R v Lawlis

Facts

1. These are set out in an agreed statement, signed by and on behalf of the offender.
2. In November 2020, operation Strike Force Swete was established by police to investigate a number of aggravated break, enter and steal offences involving the theft of high-performance and luxury motor vehicles.

1st incident on 10 November 2020

1. Situated at 5 Jervis Drive Illawong in a two-storey residential dwelling with an attached double-garage. Adam Sandells (the victim) was the owner of three motor vehicles, being: a Husqvarna TE3001 motorcycle (valued at $15K), a Yamaha YZ65 motorcycle (valued at $6K) and a Yamaha TTR50 motorcycle (valued at $2K). All motorcycles were usually parked in the garage.
2. On 8 November 2020, the victim posted on Gumtree an ad for a Hyundai sedan and a different model of Husqvarna to the motorcycle described just a moment ago. Some people responded with interest and the victim supplied his residential address to at least one of them to inspect the vehicle.
3. Beginning very early in the morning on 9 November 2020 and then through the day, several co-offenders (Dillon, Taylor and Grainger) exchanged telephone and text messages in which there were discussions of break and enters. Reference was made to the question of who would be participating. The offender's name was mentioned in that context.
4. At 9:00pm on 10 November 2020, the victim went to bed and two hours later, was joined by his wife. The aforesaid three motorcycles, parked in the garage, were secured either by chain or in the case of the two Yamaha motorcycles, by padlock.
5. That night, the offender, in the company of the co-offenders Taylor, Dillon, Nolan, and Grainger went to the premises. They got there by a Holden motor vehicle driven by Taylor that was registered in the name of Taylor's mother.
6. The offender's call charge mobile phone records placed him in close proximity to 5 Jervis Drive at 2:50am on 10 November.
7. By unknown means, the garage door was damaged, and the group gained entry. Whilst inside, the locks securing the three motorcycles were broken and the motorcycles were wheeled outside. The two Yamaha motorcycles were placed inside the Holden vehicle.
8. At 3:24am, most of the group drove away in the Holden vehicle, with the Husqvarna vehicle being ridden in convoy by one of the group and another member of the group travelling as a pillion passenger. The vehicles were captured on CCTV travelling along Oriana Drive and turning right on to Old Illawarra Road.
9. The serious indictable offence, for the purpose of count 1, was stealing a motor vehicle.

2nd incident on 18 January 2021

1. At 37 Watling Avenue, West Hoxton, there is situated a two-storey residential dwelling with an attached double-car garage. The victim, Jasmin Mantoufeh, and her family resided there. The Victim was the owner of a Volkswagen Golf motor vehicle (valued at $48,000) which was parked in the driveway.
2. At about 2:32am on 18 January 2021, the offender, in the company of co-offenders, Dillon, Hartshorn and Locke arrived at these premises. At about 11:30pm the previous evening, the Victim had gone to bed. All points of entry to the property were closed and locked.
3. The side gate to the property was forced open and the group entered the rear of the property. The lock on the rear flyscreen and glass sliding doors at the rear of the house was damaged and the premises were entered. Two sets of car keys to the Golf vehicle (and another vehicle, the Hyundai Elantra) parked in the driveway were stolen. The offender, however, was not one of those who entered.
4. The group organised to ensure that the other vehicle, which had been behind the Golf vehicle, was moved. That other vehicle was driven out of the premises and parked around the corner. The group's focus was on the Golf vehicle and that vehicle was driven away.
5. Later that day, at about 6:20pm, the Golf vehicle was observed to be parked outside Hassall Grove, near the residence of the co-offender Patterson. Two balaclava-covered males wearing surgical gloves were seen running towards the vehicle and then entered the vehicle. The same witness continued driving for a while; before observing a small hatchback with several girls inside followed by the Golf vehicle. Police suspected that the two men were the co-offenders Locke and Dillon.
6. At 7:50pm, the offender and co-offender Dillon had a telephone call. Dillon informed the offender that he had gotten him some money. Dillon instructed the offender to lie to another co-offender, Hartshorn, and not disclose to the latter that Dillon had stolen the vehicle. Dillon and the offender planned to cut Hartshorn out of receiving a cut of the sale proceeds.
7. The offender was charged on 29 June 2022. Although offered an opportunity to participate in a police interview, he declined.
8. The serious indictable offence, for the purpose of count 2, was larceny.

The offender's explanation

1. The offender explained to Dr Smith, a forensic psychiatrist, that the offending was part of something of a pattern, in which, with a driver, he "was going out .. found a house where cars were, saw money, was getting stuck with them and sometimes being stuck with them and selling them cheaper so I could get on."
2. In a Sentencing Assessment Report (SAR) which the Crown relied upon, the offender explained to the correctives officer that he had been using drugs at the time of the offending and his motive to offend was influenced by his need to fund his drug addiction. In his letter of apology, he also attributed his offending to the need to fund his drug use.

Consideration of objective gravity

1. The Crown noted that although the guideline judgment in R v Ponfield & Ors (1999) 48 NSWLR 327 was, in terms, directed to an offence under s 112(1) of the Crimes Act, subsequent judicial interpretation has suggested that it is relevant to consideration of the objective gravity of offences under s 112(2) (Marshall v R [2007] NSWCCA 24 at 37); and also notes that, in any event, some of the factors are picked up in the list of statutory aggravating factors in s 21A(2) of the CSP Act. I have considered Ponfield.
2. As to Count 1, the Crown argued that the offending featured: 1. A moderate level of pre-planning via text messages to organise transportation, accomplices, allocating shares for the anticipated proceeds of crime from selling the stolen motorcycles, and waiting until the occupants were asleep; 2. Four co-offenders, namely, Evan Taylor, Jake Dillon, Kyan Nolan and Timothy Grainger, who arrived in a Silver Holden Captiva driven by Evan Taylor; 3. A moderate level of sophistication in identifying items of interest via Gumtree advertisements, contacting the victim, portraying as a legitimate buyer online, and inducing the victim to provide his residential address for the purpose of viewing the vehicles; and 4. Property damage caused to the victim's closed garage door by unknown means, and cutting the locks secured to the three motorcycles.
3. As to count 2, the Crown argued that the offending featured: 1. A moderate level of preplanning via text messages to organise transportation, accomplices and splitting the anticipated proceeds of crime from selling the stolen motorcycles; 2. Four co-offenders, namely, Evan Taylor, Jake Dillon, Nathan Hartshorn and Zackary Locke; and 3. Property damage where a screwdriver or similar tool was used to forcibly open the side gate to the property. An unknown co-offender then used the screwdriver (or similar tool) to damage the lock on the rear flyscreen and glass sliding doors of the premises.
4. For both counts, the Crown submitted that the offending fell just below the mid-range.
5. I do not consider it overtly productive to make finely nuanced findings as to the objective gravity of the two primary counts; even if there were differences, as to the number of vehicles or the respective values of the vehicles stolen. It can be accepted that the economic value of the vehicle seized for count 2 exceeded the value of the vehicles seized for count 1. But the modus operandi of the offenders was relevantly similar.
6. For his part, the offender's submissions focussed on the offender's role: it was submitted that although there was limited information upon which the Court could assess the conduct of each offender, it could still be accepted that he was not the principal offender but was rather a recruit. He did not deny, however, that he was an active participant in the offending and was present at the offending. The offender's lawyers did not express any particular view as to where the offending in each instance fell in the scale.
7. Arguably, for count 1, Dillon, Taylor and Grainger appeared more 'active' than the offender in the enterprise, based upon the phone and text contacts. Taylor's car (or more precisely, his mother's car) was utilised. There was no telephone intercept material linked to count 2. Beyond this, I think that the information is so tenuous as to each offender's respective roles as to make it not possible for me to distinguish the offender's role from his co-offenders even in the limited way that his lawyers invited me to do. This finding will have implications for what I say about the application of the parity principle later in these remarks.
8. As the Crown correctly identifies there was plainly a moderate level of preplanning; if not necessarily of a very sophisticated kind. This was evident through the messages between the co-offenders within the groups, the organisation of implements to break locks and organise vehicles for the collection of the vehicles anticipated to be stolen. There was some damage to the property, for example the locks, but that was relatively minor. There were no guns or knives or anything (other than the implements used in the break in). The offender was not out on conditional liberty or bail at the dates of the offences. Both primary offences occurred over a short period of time. There were not repeated incursions into the same properties.
9. I respectfully agree with the Crown that the offending for counts 1 and 2 fell below the mid-range, but not at the lowest end.

Statutory aggravating factors

1. The Crown identified, and the offender conceded, the application of the following factors (applicable to both offences): 1. The offences being committed in company (s 21A(2)(e)); 2. The offences being committed in the homes of the victims (s 21A(2)(eb)); and 3. The offences being committed for financial gain (s 21A(2)(o)).
2. The parties disputed the application of a further suggested factor being that the offending was part of a planned or organised criminal activity. On this point, the offender acknowledged that there was, inherently, a level of planning, but argued that it was no such as to be any higher than would be contemplated for offending of this kind: there was no sophisticated enterprise, featuring stake outs, lookouts, or disguises.
3. On this dispute, I agree with the offender.
4. The offender's solicitor alluded also to the offender's history of past convictions falling under s 21A. However, I will deal with this in his subjective case momentarily.

The Offender's subjective case

1. The offender, who is now 25 years old, was 21 years of age at the date of the offending. The offender remains young and that fact alone usually renders considerations of general deterrence and retribution of less significance and elevates the significance of rehabilitation; the law recognises the potential for cognitive, emotional and of physiological immaturity of a young person contributing to offending (KT v R [2008] NSWCCA 51 at [49]); even without the particular health concerns affecting an offender. He is an Indigenous or First Nations Australian.
2. In this hearing, the offender tendered a letter of apology, a medico-legal report of Dr Sidorov and a psychiatric report of Dr Calum Smith. Dr Sidorov's report was prepared in connection with the offender's apparent civil claim for compensation. It is from Dr Smith's report that most of the background below is taken.
3. The offender grew up in Doonside in Sydney West. He has seven siblings. He grew up at a time missing his father, who had been jailed. After a reasonable start in primary school, trouble occurred when he was in year 5 and got into a fight. From early senior school, he engaged in acts of truancy and after becoming involved in relatively petty crime, he became subject to juvenile detention, probably for fighting, when he was the age of 14 or 15. From there, he was sexually abused by one of the officers. He later became depressed and was subject to flashbacks. Soon, he descended into drug addiction and crime. The offender told Dr Smith that, once out of jail, he had begun to see drug and alcohol and psychology counselling. He tried certain medications but experienced the side-effect of migraines. He told Dr Smith that recently, his partner (of 7 years) had a 4-month old and he had been 'clean'. Although he had bad anxiety, he had used the skills learned from his psychologist to manage this condition. He also indicated that he was motivated by the need to be a role model for his daughter.
4. The offender left school at Year 10. He had had troubles with his learning.
5. Dr Smith noted the offender reported that he had started taking cannabis from about the age of 15 or 16. From there, he took to ice. The offender reported the cycle of starving himself to save money before going out with his associates "walking the streets, opening cars, doing crime" in order to get both cannabis and ice. The drugs, the offender observed, "blocked things out". The corrections officer who authored the SAR noted the offender's report that at the time of the offending, he had been using ice, and marijuana daily and cocaine, whenever he could afford it.
6. Dr Smith diagnosed the offender with a substance use disorder; and considered that he was a victim of complex trauma. He considered, further, that his drug dependence motivated his criminality. Generally, the offender was likely to have been intoxicated at the time of the offending by Crystal meth.
7. Dr Sidorov considered that the offender met diagnoses of an anti-social personality disorder and amphetamine use disorder; as well as symptoms of Post Traumatic Stress Disorder. Dr Sidorov also reported an intellectual disability.
8. Based on this material, the offender's lawyers argued that the combination of his long-standing drug addiction and lifelong and complex mental health conditions, the offender had little control over the impact of those conditions in the period leading up to the offending.
9. In the guideline judgment in Ponfield, the Court of Criminal Appeal noted that a drug addiction for offences of this kind, whilst a relevant circumstance, is not a mitigating factor, per se. The offender invoked principles from Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1, per McClellan CJ at CL at [177]. I agree. I would add that the findings that I am about to make could also be reached by application of Bugmy principles (Bugmy v The Queen (2013) 249 CLR 571). This case is not one, in my view, of an offender's exercise of free choice in entering into drugs before becoming an addict. It was a misguided attempt to cope with his condition and with his severely traumatic experiences. In turn, it contributed to certain disorders affecting and impairing the offender's executive functioning. I accept on the probabilities, and not looking at the matter too finely, that there is a connection between his conditions and his offending which serves to reduce his moral culpability and makes the offender less than a fully appropriate vehicle for general and specific deterrence. Acknowledging these matters, and particularly in view of the circumstance that the offending occurred when the offender was actually intoxicated at the time (which is not itself a mitigating factor), on the other hand, the concern of his absence of control does, however, bring to bear a concern of the need for community protection. That particular factor is, however, affected by certain aspects of his subjective case to which I return later in these remarks.
10. His history discloses 10 prior convictions. He has previously been incarcerated by the Campbelltown Local Court in December 2021 for like offending to the two counts here. The Crown also adverted to his custodial history; featuring three infractions since 2021. The Crown submitted, and the offender did not dispute, that his record disentitles him to leniency and I so find.
11. It was further noted in the SAR that the offender took responsibility for his offending and conspicuously, did not blame the co-offenders. Further, he expressed sentiments of remorse.
12. These were echoed in the offender's letter of apology. In that letter, he specifically alluded to his concern about harming the victims. I find that he is remorseful.
13. To his credit, when alluding to some past difficulties in life, the offender observed that he did not want that (or them) to shape the rest of his life. Further, he spoke of his determination to build a life for his family.
14. As to his prospects of rehabilitation, it was noted by the community corrections officer and also Dr Smith that his partner of 7 years (who has a steady job working with children), and that the offender had a positive relationship with his immediate family. He was employed with his brother-in-law in the construction industry. In the sentence hearing, the offender also relied upon a letter from the director of SKT Projects Pty Ltd indicating the availability to the offender of a position of employment as a truck driver. Counsel for the offender emphasised that this was another indicator of a pro-social network. Further, The corrections officer laid out a supervision plan. Dr Smith opined that the offender's post-offending conduct and attitudes represented 'something of a turnaround'. He had shown initiative in getting himself a mental health plan and became abstinence. The key to his rehabilitation was to remain abstinent.
15. Based upon his remorse and the positive reported response to his supervision since his release, the Crown fairly characterised the offender's prospects of rehabilitation as being good.
16. As to the likelihood of re-offending, the community corrections officer assessed the offender as being at a 'medium/low' risk of re-offending according to the Revised (LSI-R) scale. The offender's lawyers submitted that his prospects of re-offending were now at the lower end; although not necessarily a low or lowest end. I accept that submission.
17. Counsel for the offender did not suggest that the offender's bail conditions amounted to a form of "quasi-custody".

Parity

1. The Crown acknowledged that the application of the parity principle is attended by some complexity, given the circumstances that some of the five co-offenders were sentenced for different offences, and/or were sentenced by different judicial officers at different times.
2. At any rate, the Crown ventured observations about all 5 co-offenders and how the offender's circumstances of his own offending and personal circumstances compared.
3. As to the co-offender, Dillon, who was sentenced for an aggregate term of 5 years and 4 months and a NPP of 3 years and 1 month, the Crown pointed out that Dillon was sentenced for 15 principal charges and 18 additional charges. This, it was argued, practically necessitated a significant custodial sentence. But, the Crown also pointed out that the subjective cases of Dillon and the offender were comparable; at least with respect to the factors of age and prior convictions. As to the offence committed at 5 Jervis Drive, Dillon received an indicative sentence of 2 years' imprisonment with an indicative NPP 1 year and 2 months' imprisonment.
4. As to the co-offender Taylor, who was sentenced to a term of imprisonment of 12 months, with a NPP of 6 months, the Crown submitted that the subjective case of the offender was comparable. However, Taylor was sentenced for one offence - not 5, as the offender is to be sentenced for.
5. By its written submissions, the Crown identified Zackary Locke as a co-offender. As to the co-offender Locke, who was sentenced to an aggregate term of 6 years and 6 months, and a NPP of 3 years and 5 months, the Crown qualified its submissions by noting that it had not received the sentencing remarks for the former. Nevertheless, the Crown observed that although of similar age to the offender, Locke's prior criminal history was more severe. Further, the Crown acknowledged that Locke was sentenced for 16 principal offences with an additional 4 offences. At the sentence hearing, Mr Crown indicated Locke was not sentenced for any of the offences for which the offender is to be sentenced.
6. As to the co-offender Hartshorn, who was sentenced for an aggregate term of 4 years with a NPP of 2 years, the Crown submitted that both the offender's subjective case and objective criminality were comparable. The Crown referred me to the indicative sentences of Hartshorn for the s 112(2) offence at 37 Wattling Avenue (identified as 3 years' imprisonment) and the stealing motor vehicle offence (identified as 18 months). Specifically, it submitted that sentences that are alike should be imposed.
7. Finally, as to the co-offender Patterson, who was sentenced to an aggregate sentence of 3 years imprisonment (to be served by ICO), the Crown submitted that the offender's subjective case was comparable. Patterson was sentenced for 3 principal offences with an additional 3 offences reflected on a Form 1. Acknowledging that Patterson was sentenced for several different offences, the Crown nevertheless submitted that the overall level of criminality was similar to the offender.
8. The offender's Counsel adopted the submissions of the Crown as to parity.

Consideration

1. I have considered the sentencing remarks of the respective co-offenders and the Crown's submissions. I accept the Crown's submission that the positions of the co-offenders Dillon and Locke can readily be put aside for the purposes of meaningful comparison, given the sheer volume of the offences committed by those co-offenders.
2. The co-offender Taylor was sentenced for a single offence; much less in quantity than the offender.
3. This leaves the co-offenders Hartshorn and Patterson as arguably presenting the closest comparison. In Patterson's case however, the offending involved different incidents to that committed by the offender. Unlike this offender, Patterson also received the benefit of a 25% discount on his guilty pleas.
4. The co-offender Hartshorn also received a 25% discount on his pleas. He, like the offender, was involved in the incident at West Hoxton. I agree with the Crown that his subjective background was relevantly similar to the offender, including being a victim of sexual assault whilst in juvenile detention. Hartshorn had the added trauma of a death of a former partner. His culpability was also found to be reduced because of Bugmy principles. He was also young at the dates of the offending, had shown insight and had reasonable prospects of rehabilitation and even a more favourable criminal history than the offender. Hartshorn was subject to one more principal offence than the offender, but less offences attached to a s 166 certificate.

Instinctive Synthesis

1. I have noted the maximum penalties and standard non-parole periods (as applicable) for all of the offences. I have taken into account the sometimes conflicting considerations in s 3A. As the offender's lawyers submitted, the nature of the offending is such that considerations of general deterrence and denunciation weigh heavily in the exercise, even if moderated on account of the offender's mental condition. The offender himself acknowledged that his record was such as to also require a sentence which accords weight to personal deterrence. I agree with this but would also add that for offences of this kind, further significant weight should be accorded to acknowledge the harm to the victims and also to protect the community (notwithstanding promising signs of the offender's rehabilitation). Both parties also emphasised that in the circumstances of this offender, including his relatively young age, a sentence promoting the offender's rehabilitation was also significant. I accept this last submission.
2. The parties agreed that the s 5(1) threshold has been crossed. I agree.
3. The offender submitted that the term of imprisonment longer than 3 years would not be warranted. If accepted, this would mean that he would qualify for such term be served by an order for intensive correction. Counsel for the offender asserted that particular sentencing option would be in the community's long term best interests; protecting the community and also assisting the offender to maintain his abstinence and rehabilitation. The offender submitted that appropriate conditions could include a supervision plan, as contemplated in the SAR; as well as rehabilitation condition intended to continue his engagement with the psychologist.

Indicative sentences

1. Taking into account the 5% deduction for guilty pleas, these are as follows: Count 1: 1 year and 9 months (11 months NPP) Count 2: 1 year and 11 months (12 months NPP) Seq 2: 7 months Seq 3: 7 months Seq 6: 8 months Seq 10: 11 months

Totality

1. In the offender's case, there were plainly two incidents, separated in time by two months. Both are very serious offences. Despite a certain commonality in the way in which the offending occurred, and the same motivation in the offender, there should be a not insubstantial allowance for cumulation in sentences for counts 1 and 2. On the other hand, there should be substantial concurrence between the offences attached on the s 166 certificate for the primary offences, respectively: that is sequences 2 and 3 to count 1 and sequences 6 and 10 to count 2. The offences on the s 166 certificate represent, in essence, the fruits of the break and entering offences. However, some level of accumulation is warranted in the stealing offences to recognise the intrinsic value of each vehicle to the owner. As a final check, the aggregate term I propose is intended to represent my assessment of the total criminality overall.
2. In my view the appropriate term of imprisonment is 3 years and 4 months.
3. The offender has not spent any period in custody solely referable to these offences.
4. Given the quite positive view formed about the offender's rehabilitation prospects, I find special circumstances.

Orders

1. Mr Lawlis, please stand.
2. On the two counts of aggravated break and enter and committing a serious indictable offence, and sequences 2, 3, 6 and 10, you are convicted.
3. I sentence you, in the aggregate to a term of imprisonment of 3 years and 4 months commence on 12 September 2024 and ending on 11 January 2028. The non-parole period is 1 year and 8 months and expires on 11 May 2026; after which you will be eligible for release on parole.

Amendments 13 September 2024 - Paragraph [5]: Addition of 'or calibrated' 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: 13 September 2024