R v Milligan

The facts

1. I turn then to the facts which are agreed. In relation to the break and enter and steal offence, the offences on that Form 1, and the steal from the dwelling house offence, the facts are as follows.
2. The victim of the break and enter offence, Jing Li, resides in Roseberry, in an apartment complex. The apartment is on the ground level and has a secured courtyard that is accessible from the street. Access to the courtyard is through a locked gate.
3. At about 10.20am on 4 August, a Saturday, 2018, the owner locked and secured her front door and her rear screen door, leaving the rear sliding door open. She then left the house for the day.
4. Sometime after 10.20am the offender entered Ms Li's unit. He searched the unit and left with the following items which were owned by her: A Lenovo laptop computer worth $2,000; a purple amethyst pendant worth $2,100; an opal attached to a silver chain worth $200; a Chinese passport; a student card, a National Australia Bank bankcard.
5. When Ms Li arrived home at about 7.20pm that day, she observed that someone had been in her unit. It was clear that someone had gone through her belongings because her property was lying all over the floor and the cupboards were open. She also observed that the door leading to the rear courtyard was open and damaged. She contacted the police.
6. Police attended and located a fingerprint that matched the offender on the interior-side of the rear security door. In terms of five of the offences of dishonestly obtain financial advantage by deception on the Form 1, they each relate to the use of the NAB credit card on separate occasions on 4 August 2018 to obtain relatively small amounts of property. I will not read the items onto the record, they are set out in the agreed statement of facts.
7. In terms of the steal from dwelling house offence, Ms Emma Sullivan in Waterloo, in an apartment. The apartment is located within a large multi-story apartment complex with entry and exit points from on two different streets.
8. Ms Sullivan's apartment is on the ground floor of the complex and has a private courtyard. At 2.15pm on Saturday 4 August she left her house for the afternoon and when she left, her silver commuter bicycle was in the private courtyard which was locked from the outside.
9. Sometime after 2.15pm the offender entered Ms Sullivan's courtyard. He then attempted to gain entry to the apartment by using a pot plant to break the glass in the rear door. He was unsuccessful in doing so. He then took Ms Sullivan's bicycle and left the courtyard. The rear gate was left open.
10. At about 7.15pm on 4 August Ms Sullivan returned home and noticed that the rear courtyard gate was open. She noticed that one of the pot plants had been moved and that the glass in the rear door was scratched. She reported the matter to the police the following day, and when they attended they located a fingerprint on the glass rear door to the apartment which matched that of the offender.
11. On the Form 1 there is an enter vehicle without consent of owner/occupier, and a possess prohibited drug, which I mentioned earlier. The drug was a small quantity of .03 of a gram and the enter vehicle without consent related to the offender being found it a white Toyota Landcruiser by the police on 18 August 2018.
12. In terms of the facts concerning the offence under s 114/115 and the assault occasioning actual bodily harm, there is a separate agreed facts document dealing with those offences. The following is taken from that document.
13. At about 9pm on 11 August last year the offender and a co‑accused entered the City Super deli located in the Pavilion Arcade at 580 George Street, Sydney. They apparently were both noticed by staff when they walked through the store and the store was busy with customers.
14. The store is adjoined by two other stores, a Koban Korean takeaway and the S Bread store. All three stores are separate businesses, they all share a steel screen door, which is drawn across the front of them when they are closed.
15. At the time of the offences the S Bread store and the Koban Korean store were closed, with the steel curtain drawn across the front of them. At about 9.05pm the offender and the co-accused walked towards the front of the City Super deli. The co-accused left the store and walked south along the arcade.
16. The offender walked towards the front of the store, and rather than leaving, he hid behind the steel curtain at the entrance to the Koban Korean store. The offender then walked behind the steel curtain and climbed over the counter into the S Bread store, leaving a fingerprint on the interior-side of the counter top.
17. Once inside the store, he went behind the counter area and commenced to search through the office area. He was concealed by the steel curtain and stayed there for about three to four minutes.
18. In terms of the larceny offences on the Form 1, while in this area the offender took a calico bag from one of the shelves and placed a coin purse containing approximately $35 in petty cash as well as two chequebooks into the bag. He left the area, climbed out of the store the same way he had entered it. That was captured on the CCTV footage.
19. In terms of the offence under s 114/115 of the Crimes Act, the CCTV footage showed that the offender was in possession of a large knife which he had hidden in the back of his pants. As he was leaving the store he was noticed by a staff member of the City Super deli, a Handi Ng, who approached him. The offender ran from the store with Ng chasing him.
20. Ng caught up to the offender just outside the City Super deli at which point they began to wrestle. Two other City Super deli staff, Winnie Liu and Selly Wijaya, ran towards the offender. Liu attempted to help Ng detain the offender, resulting in her becoming involved in the wrestle. As a result of the wrestle, Ng sustained a cut on his right forearm.
21. During the wrestle the offender's shirt was pulled off along with a brown satchel that he was carrying. His shoes also came off. He lost possession of the knife he was concealing in his pants.
22. During the wrestle the co-accused approached the group and attempted to intervene and ultimately attempted to pull the offender away. The fight continued until both the offender and the co-accused were able to run from the scene. At the time the arcade was full of members of the public.
23. Once they had escaped the fight the offender and the co-accused ran north along the arcade into the Town Hall Railway concourse. All the items that were stolen by the offender in this incident were retrieved. The investigating detectives obtained the CCTV footage and ultimately the offender was identified.

Assessment of objective seriousness

1. I turn then to my assessment of the objective seriousness of the offences. In relation to the objective seriousness of the break and enter offence, 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 The Queen [2017] NSWCCA 308. I also need to be careful to only consider the objective factors discussed in Ponfield when assessing the objective seriousness of the offence.
2. The victim's property inside the residential unit had been left lying all over the floor of her apartment, so there had been some ransacking of it. There was also damage caused to the rear door. The property taken from the premises was modest in value although no doubt the items were important to the owner.
3. It does not appear that the property taken was recovered. The unit was entered by the offender during the day, and it does not appear there was any significant planning for the offence.
4. I assess the objective seriousness of the break, enter and steal offences as towards the bottom of the range but not at the very bottom of objective seriousness.
5. In relation to the steal property from a dwelling house offence, there was limited actual damage to the premises, being that the glass in the rear door was scratched. It appears the bicycle was not recovered, however I do not know its monitory value, although no doubt it was important to the victim. I assess the objective seriousness of this offence as being towards the lower end of the range.
6. In relation to the offence under s 114/115 of the Crimes Act, the knife is described in the facts as "large" and it was hidden in the back of the offender's pants. Clearly he was intending, it would seem, to commit a larceny at that time. There is no suggestion that at the time that the larceny occurred, however, anyone at the store was aware that the offender had possession of the knife. I assess the objective seriousness of this offence as being below a notional midrange offence, but not at the lowest end of the range.
7. In relation to the assault occasioning actual bodily harm offence, the injury involved was a cut to the victim's arm. There is nothing in the facts to explain specifically how the cut occurred apart from the fact that it was during a wrestle with the victim who was trying to detain the offender in relation it would seem to the larceny offence that had been committed.
8. There is nothing to suggest that the cut was a significant one. I assess the objective seriousness of this offence as towards the lower end of the range.

Subjective case

1. I turn then to the offender's subjective case. The offender is currently 35 years of age.

Criminal history

1. He has an extensive criminal history commencing when he was a juvenile. He has a number of break and enter offences on his record both as a juvenile and as an adult.
2. In 2015 in the Local Court he received a sentence of imprisonment for an armed with intent offence. There are other offences on his record for which he has received sentences of fulltime custody.
3. In particular, on 10 January 2017 in this Court, after an appeal from the Local Court, he received a sentence of imprisonment for a take and drive conveyance without consent of owner offence and an offence of break, enter and steal of 21 months with a non-parole period of 12 months. The sentence commenced on 23 November 2016 and expired on 22 August 2018.
4. The offences that I am to sentence him for were all committed while on parole in relation to that sentence, although in fact his parole had been revoked on 8 August 2018, for failure to comply with the conditions of his parole. Two breach of parole reports in that regard are before me.
5. The fact he committed all the offences I am to sentence him for while on parole is an aggravating factor under s 21A of the Crimes Act.
6. The Crown submitted that his criminal record was such that it too was an aggravating factor under s 21A in accordance with the principles discussed in Veen (No 2) (1988) 164 CLR 465 and R v McNaughton (2006) 66 NSWLR 566.
7. I consider that the offender's record falls just short of being an aggravating factor under the Crime (Sentencing Procedure) Act but clearly it disentitles him to leniency here.

Custodial history

1. In terms of his custodial history, he was arrested in relation to these offences on 18 August 2018 and was returned to custody where he has remained.
2. Between 18 August 2018 and 1 June 2019, he was serving the balance of parole for the sentence concerning the take and drive conveyance without consent of owner offence and the offence of break, enter and steal I mentioned earlier.
3. On 17 April 2019 in the Local Court he received a sentence for an offence of take and drive conveyance without owner's consent, which occurred on 9 August 2018. The sentence he received was one of 20 months, with a non-parole period of 15 months, to commence on 18 August 2018. The non‑parole period in relation to that sentence expires on 17 November 2019.
4. Having regard to the fact he has been in custody since 18 August 2018 and having regard to principles of totality, I propose to commence the sentence I impose from 17 May 2019.

Psychological report

1. There was tendered on the offender's behalf a psychological report dated 30 May 2019 prepared by Ms Megan Godbee. I base my following remarks concerning the offender's subjective case on that report. The offender did not give evidence, however, I have had regard to that fact in assessing the information contained in the psychologist's report.

Family background

1. In terms of his family background the offender is the youngest of three children and grew up in Bathurst. He reported to the psychologist that his childhood "seemed pretty normal" however there are several features of his childhood that suggest that is not an appropriate description of his earlier life.
2. The offender witnessed some violence from his father to his mother, which he described as being "scary to see". His parents separated when the offender was 8 years of age, and he alternated living between them every few years.
3. He suggested to the psychologist that "they couldn't handle him" because he "kept fucking up". The offender described his childhood relationship with his mother in positive terms. He described his relationship with his father as "all right". He stated that his father was the primary disciplinarian and that the typical punishment involved being hit with a belt.
4. The offender left home at the age of 14 after being expelled from school. Since leaving home the offender has resided primarily in custody but has couch surfed or lived on the streets when not in custody.
5. The psychologist considered that in his childhood the offender lacked a stable, secure and protective caregiver from whom to learn skills for managing emotions and behaviours.
6. The offender has one daughter from a relationship when he was approximately 25 years of age. He reported that the child was removed from his care and that of his girlfriend by Family and Community Services at the age of 10 months. The offender is not in contact with his daughter at this point in time.

Education and employment history

1. In terms of his education and employment history, he attended school until Year 7. He commenced a TAFE course thereafter but that was not completed. He reported that when in school due to misbehaviour he was only permitted to attend the first hour of classes, after which point his older sister would walk him home.
2. He did commence an apprenticeship but has had no other employment. I note the offender has had a limited opportunity for employment given he has only spent about 20 months in the community during his adult life.
3. He does not have plans for employment upon release and expressed to the psychologist that he does not have plans for obtaining housing, clothing or identification documentation.

Substance use

1. In terms of his substance use, he reported to the psychologist that he commenced consuming alcohol at 13. He reported consuming up to two bottles of spirits a day from the age of 13 to 18. The offender noted that having been mostly in custody since that time, he has not engaged in regular alcohol consumption since.
2. The offender commenced to use cannabis at around age 12. He reported smoking cannabis all day, every day, until he was 20 years of age. He said he commenced using up to one gram of methylamphetamine and up to two points of heroin per day in his mid-teens. He has also used other drugs as recorded in the psychologist's report.
3. He told the psychologist he used illicit substances during previous prison sentences although he has not used since his most recent arrest. He reported to the psychologist undertaking several psycho-educational drug and alcohol programs in custody, but has never completed an intensive rehabilitation program.
4. The offender told the psychologist that he was previously referred to complete the compulsory drug treatment correctional centre program in Parklea but was deemed ineligible. It is not clear to me precisely why he was ineligible. He told the psychologist all of his offending has been to obtain drugs or no doubt money to obtain them.

Psychological/psychiatric history

1. In terms of his psychological/psychiatric history, he was diagnosed with depression according to him by a Justice Health doctor in 2004 but has not otherwise seen a mental health professional. According to the psychologist, he did not endorse any current indicators of mental health difficulties and denied any suicidal planning or intent.

Attitude to the offending

1. In terms of his attitude to the offence: He indicated to the psychologist that he was unsure how he felt about his offending behaviour, stating that he would not have done it if he could have avoided it. The offender started to the psychologist "I don't have a choice, well, I sort of do".

The future and risk of re-offending

1. In terms of the future, and risk of reoffending, he described himself to the psychologist as being institutionalised and this view was shared by her. The offender indicated that whenever he encountered stress in the community he thinks "I would rather just go back to gaol".
2. The psychologist reported that he has no stable accommodation in the community; he does not see the point in engaging with parole within the community. He is unable to apply for support because he has no identification documentation and has difficulty getting a bank account because he has defrauded most banks.
3. The content of the psychologist's report is troubling given the offender's frequent contact with the criminal justice system and his expressed attitudes about the future. His criminal history as a juvenile is consistent with the content of the psychologist's report and is consistent with a socially disadvantaged upbringing.
4. I have therefore had regard to the relevance of social disadvantage to sentencing as explained by the High Court in Bugmy v The Queen (2013) 249 CLR 571.
5. I have also had some limited regard to the fact that the offences were committed to essentially fund his drug addiction. He is now in his 30s and has had a number of opportunities to do something about his addiction. The breach of parole reports that are before me suggests he has not shown any real commitment to properly engaging with Community Corrections when in the community.

Sentence

1. I noted earlier that the pleas of guilty were entered in the Local Court and I will allow him a 25% discount of his sentence to reflect the utilitarian value of those pleas. The earlier pleas of guilty reflect some remorse on his part it seems to me, but apart from the early pleas, there is no evidence of remorse.
2. Given his criminal record, the fact the offences were committed on parole, the fact he has failed in the past to take steps to properly engage in drug rehabilitation, and statements he made to the psychologist, his prospects of rehabilitation are poor.
3. Given his criminal history, which has involved little time in the community as an adult, and the content of the psychological report, I consider he is very likely to now be institutionalised, and if he is not now, risks becoming so during the course of the sentence I will impose today.
4. That, together with the fact that the sentence I will impose will be partially accumulated on a sentence he received for an offence that occurred on 9 August 2018, a date which is between the dates of the offences I am to sentence him for, I consider that a finding of special circumstances should be made.
5. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender's conduct, recognising the harm done to the victims and the community and the offender's rehabilitation.
6. Break, enter and steal offences, stealing from a dwelling house, and assault occasioning actual bodily harm offences, are very prevalent offences in our community, regrettably. People should feel free to go about their lives without the fear that they will be broken into and stolen from or assaulted.
7. Clearly the sentence I impose must be one that has a general deterrence component of it, along with, given the offender's record, a component reflecting personal deterrence. The sentence must be such as to deter this offender and others from engaging in such conduct.
8. The maximum penalty has been taken into account as a legislative guidepost.
9. I will impose, as I say, an aggregate sentence. If I had not used the aggregate sentencing provisions there clearly would have been some accumulation of the sentences given the number of offences and the number of different victims.
10. 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. Mr Milligan would you please stand?

Orders

1. Mr Milligan, you are formally convicted of the four offences to which you have pleaded guilty. You will hear me read out some sentences which are what we call indicative sentences. You do not just receive those sentences. Your total sentence is not arrived at simply by adding them all up. You will then hear me announce what is an aggregate sentence, and that is the sentence you receive. I will tell you when it commences and when it finishes.
2. Turning then to recording the indicative sentences: on the break, enter and steal offence, having regard to the matters on the Form 1, there is an indicative sentence of three years imprisonment. On the steal property from a dwelling house offence there is an indicative sentence of 18 months imprisonment. On the s 114/115, armed with intent offence, having regard to the applicable Form 1, an indicative sentence of three years imprisonment. On the assault occasioning actually bodily harm offence, having regard to the applicable Form 1 offence, there is an indicative sentence of 14 months imprisonment.
3. I impose an aggregate sentence of five years imprisonment, with an aggregate non-parole period of three years and four months. That sentence dates from 17 May 2019. The sentence expires on 16 May 2024. The non‑parole period expires on 16 September 2022.
4. The earliest date you are eligible to be released to parole is the date of the expiry of the non-parole period, which is 16 September 2022. 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.
5. I refer the offender under s 18B of the Drug Court Act to the Drug Court for that Court to determine whether he should be the subject of a compulsory drug treatment order. I note the offences on the s 166 certificate are on a Form 1. It is clear that all those offences on the 166 certificate are on the Form 1. It is five years with three years and four months, starting from 17 May 2019.

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