at school and always seemed to make friends, albeit whom Mr Jones describes as "anti-social and delinquent peers." It would thus appear that the offender's upbringing did not involve any particular hardship or social disadvantage so as to give rise to any Bugmy type considerations.
As to his education, after completing infants and primary school, the offender attended Liverpool Boys High where he completed Year 7 before then completing Year 8 at Bonnyrigg High and Year 9 at Ashcroft High. Mr Jones records that the offender left school after having trouble adjusting to Ashcroft High where it would appear that he was suspended on one occasion for fighting.
The offender also told Mr Jones that "learning was difficult for him, and he always felt anxious and worried that he was not clever enough in class."
After leaving school the offender reported a limited employment history including unskilled labouring for about three months and being involved in a mixed business run by his father for about four years. Apparently his lapse into heroin abuse, which I will discuss in a moment, brought the latter to an end.
As to his personal relationships, the offender has had two of significance. The first commenced in 1996 and lasted for some seven to eight years on and off with the periods when they were apart being caused by the offender lapsing back into drug use which also ultimately brought the relationship to an end. The second relationship, which was apparently arranged by his mother when they travelled to Syria where he "found himself betrothed," only lasted about two months and was said to have again broken down due to the offenders relapse into substance abuse. The offender does not have any children.
As to his alcohol and drug usage, the offender told Mr Jones that he commenced "dabbling" with alcohol at age 14 which he mixed with Xanax and Valium apparently for the sedative effect. He also reported that his "last drink was in 2016" but whether this was the result of choice or going into custody or a combination of both is unknown. Mr Jones also records that the offender started smoking cannabis at 14 on a social basis with friends and that by age 16 he was smoking it daily. He also indicated that he ceased all cannabis use in 2008. Again what brought this cessation about is unknown.
At age 21, the offender told Mr Jones that he commenced heroine usage after being introduced to it by a friend and that it was his "drug of choice". After initially smoking it he quickly began injecting it. He further told Mr Jones that he would use it on and off, being abstinent for a period of months and then relapsing "when life stresses and his anxiety became too difficult to manage." Mr Jones records that the offender told him "that in the period of his offending" he was using heroin daily. He also told Mr Jones that since 1990 he has used cocaine, LSD, amphetamines, including methamphetamine, "depending on availability of heroin and with the social group he may be associating with."
The offender further told Mr Jones that "he has felt worried and anxious from an early age, fearing he would not meet his fathers or the families' expectations of him" and that as he matured he became "increasingly convinced (irrationally) he was a failure." After he started to use illicit substances "this confirmed within him his sense of failure" which in turn resulted in increasing anxiety coupled with depression. As to such depression he told Mr Jones that he has had recurrent bouts thereof since the early 1990s and that it and his anxiety increased when he was not consuming drugs. He also reported that he has sought assistance from various general practitioners who prescribed him antidepressants such as Zoloft and anti-anxiety medications such as Xanax and Valium. Whilst he told Mr Jones that these medications were "of some benefit" he also said that "his main choice of alleviation of poor emotional and psychological functioning is to engage in illicit substance abuse as this provides almost immediate relief." He further reported that he has had suicidal ideations since the mid-1990s and attempted suicide in early 2000 by hanging and then again in 2008 by overdosing on sleeping tablets. He also reported that he deliberately became involved in a siege with police at Rose Bay "with the intention of trying to have the police shoot and kill him" but passed out after ingesting an unknown amount of Xanax whereupon police arrested in.
As mentioned, Mr Jones was provided with the psychological reports of Mr Ashkar and Ms Duffy. In the former, which was prepared in 2008 "for the purposes of criminal proceedings at that time," Mr Ashkar diagnosed the offender with "substance dependence" together with symptoms of depression. Mr Ashkar also apparently completed psychometric testing that found that the offender had "intellectual deficits in verbal intelligence, scoring in the low average range." In addition, Mr Jones refers to Mr Ashkar stating that the offender had previously engaged in substance abuse treatment programs in which "he was unsuccessful in achieving abstinence and lapsed into substance abuse." Lastly, Mr Askhar apparently accepted the offenders then desire to cease his substance abuse was "genuine".
Ms Duffy's report from 2012 was apparently prepared for a parole hearing that year. Ms Duffy is said to have identified the offender as having an "inability to manage his life outside of gaol" and "felt pressure from his family to succeed" as well as having a "fear of disappointing them" all which was said to have led to more drug usage "in an attempt to block out his problems." Ms Duffy also apparently indicated that the offender had a desire "to participate in a corrective services drug rehabilitation program or a residential drug rehabilitation program upon his release." As I have recorded, these expressed desires have not been followed through upon despite such programs apparently being made available to the offender.
Mr Jones further records that Ms Duffy's "testing" revealed "extremely severe levels of anxiety and an extreme level of depression" the former of which was "indicative of a more entrenched anxiety disorder which should be investigated and treated."
Mr Jones goes on to state that Ms Duffy "did not provide any diagnosis of a disorder nor provide any treatment recommendation other than to support (the offender's) involvement in a drug rehabilitation program, and support a program that could assist his transition from gaol to the community."
Upon his own examination of the offender, Mr Jones described his effect as "generally flat and restricted consistent with a depressive disorder" although there was no evidence of "sensory, perceptual and more significant cognitive impairment" Mr Jones estimated his level of cognitive functioning as in the low average range.
Upon testing, Mr Jones concluded that the offender was experiencing "a moderate level of anxiety" but a "severe level of depression."
Overall, Mr Jones diagnosed the offender as suffering from a generalised anxiety disorder, a persistent depressive disorder and an opioid use disorder of moderate severity "in a controlled environment".
Mr Jones concluded that the offenders "current offending, and one might suggest the significant past offending, is essentially the result of his drug abuse/dependency" and that having been "released from a period of incarceration he was unable to adjust to returning to society, causing an increase in his underlying anxiety disorder resulting in his reliance upon substance use/abuse to alleviate his anxiety" which in turn led to his need to engage "in property stealing offending behaviour." Mr Jones opined that the two previous psychologists referred to "did not identify the cause or motivation for (the offender's) substance use/abuse" and Mr Jones concluded that the two previous assessments "provided recommendations to treat the symptom of the offending (drug abuse) and not the cause of the offending (anxiety and depression)".
Therefore, Mr Jones would seem to be of the opinion that the offender's failures to be able to complete rehabilitation programs can be explained on the basis that when he commences rehabilitation that includes drug withdrawal, his underlying anxiety remains untreated which causes his relapse into substance abuse. Accordingly, Mr Jones is of the view that what the offender needs is a drug rehabilitation program that addresses such underlying anxiety.
Based upon Mr Jones' report, Mr Fraser at least initially, submitted that there was a causal connection between the offender's anxiety condition, which, as mentioned, is said to have developed at an early age, and his offending. Essentially, he argued that such anxiety condition developed as a result of the offender not being able to live up to his family's expectations, especially those of his father, and noticing around the same time that the illicit drugs he was then introduced to ameliorated this anxiety thereby leading to his addiction thereto. This addiction is then said to have led to his need to commit offences such as those presently under consideration to obtain funds to pay for this addiction. Accordingly, the offender's moral culpability was said to be reduced.
During the course of the argument, Mr Fraser seemed to back away from this submission somewhat and argued that the offender's underlying anxiety condition may be more appropriately taken into account in determining the relevant non-parole period as opposed to any head sentence. In this regard, he made the same submission as to the issue of institutionalisation which I will come to in a moment.
On behalf of the Crown, it was argued that there was no causal connection between the offender's anxiety condition and his offending as it was his choice to take illicit drugs rather than to seek legal treatment for any such condition. The Crown further submitted that whilst the offender's illicit drug usage may explain "why the offences were committed, it does not mitigate the offences that were committed."
Whilst I do accept that the offender has a longstanding underlying anxiety condition, on the basis of the opinion of Mr Jones, especially in circumstances where the offender has not given any evidence before me, I am not prepared to find on the balance of probabilities that there is a causal connection between that condition and the subject offending. In short, I accept the Crown's arguments on this issue. I also note that Mr Jones' views as to such a causal connection are largely based upon a single recent interview with the offender and that his conclusions in this report are not, at least directly, echoed by Mr Ashkar and Ms Duffy.

The offender's prospects of rehabilitation

As to this issue, the Crown submitted that the "offender has had many chances to rehabilitate and he has not chosen to take those chances" and that his "prospects of rehabilitation" are very poor and further, "it is likely that the offender would reoffend."
In relation to this issue, Mr Fraser essentially relied upon the opinion of Mr Jones which would appear to be that without the offender actually undertaking psychological treatment which addresses his underlying anxiety and depressive conditions he presents as a medium to high risk of reoffending and that his prospects of rehabilitation without such treatment are poor, whereas if he engages in such treatment such prospects become "encouraging."
From my perspective, the offender has been referred to various forms of rehabilitation several times over numerous years and has made little or no progress. His quoted desires seem to lead to nothing. In short, the offenders past history is such that I cannot conclude otherwise than that his prospects of rehabilitation are poor and will remain so unless and until he follows through on treatment.

The objective seriousness of the offending

In assuming the objective seriousness of the principle offences I have had regard to the various factors referred to by the Court of Criminal Appeal in R v Ponfield (1999) 48 NSWLR 327. Whilst this decision dealt with s. 112(1) offences it is also relevant to an offence committed contrary to s. 109(2) which is of a like nature. I also note that the Court of Criminal Appeal has recently stated that assessing the objective seriousness of s. 112 offences is not an easy task bearing in mind the breadth of offending which can occur thereunder: see R v Meataui [2016] NSWCCA 42.
Whilst further noting that the seriousness of the "serious indictable offence" committed contrary to s. 112 is a material consideration, with the relevant offence here being one of the least most serious, namely larceny, the offence of break, enter and steal has long been regarded as a serious crime and it is not to be underrated especially where a series of offences are committed: see R v Harris (2007) 171 A Crim R 207.
In the present matter, all five of the principle offences are objectively serious. Further, in all bar the second, the court is asked to take into account serious offences on Form 1's. In short, the 28 offences committed over an approximate period of four months represent a not insignificant crime wave carried out by the offender against, primarily, multiple home owners and residents throughout many suburbs of Sydney. In total, well over $300,000 worth of property was stolen or illegally obtained, much of which was of considerable personal value and a large proportion of which has not been recovered.
Turning to the individual primary offences, the most serious in my view is the third which includes 12 matters on a Form 1. This primary offence is also subject to the highest maximum penalty. The offender entered the subject residence on a number of occasions and moved throughout it, opening and closing various cupboards. The value of the property taken included a motor vehicle valued at over $100,000 which has not been recovered. The 12 form one offences are also serious and a number involved the breaking and entering of further residential premises from which not insignificant amounts of property were taken.
The second most serious principle offence is in my view the second which also involved a very large amount of valuable property being taken, quite a proportion of which was irreplaceable. Further, the female owner could not provide receipts in relation to a large amount of this property which she therefore remains unreimbursed. It is clear that this offence, as did a number of the others, involved the offender selecting the most valuable items from the residence to steal.
The third most serious principle offence in my view is the fifth which involved a not insignificant internal disturbance of the premises as well as the theft of a significant amount of property including items of sentimental value which have not been recovered. The form one offence in relation to this primary offence contains 9 further offences which include several further break and enter type offences all of which are serious within themselves.
The next most serious of primary offence is, in my view, the first. This offence involves the worst actual breaking whereby the front door was essentially destroyed. There was a considerable disturbance inside the premises wherefrom significant valuable items were stolen which must have required repeated incursions into the property. The two form one offences to be taken into account in relation to this primary offence include a further break enter and steal offence.
The next most serious primary offence, in my view, is the fourth in which the breaking only involved the opening of an unlocked sliding door but which led to about $15,000 worth of property being taken, including some of a sentimental value. The family in question also did not have any insurance and where there was a not inconsiderable amount of disturbance to the premises interior. The three form one offences referable to this offence included two further break enter and steal type offences, the first of which involve the theft of a not inconsiderable amount of property including some of sentimental value.

Deterrence

In crimes of this nature, general deterrence is of primary importance. Homeowners and tenants are entitled to be protected from those whom would gain entry to their premises for the purpose of theft. Further, specific deterrence must not be forgotten.

Only appropriate sentence

There was no issue before me that the only appropriate sentence in relation to each of the five principle offences was one of full-time imprisonment. I agree and so find.

My approach

In reaching the aggregate sentence which I will shortly impose, I have taken into account the statutory goalpost reflected in the maximum penalty for each offence. I have likewise taken into account all other matters to which I referred in accordance with the approach of McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51] and have applied an instinctive synthesis.
Due to the number of offences in this sentencing exercise, I also had close regard to the principles of totality as discussed in Pearce v The Queen (1998) 194 CLR 610. These principles require me, after having arrived at the indicative sentences in relation to each principle offence to then stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the total criminality involved; see Postiglione v The Queen (1997) 189 CLR 295 per McHugh J.
In applying such principles to the present case, I have had regard to a number of decisions of the Court of Criminal Appeal in relation to matters involving multiple break and enter type offences including some involving numerous offences of a similar nature on form ones. Such decisions include Regina v Webster [2005] NSWCCA 110; R v Byrne [2005] NSWCCA 141; Watts v Regina [2007] NSWCCA 153; Lewins v R [2007] NSWCCA 189; R v Merrin [2007] NSW CCA 255; Ourdi v R [2009] NSWCCA 46; Mapp v Regina [2010] NSWCCA 269; R v Grover; Grover v R [2013] NSWCCA 149; Morgan v R [2014] NSWCCA 284 and Pham v R [2017] NSWCCA 75.
Whilst these decisions have been of some assistance, it is clear that my task is to arrive at the appropriate aggregate sentence by taking into account all the particular circumstances pertaining to this matter. I have also attempted not to impose a crushing sentence.
I note that Mr Fraser accepted that if I had not chosen to impose an aggregate sentence, a degree of accumulation would have been warranted with respect to each of the principal offences, although he submitted that it would have been "limited". In those circumstances, I agree that a correct application of the principles outlined by Howie J in Cayardi v R (2007) 165 A Crim R 41 would have required that the individual sentenced be accumulated upon each other. In my view, the same principles would have required that such accumulation be not insignificant rather than limited as otherwise the overall sentence would not have reflected the objective seriousness of the offending in this matter.

Special circumstances

As to this issue, Mr Fraser argued that a finding of special circumstances should be made primarily because of the offenders risk of institutionalisation and due to his underlying anxiety state. On the other hand, the Crown submitted that "given the offender's history, there are no special circumstances" and, further, that the statutory ratio would itself provide sufficient time for rehabilitation due to the likely length of the sentence to be imposed. Alternatively, it argued that any variation to the statutory ratio would be slight.
The issue of whether there are special circumstances in this matter is not an easy one to determine. The offender's prospects of rehabilitation are poor unless he has a real change of heart in relation to the undergoing of appropriate treatment. He is not particularly young. This will not be his first time in custody. The aggregate sentence that I intend to impose will be of such a length that the normal statutory ratio will probably provide sufficient time for supervision and to undertake or complete any rehabilitation that the offender may be prepared to undergo.
However, in all the circumstances of this matter, on balance, I am prepared to make a finding of special circumstances on the basis argued for by Mr Fraser, although, as will be seen, my variation of the statutory ratio will not be great.

Indicative sentences

The aggregate sentencing provisions require me to record the term of the sentence which would have been imposed in relation to each of the five principle offences. However, as none of same are subject to a standard non-parole period, I do not need to also record non-parole periods in relation thereto.
In relation to the first principal offence, for which I consider it appropriate to take into account the two offences on the relevant form 1, my starting point is 4 years and six months. After taking the discount for the plea and past assistance, I indicate a sentence of 2 years and 11 months.
In relation to the second principal offence, my starting point is 5 years and 6 months. After the discount for the plea and past assistance, I indicate a sentence of 3 years and 6 months.
In relation to the third principal offence, for which I consider it appropriate to take into account the 12 matters on the relevant form 1, my starting point is 7 years. After the discount for the plea and the past assistance, I indicate a sentence of 4 years and 8 months.
In relation to the fourth principal offence, for which I consider it appropriate to take into account the offences on the relevant form 1, my starting point is 4 years and 3 months. After the discount for the plea and the past assistance, I indicate a sentence of 2 years and 9 months.
In relation to the fifth principal offence, for which I consider it appropriate to take into account the nine offences on the relevant form 1, my starting point is 5 years and 3 months. After the discount for the plea and the past assistance, I indicate a sentence of 3 years and 4 months.

Sentence

The offender is convicted of each of the 5 principle offences.
After the discounts for the plea and the past assistance, I impose an aggregate sentence of 6 years and 6 months commencing on 3 September 2016 and expiring on 2 March 2023. I impose a non-parole period of 4 years and 3 months commencing on 3 September 2016 and expiring on 2 December 2020 when the offender will be eligible for release to parole.
Having imposed a sentence of that length, in my view there are grounds upon which the Drug Court might find the offender is an "eligible convicted offender" as defined in s. 5A of the Drug Court Act. Accordingly, pursuant to section 18B(1)(b) of that Act, I refer him to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order.
I also direct that a copy of the report of Mr Jones dated 29 March 2017 accompany the offender's warrant of commitment.
The backup offence contrary to section 188(1)(b) of the Crimes Act contained on the relevant section 166 certificate is dismissed.

Amendments 08 August 2017 - Amendment to Legislation Cited - Legislation sections added 08 August 2017 - 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: 08 August 2017

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