R v Neal

District Court of NSW|2022-05-13

Remarks on sentence

The offender who was born in November 1983 is to be sentenced in respect of the following offences: 1. Aggravated break and enter and commit serious indictable offence (sequence 6). This is an offence pursuant to s 112(2) of the Crimes Act 1900, to which the offender and his co-offender McCutchen pleaded guilty. The maximum penalty prescribed is 20 years imprisonment and there is a standard non-parole period of 5 years imprisonment.
In addition, the offender is to be sentenced on the following four counts on an Indictment to which he pleaded not guilty. Following a Judge alone trial that commenced 9 February 2022, the offender was found guilty on each of the four counts on 18 February 2022: 1. Count 1 - offence of robbery pursuant to s 94(a) of the Crimes Act 1900. The maximum penalty prescribed is 14 years imprisonment and there is no standard non-parole period. 2. Count 2 - aggravated break and enter and commit serious indictable offence pursuant to s 112(2) of the Crimes Act 1900. The maximum penalty prescribed is 20 years imprisonment and there is a standard non-parole period of 5 years imprisonment. 3. Count 3 - supply prohibited drug greater than indictable and less than commercial quantity pursuant to s 25(1) of the Drug Misuse & Trafficking Act 1985 ("DMTA"). The maximum penalty prescribed is 15 years imprisonment and/or 2,000 penalty units. There is no standard non-parole period prescribed. 4. Count 4 - break and enter house and steal goods of a value less than $60,000 pursuant to s 112(1)(a) of the Crimes Act 1900. The maximum penalty prescribed is 14 years imprisonment and there is no standard non-parole period prescribed. 5. In addition, the following related offences are set out in a s 166 certificate: Seq 7 - Knowingly be carried in conveyance, pursuant to s 154A(1)(b) of the Crimes Act 1900. Seq 8 and 9 - Drive whilst disqualified, pursuant to s 54(1)(a) of the Road Transport Act 2013 (two offences). Seq 10 - Goods in custody pursuant to s 527C(1)(c) of the Crimes Act 1900.

The sentence hearing

The sentence hearing took place on 13 May 2022. The Crown sentence summary became Exhibit A. It included a statement of agreed facts in respect of the offence to which the offender had pleaded guilty, namely, aggravated break and enter and commit serious indictable offence, with the co-offender McCutchen.
The facts may be summarised as follows. At an unknown time after 9.30pm on 7 October 2018, a Skoda motor vehicle registration number NBP-48K was stolen by person or persons unknown from the suburb of Lapstone. At 3.04am on 8 October 2018, the offender Neal approached the front of the Blue Mountains Running Co Store and looked inside for a few seconds before walking away.
At approximately 3.42am on 8 October 2018, the offender and co-offender arrived in the black Skoda motor vehicle registration NBP-48K outside the shop premises referred to above. This was the offence of being carried in conveyance taken without consent of owner, pursuant to s 154A(1)(b) of the Crimes Act 1900 on the s 166 certificate.
The offenders got out of the motor vehicle and the offender forced the front door of the store open with a small crowbar, causing damage to the door frame. The offenders then entered the store, setting off the alarm, and proceeded to take clothing, shoes and the store's cash register containing $600, before leaving in the same motor vehicle. The incident was captured on CCTV footage. A total of $12,000 of running apparel was stolen, of which goods to the value of $2,689.69 were subsequently recovered.
At approximately 4.40am, the Skoda motor vehicle was located outside premises at Glenbrook. Police located several coat hangers from the store in the driver's footwell, along with clothing packaging. Later that morning, council workers working in parkland at Cambridge Park located the cash register together with store tags, gift cards and receipts, and two jumper/jackets worn during the break and enter. The items were handed into St Mary's police station. A mixed DNA profile was recovered from one jumper and the offender Neal could not be excluded as a contributor to that mixture.
Search warrants were subsequently executed at premises at Kingswood and Penrith. At premises at Kingswood, the offender was located and arrested. Police located in those premises a black and red backpack containing a large amount of specialist running apparel stolen from the store. A further search conducted a few days later revealed a number of items, including clothes and shoes.
The facts in respect of counts 1 to 4 on the Indictment were those facts set out in my judgment on verdict dated 18 February 2022 ([2022] NSWDC 23). That judgment, including the facts agreed at trial and my findings of fact should be read in conjunction with these remarks. A summary of the offences is as follows.

Count 1 - robbery, pursuant to s 94(a) of the Crimes Act 1900.

On 6 September 2018, the offender robbed Melissa Byrne, the manager of the Insignia Hair and Day Spa at Penrith. At about 8pm, Ms Byrne was sitting at the front desk of the day spa where there were three other employees working. The offender walked into the premises wearing a matte black motorcycle helmet and visor. He approached Ms Byrne and said, "Give me your money". She said "What?" and the offender said, "Give me all your money or I'll stab or shoot you with this". While he was speaking, he reached into his jacket although Ms Byrne could not see any weapon. She then said, "Well, come 'round and get it."
The offender then walked around the counter and Ms Byrne opened the cash register. He stole $677 and tried to take two mobile phones that were on the desk. Ms Byrne managed to wrestle the phones from his grip. The offender left the premises and was observed riding away on a motorcycle registration number BCY-60.

Count 2 - aggravated break and enter and commit serious indictable offence, pursuant to s 112(2) of the Crimes Act.

At approximately 9pm on 6 September 2018, the offender broke into premises at Penrith. He was wearing a black motorcycle helmet and was observed by an occupier of those premises, who said to his brother who was also in the premises, "Call the police. Someone's here that we don't know". The offender was in a bedroom and was going through a chest of drawers. The occupier subsequently observed him in the hallway to the premises holding a drawer in his hand. The offender then ran through the hallway and out towards the kitchen at the rear of the premises and exited through the kitchen door. Shortly thereafter police arrived, and the drawer was found directly outside the kitchen door on a wooden deck with some of its contents spilled onto the deck.

Count 3 - supply prohibited drug greater than indictable and less than commercial quantity, pursuant to s 25(1) of the DMTA.

Also near the kitchen door, police found a clear plastic bag with a crystal substance inside. It was analysed and found to comprise 27.7 grams of methylamphetamine. The offender's DNA was found on the inside and outside of the seal area of the plastic bag.

Count 4 - break and enter house and steal goods of a value less than $60,000 pursuant to s 112(1)(a) of the Crimes Act 1900.

In the early hours of the morning of 4 October 2018, the offender attended the Chicken Run shop at Cranebrook, where he broke into the premises and stole a cash register containing $870. CCTV evidence established that the motorcycle ridden by the offender was similar to a motorcycle seen parked outside the offender's home and that the offender was carrying a blue and white backpack and wearing certain clothing and shoes which were subsequently seized by police pursuant to a search warrant executed on 11 October.
Exhibit A also included the criminal antecedents of the offender, which included numerous offences of dishonesty, including car stealing and break and enter offences, possession of prohibited drugs and custody of a knife in a public place in the Children's Court. At age 20, he was sentenced to terms of imprisonment of 12 months and 1 year and 6 months for car stealing and aggravated break and enter and commit serious indictable offence, and in the same year was sentenced to terms of imprisonment of 12 months, 2 years with a non-parole period of 15 months and 4 years for similar offending to the index offences here.
In 2009, the offender was sentenced for an offence of being carried in conveyance taken without the consent of the owner, to a term of imprisonment of six months. In 2012, he was sentenced to a term of imprisonment of three years with a non-parole period of 15 months for break and enter house premises. In 2013, he was sentenced to a term of imprisonment of seven months for possession of unregistered firearm and possession of an unauthorised firearm (concurrent sentences of seven months with a non-parole period of one month).
In 2013, he was sentenced to terms of imprisonment for goods in custody (three months), possession of prohibited drugs (one month) and possess/attempt to obtain prescribed/restricted substance (one month).
In 2015, he was sentenced to further terms of imprisonment for larceny (eight months), break and enter house (20 months with a non-parole period of 12 months) and larceny (seven months).
In 2017, he was sentenced to concurrent terms of imprisonment for offences of larceny (six months), stalk/intimidate/intend fear of physical etc harm (six months) and common assault (six months).
In 2018, he was placed on two s 9 bonds for possession of prohibited drugs for 18 months to commence on 18 January 2018, with a further s 9 bond for the same offence.
In a lamentable criminal history, the offender had numerous other offences taken into account on Forms 1 when sentenced for serious offending. These included offences for dishonesty including numerous break and enter and larceny offences and various traffic offences. In 2009, he had been sentenced to imprisonment for five years with a non-parole period of three years for an aggravated assault with attempt to take and drive a motor vehicle and inflict actual bodily harm. In 2017, he had been sentenced to a term of imprisonment of 12 months with a non-parole period of 9 months for possession or use of prohibited weapon without permit and further imprisoned for a period of six months for an offence of custody of knife in a public place. The first of those sentences was varied on appeal to imprisonment for nine months with a non-parole period of six months.
Finally, the offender had a s 9 bond imposed for driving whilst disqualified (second offence) as outlined above, on 18 January 2018.
Exhibit A also included the offender's custodial history, which was extensive and contained numerous custodial infractions.
Exhibit A also included the offender's traffic record issued by the Roads and Maritime Services which was similarly lamentable. In 2017, the offender was declared an habitual offender and disqualified for five years. He was subsequently convicted of driving whilst disqualified in 2018 and placed on a s 9 bond.
Exhibit B comprised a s 166 certificate, together with court attendance notices in respect of each of the four offences, and a statement of facts which recorded that: "1. On 18 January 2018 at Penrith Local Court, the offender was sentenced for the following offences (H65324244): a. Use Unregistered Registrable Class A Motor Vehicle On Road. He was sentenced to a fine of $250 b. Use Uninsured Motor Vehicle. He was sentenced to a fine of $250 c. Drive Motor Vehicle during Disqualification Period (2nd + Offence). He was sentenced to a s 9 Bond for 12 months, and his license was disqualified for a period of 12 months commencing 18 January 2018 and expiring on 17 January 2019. Sequence 8: Drive whilst disqualified s 54(1)(a) Road Transport Act 2. At about 8.00pm on 6 September 2018, the offender drove a dark coloured motorbike, bearing registration BCY60 into the Abcoe Centre located at 69 York Road, South Penrith. He then committed a robbery at Insignia Hair and Day Spa (Count 1). 3. Immediately after that robbery, the offender drove the motorbike to 6 Rawson Ave, Penrith (distance approx. 1.6km) Sequence 9: Drive whilst disqualified s.54(1)(a) Road Transport Act 4. At about 2.45am on 4 October 2018, the offender rode a white and purple motorcycle into the Cranebrook shopping centre car park. He then committed a break and enter at the Chicken Run takeaway shop. Sequence 10 - Goods in Personal Custody s 527C(1) Crimes Act 1900 5. On 10 October 2018, police applied for and were granted search warrant number 200/18 for [redacted] Street, Kingswood being the primary residence of the offender and his partner, Karen DAY. 6. On 11 October, police executed the search warrant. The search of the [redacted] Street unit was electronically recorded, and all items seixed were entered into property seizure and exhibit forms (B309077-B39079). 7. Police located an orange and black KTM 350 EXC 2 Stroke motorcycle, bearing NSW Registration CUL8K (Fraudulent Plates) (VIN: VBKGSA201GM258167) in the kitchen of the unit. The motorcycle had been reported stolen on 4 May 2018. 8. A forensic examination was conducted on the bike with swabs taken from the petrol tank cap, handle bar grips and seat. DNA matching the offender was recovered from the petrol tank cap and left handle bar grip."
Exhibit C was the Sentencing Assessment Report under the hand of Mr B Bannerman, dated 10 May 2022. The author noted a history of antisocial behaviour and that the offender acquired antisocial values from his father, who exposed him to illicit drug use, and by associating with other offenders. This led to the offender being incarcerated in a juvenile justice facility. He claimed to have been sexually assaulted whilst in that facility, which resulted in a life of crime and drug abuse. The offender had spent most of his adult life in custody.
Under the heading "Attitudes", the author noted that due to the daily use of heroin and benzodiazepines, the offender claimed no memory of committing most of the offences. He did remember selling drugs to support his personal habit and that of his partner.
The author noted that the offender has commenced a methadone program whilst on remand. Following a drug test in custody on 9 April 2022, the offender tested positive to unprescribed mirtazapine and quetiapine. The offender stated he had previously been prescribed these substances; however they were not currently prescribed.
Under the heading "Insight into Impact of Offending", the offender said that he felt terrible about what he did. He acknowledged that the victims had lost hard earned possessions and money.
The offender was willing to undertake intervention and stated that he behaved responsibly during the 14 months he was on bail. The recent positive drug test confirms that he will need ongoing assistance.
The author noted that since 2005, the offender had his parole revoked on no less than six occasions. He was assessed as being a high risk of reoffending, although the author set out a supervision plan which included the offender's continuing engagement with his methadone program, engagement with the ONE80TC outreach program and attendance at either a face-to-face EQUIPS foundation program or an online delivery program. He was assessed as suitable to undertake community service work.
Exhibit D was the CCTV footage of the aggravated break and enter offence the offender committed on 8 October 2018 with the co-offender McCutchen.

The offender's evidence

The offender tendered a bundle of evidence without objection, which became Exhibit 1.1-1.5. Exhibit 1.1 was a report from K. North, forensic psychologist, dated 4 May 2022. The offender was assessed via AVL on 28 March 2022 during a two-hour interview. The report outlined the offender's family history. He was the eldest of four children and his father had a history of drug use, gambling issues and domestic violence towards the offender's mother, which the offender was exposed to from an early age. He was also physically abused by his father during his youth. The offender described a close relationship with his mother.
At primary school, the offender was diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD). He did not complete Year 9 of High School. He thereafter had an erratic employment history, engaging in unskilled work.
The offender formed a relationship with his deceased partner and they had a daughter who is currently four years of age. His relationship with his deceased partner had been chaotic in nature, given that they both were addicted to prohibited drugs. The author noted that she died from an accidental overdose whilst he was in custody in 2019. Their daughter has been in the care of his mother since that time. He had daily contact with her whilst he was on bail for 14 months up until February 2022. He also disclosed having an 11-year-old son to a former partner, however, he had no contact with that child.
The author also noted that the offender was now in a supportive relationship.
The offender had a long history of drug abuse, having commenced smoking cannabis at age 12. He began smoking heroin at age 16 and commenced using amphetamines at approximately 18 years of age. This led to his later use of amphetamines, which he described as his primary drug of concern, noting that he would relapse whenever he was in the community.
The offender had been in the compulsory drug treatment correctional centre between 2007 and 2009, and described reaching Stage 3 prior to being breached from the program. He was also on a Buprenorphine Maintenance Treatment (BMT) in 2018 and on a Methadone Maintenance Treatment whilst on bail in the community in 2020. He denied any drug use since being in custody and planned to continue on methadone upon his discharge.
The author noted that the offender had been exposed to domestic violence and physical abuse from a young age. He also disclosed having been sexually abuse by a male staff member whilst in juvenile detention at the age of 17 years. His continued use of drugs since that time helped him to avoid addressing his past trauma issues.
The author also noted that the offender described a history of symptoms of psychosis and paranoia, as well as symptoms of anxiety and depression.
The author noted that of concern was the offender's extensive history of incarceration, having spent 15 years in custody and that he was at risk of institutionalisation. Ms North was of the opinion that he currently met the diagnostic criteria for the following diagnoses: "Stimulant use disorder, amphetamine type substance, moderate. Opioid use disorder, moderate, on maintenance therapy."
The author then set out a treatment recommendation for his release into the community to avoid relapse into drug abuse.
Exhibit 1.2 was a letter from the offender's mother setting out the family history and the offender's childhood exposure to drug abuse and domestic violence. Mrs Neal also confirmed his diagnosis with ADHD and his escalating drug use as a teenager. She reported a "massive change" in the offender whilst he was awaiting trial on remand and stated that he stayed off drugs during that period. She also described the death of his former partner and that he had commenced a new relationship and had settled down. She described him as truly turning his life around whilst he had been on bail, and described the impact of the COVID-19 pandemic on his custody. The letter also included a certificate of appreciation awarded to the offender in 1997 for assisting police.
Exhibit 1.3 was an offer of employment from a metal roofing company to the offender. The employer stated that he had personally known the offender for 15 years and was aware that he had a criminal history and was currently being sentenced.
Exhibit 1.4 was a letter from a caseworker employed by ONE80TC dated 10 May 2022, noting the offender's engagement with the ONE80TC outreach program on 27 January 2022. He was described as being proactively involved in the program and has remained abstinent from drugs and alcohol. It further stated that upon his discharge, the offender can resume the outreach program whenever he is in the community.
Exhibit 1.5 were extracts from the Bugmy Bar Book Project, relevant to childhood exposure to domestic and family violence, early exposure to alcohol and other drug abuse and childhood sexual abuse and its impact on children.

Submissions on behalf of the offender

The offender relied on an outline of written submissions. In respect of counts 1 to 4 to which the offender pleaded not guilty, it was submitted the only issue in the trial was identity. In assessing the objective seriousness of the offending in Count 1, the offender submitted that the court would find the victim was put in fear by the threat to stab or shoot her which facilitated the taking of property. Whilst there was an implied threat that the offender might be armed, there was no evidence that anything could be seen under his jacket that would support that threat. Importantly, it was submitted there was no physical contact between the victim and the offender. The offending was of short duration and whilst there was some planning involved as demonstrated by the wearing of a helmet and gloves, it was submitted that the planning was not at a level that would aggravate the offence. For those reasons, it was submitted the offence fell into the low range of objective seriousness for an offence pursuant to s 94(a) of the Crimes Act.
In respect of Count 2, the offender submitted that there was insufficient evidence to find that the offender broke into the premises via an external door. The evidence from the agreed facts and of the witness established a breaking in respect of the door to the grandmother's bedroom only. It was submitted that the offence of larceny was the least serious example of a serious indictable offence. This referred to the items contained in the drawer, which contained some DVDs and other personal items. This property was only moved a short distance from the bedroom to the wooden deck and was immediately recovered, which reduced the seriousness of the offence.
Further, it was submitted the aggravating factor of "knowing a person or persons were inside" was one of the less serious ways in which such a factor can be established under s 105A of the Crimes Act.
It was submitted that the offender had knocked on the door before entering the premises, although the offender did not rely on the defence that he had reasonable grounds for believing no one was inside. On the basis of the evidence that no one answered his knock and there being no evidence of any noise emanating from within the house, it was submitted that the court would find the offender's knowledge was at the lowest possible level to make out that element of the offence. Further, there was no confrontation between the offender and the occupants and once the occupant yelled out, the offender immediately left the premises. It was therefore submitted the offence fell into the low range of seriousness.
Count 3 was the offence of supply prohibited drug greater than an indictable quantity, pursuant to s 25(1) of the DMTA. The offence was proved by a combination of circumstances, particularly the finding of the offender's DNA profile on the inside or outside of the seal of the plastic bag containing 27.7 grams of methylamphetamine. The Crown relied on the deeming provision in s 29 of the DMTA to prove supply. There was an absence of evidence of actual supply, for example, no indicia of supply were located such as money, packaging, or a tick list. The weight of the drug was also a relevant matter. The indictable quantity is 5 grams, and the commercial quantity is 250 grams. The weight of the drug was therefore towards the bottom of the range for the offence of supplying more than the indictable quantity.
In the offender's evidence, he had said that at the time of the offending he was heavily using ice, heroin and cannabis on a daily basis. In light of his drug addiction, the court would find that he was a user dealer. It was submitted that the offence fell into the low range of objective seriousness for an offence pursuant to s 25(1) of the DMTA.
Count 4 was the break and enter offence that occurred on 4 October 2018 at Cranebrook. The property taken was a cash register and drawer containing $870 cash. It was submitted the amount taken was of modest value and the damage occasioned was limited to that necessary to carry out the offence. It was submitted there was limited planning and the offending fell into the low range of objective seriousness.
In respect of the joint offence of aggravated break and enter and commit serious indictable offence (sequence 6) with the co-offender McCutchen, the offender submitted the method of entry was unsophisticated, namely, by using a crowbar to force the front door open. There was no damage over and above that necessary to gain entry and there were two offenders, which is the least number of offenders required to satisfy the aggravating factor of "being in company". The property taken was running apparel and a cash register containing $600 with an overall estimated value of $12,000, some of which was recovered. It was submitted that the presence of the two co-offenders' DNA on clothing located inside the stolen vehicle and the locating of the stolen property at the offender's partner's home demonstrated the planning was unprofessional. It was submitted the offending fell into the low range of objective seriousness.
In relation to the subjective circumstances of the offender, counsel submitted that the court would accept the history detailed in his mother's letter, together with the history outlined by Ms North, forensic psychologist. It was submitted the offender had been exposed to drug abuse at an early age by his father and had commenced using cannabis when aged about 12 years. He was diagnosed with ADHD around Year 7 and eventually left school in Year 9. Whilst the offender gained employment and thereafter set up his own business as a sub-contractor installing cladding and guttering on houses, his cannabis use continued and escalated to heroin and methylamphetamine abuse, which led to his incarceration in juvenile detention. At 17 whilst in juvenile detention he was sexually abused by a staff member. This led to an escalation of his drug use which continued up until the commission of the index offences. The offender had described a history of drug-induced psychotic symptoms.
Counsel referred to the death of the offender's partner who died of a heroin overdose when the offender was first in custody on the present charges. This has caused him "immeasurable grief and this is an area he needs assistance with".
Counsel referred to the letter of Mr Carroll, outlining a job offer for a full-time position as a team leader/skilled labourer in the metal roofing industry.
It was submitted that the offender had a lengthy criminal history for property offences, however, his last conviction was in 2017 which demonstrated that despite his disadvantaged upbringing he can live a pro-social and law abiding life. It was submitted that the court would find that his criminal record deprives him of leniency.
Counsel submitted that the offender had been subjected to drug abuse and a violent father during his formative years. The sexual abuse that he had been subjected to had continued to have an impact on his life, causing his drug use to escalate and become entrenched. It was submitted this background engaged the principles in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37. The articles from the Bugmy Bar Book, which formed part of the defence evidence, provided reference material in addressing the deleterious effect of childhood deprivation upon the offender. It was submitted this warrants the court reducing the offender's moral culpability for the present offences.
It was submitted that the Judge alone trial was run on a narrow basis, with the offender agreeing to a substantial body of agreed facts and avoiding the need for a long list of witnesses to be called. As a result of this cooperative approach, it was submitted the length of trial was substantially reduced and the administration of justice was facilitated. This meant that pursuant to s 22A of the CSPA, the court should, without specifying a percentage, reduce the length of the sentences to be imposed for the offences that went to trial.
It was submitted that the offender has good prospects of rehabilitation and the court should find that he is unlikely to reoffend. This was supported by the evidence of Mrs Neal, who saw positive changes in her son when he was on bail for these charges. Further, his recent disclosure of sexual abuse demonstrates insight into the connection between his past trauma and his drug abuse. This was submitted to be a positive factor as he has acknowledged the need to address both issues. The court would also take into account the fact that he was offence free since 7 October 2018, he had complied with strict bail conditions, he had no custodial charges during both periods on remand, he had a supportive family and an offer of employment.
The offender submitted that the principle of totality would require that there be a degree of accumulation between the counts. However, the breaking offences were similar in nature and although they occurred on different dates, they were during the same drug fuelled period in the offender's life where all the offences were committed to support his drug habit. Count 1 had occurred on the same night as Counts 2 and 3, one hour apart and in the same town. It was submitted the court would find a slight degree of accumulation was appropriate between Counts 2 and 3, noting there was no victim in Count 3. Bearing in mind that the property in Count 2 was recovered, the harm to any victim was somewhat reduced. In respect of the joint offending in sequence 6, the offender was entitled to a 10% discount for the utilitarian value of his plea.
It was conceded that the s 5 threshold had been crossed and no sentence other than imprisonment was warranted. The offender had served approximately two years and four months months as pre-sentence custody and having been compliant with strict bail conditions it was submitted the court could be satisfied that community protection could be achieved with the offender being in the community. His ongoing rehabilitation could be more readily achieved in the community, and it was submitted that taking into account the period of pre-sentence custody, the court would arrive at an aggregate sentence that would allow it to consider alternatives other than full-time imprisonment, such as an Intensive Corrections Order ("ICO"). Finally, the court would find special circumstances to adjust the statutory ratio of the sentence pursuant to s 44 of the CSPA, based on the accumulation of sentences, the need for the offender to have assistance to reintegrate into the community, his need for ongoing mental health treatment and assistance with drug addiction issues as well as to manage his risk of institutionalisation.
In his oral submissions, counsel for the offender submitted there was solid background evidence to provide the court with an understanding of the offender's difficult upbringing, which led to his drug addiction and criminal history.
Counsel referred to the adverse conditions of prisoners in custody during the COVID-19 pandemic, including lockdowns up to twelve days at a time.
Counsel rehearsed his submissions as to the objective seriousness of the offending in respect of the joint offence with McCutchen. It was submitted that the Sentencing Assessment Report evidenced some acceptance of responsibility for his criminal conduct and some evidence of remorse. It was a generally positive report.
Counsel noted that despite the recent negative urine test, this was the one relapse since the offending and the offender had been otherwise stable. It was the fact that he had not offended since 2018 and had not offended during his 14 months on bail.
Counsel highlighted the offer of employment, which was full-time employment, and the close support of the offender's mother. On the question of parity with McCutchen in respect of the joint offence, it was submitted that both offenders had a similar upbringing and criminal history.
Counsel submitted that the motive for the offending was the offender's drug addiction. The assessment by Community Corrections that he was a high risk of reoffending was not unexpected because of his lengthy custodial history. He had been in and out of custody since the age of 18 years and the court would be very concerned about him becoming institutionalised. Moreover, his periods in custody had increased over time. Given the subjective matters outlined above, it was submitted that the risk could be assessed at being "a bit less than high risk". He had engaged with Community Corrections for the purpose of compiling the Sentencing Assessment Report, there was a supervision plan in place and that he would be on a methadone program on release. Further, he had recently disclosed his sexual assault at age 17 whilst in juvenile detention.
Counsel submitted that the root cause of his criminal conduct was deep in his upbringing. He had been introduced by his father to prohibited drugs at a very young age and had been exposed to domestic violence in the home. There was a clear need for treatment to prevent his relapse.
In determining whether any sentence could be served in the community, counsel submitted the court would have regard to Mandranis v R [2021] NSWCCA 97 per Simpson AJA at [61] and following, with which Garling J had agreed. It was submitted having regard to the pre-sentence custody, any sentence could be reduced to below three years, and it would be therefore open to the court to impose an ICO. Counsel submitted that the offender had a strong subjective case together with a family who support him and an offer of full-time employment. An ICO would allow him to be continuing the trajectory he was on whilst on bail and conditions could be imposed such as a curfew or home detention, for which a further report would be required.
In conclusion, counsel highlighted the following five matters to be taken into account. First, his partner Karen's passing due to drug overdose. Secondly, his daughter Jayda was now nearly four years of age and he had sole parental responsibility of her. Thirdly, the methadone program had provided stability for him. Fourthly, he had disclosed the sexual assault he suffered whilst in juvenile detention as a child. Fifthly, he had a new partner who had helped him turn his life around. Counsel submitted that having regard to those matters in this difficult sentencing exercise, the court would take into account that he had been crime-free for a period of four years and exercise some leniency accordingly.

The Crown's submissions

The Crown also relied on a written outline of submissions in which it set out details of the offending and well established sentencing principles relevant to the index offending. The Crown submitted that break and enter offences have long been regarded as serious offending and general deterrence is an important factor in sentencing. Further, the principle of totality will rarely, if ever, justify wholly concurrent sentences for a series of break and enter offences relying on R v Merrin [2007] NSWCCA 255; (2007) 174 A Crim R 100 at [38]; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [38]-[42]. With respect to the circumstances of aggravation relevant to the s 112(2) offences, the Crown referred to the judgment of Simpson J (as her Honour then was) in R v Huynh [2005] NSWCCA 220 where her Honour held the seriousness of the offending must be determined by reference to the particular facts of each case. Whilst there was no gradation of the circumstances of aggravation set out in s 105A of the Crimes Act, her Honour went on to say: "Certain of the circumstances of the aggravation would, as a matter of common sense, appear to be more serious than others. One would expect that being armed with an offensive weapon, for example, or the use of corporal violence, or the deprivation of liberty, would ordinarily, be regarded as more serious than committing an offence in company. But all depends on the particular circumstances of the individual case."
In respect of drug offences, the Crown referred to Parente v R [2017] NSWCCA 284 where at [107]-[115], the Court noted the purposes of sentencing including general deterrence, protection of the community, together with the maximum penalties and any standard non-parole periods which must be considered by the sentencing court. In respect of the joint break and enter offence committed on 8 October 2018 (sequence 6), having regard to all of the circumstances of the offending, the Crown submitted that the objective seriousness fell below the mid-range for an offence pursuant to s 112(2). In respect of Counts 1 to 4, having regard to the circumstances of the offending, the Crown submitted that Counts 1, 3 and 4 fell below the mid-range of seriousness whereas Count 2 fell in the mid-range.
The Crown submitted the following aggravating factors were relevant. In respect of Count 2, the offence was committed in the home of the victim which was an aggravating factor pursuant to s 21A(2)(eb). It was submitted there was something particularly repugnant about the forced entry of an offender into a house and violating the safety of the home, relying on Palijan v R [2010] NSWCCA 142 at [21].
It was a further aggravating factor that the offending was committed whilst the offender was on conditional liberty, being subject to three bonds and a driver disqualification order.
A further aggravating factor was that the offending was planned. It was submitted the degree of sophistication of the planning will determine the weight to be accorded to this factor. In respect of each of the offences, there were premises selected and it was submitted that what was to be stolen was determined before the offences took place. This was an aggravating factor pursuant to s 21A(2)(n).
The Crown conceded the offender was entitled to a 10% discount in respect of sequence 6, the joint offence with McCutchen in respect of his late plea of guilty.
The Crown submitted that the evidence of the offender's extensive drug use supported a more severe sentence being imposed due to a consideration of danger to the community and specific deterrence as the prospects of rehabilitation must be considered to be very slim, relying on Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 88 at [56]-[57]; JMS v R [2010] NSWCCA 229 at [42].
The Crown referred to the offender's extensive criminal history and the fact that he had spent two years, four months and three days in custody, solely referable to the index offending, as at 13 May 2022.
In her oral submissions, the Crown opposed any sentence other than one of full-time custody. The number of offences and seriousness thereof required the offender to spend further time in custody. Further, the joint offence carried a prescribed maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years imprisonment. The four counts to which the offender had pleaded not guilty included three very serious offences of which Count 2 also carried a standard non-parole period of five years imprisonment.
The Crown acknowledged that the evidence relied on by the offender provided some potential for improvement, however, he had been assessed in the Sentencing Assessment Report as a high risk of recidivism. The fact that he had a recent positive drug test whilst in custody in April 2022 demonstrated that he still requires assistance. His prospects of rehabilitation, notwithstanding there were some signs he was on the right track, were not good and protection of the community was required to be taken into account.

Submission in reply

Counsel for the offender submitted that if a sentence of more than 18 months was imposed, the offender should be referred to the Drug Court. He was an "eligible convicted offender" pursuant to s 5A of the Drug Court Act 1998 and the District Court was a referring court pursuant to s 6 of the Act.

Determination

Section 3A of the CSPA sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
In assessing the objective seriousness of the joint offence in sequence 6 of aggravated break/enter and commit serious indictable offence, I take into account that the aggravating factor was that the offence was committed in company. Having regard to all of the circumstances of the offending, including that the premises had been identified by the offender beforehand, the forced entry into the premises with a crowbar and the amount stolen, I find the objective seriousness of the offending fell below the mid-range for an offence pursuant to s 112(2) and in the upper part of the low range for such an offence. It still constituted serious offending.
The offending in Count 1 involved the offender walking into the premises wearing a black motorcycle helmet with visor. He threatened the manager of the day spa by saying, "Give me all your money or I'll stab or shoot you with this". Whilst no weapon was produced, it was a serious threat, which caused the manager to invite him to take the contents of the cash register which she opened. He then attempted to take two mobile phones on the reception desk, however the manager managed to wrestle the phones from his grip. Having regard to all of the circumstances of the offending, the offence was below the mid-range for an offence pursuant to s 94(a) of the Crimes Act 1900 and in the middle of the low range for such an offence.
Count 2 on the Indictment involved the offence of aggravated break and enter and commit serious indictable offence at the home at Penrith. Again, the offender was wearing a black motorcycle helmet with visor and having regard to all of the circumstances of the offence, I find that given the property was recovered the objective seriousness of the offending fell towards the low range for an offence pursuant to s 112(2) of the Crimes Act. The aggravating factor pursuant to s 105A in respect of this offence was pursuant to s 105A(1)(f), namely: "The alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed."
In assessing the objective seriousness of the offence in Count 3, namely, deemed supply involving 27.7 grams of methylamphetamine, I take into account the indictable quantity is 5 grams and the commercial quantity is 250 grams. Given that the weight of the drug was towards the bottom of the range for an offence of supplying more than the indictable quantity, and there was no evidence of actual supply in circumstances where the offender was clearly a user dealer, the offending fell towards the low range of objective seriousness for an offence pursuant to s 25(1) of the DMTA.
Count 4 involved break/enter and commit a serious indictable offence, being larceny, from the Chicken Run shop at Cranebrook where the offender stole a cash register containing $870. The offence occurred in the early hours of the morning, and having regard to all of those circumstances, the objective seriousness of the offending fell within the middle of the low range for an offence pursuant to s 112(1)(a) of the Crimes Act 1900.
It is clear that the offender's motivation for all of the offending had its genesis in his drug addiction. This does not mitigate the offending at all, but rather provides a context for the offending and reflects his moral culpability for each offence.
General deterrence is important in sentencing for both break and enter and drug supply offences. A clear message must be sent to likeminded members of the community that Parliament has prescribed heavy maximum penalties and in some cases standard non parole periods for such offences, and that the courts will impose condign punishment in appropriate cases. Specific deterrence is also important, given the offender's lengthy criminal history, which is referred to below.
It is an aggravating factor that the offences occurred whilst the offender was on conditional liberty pursuant to s 21A(2)(j) of the CSPA. The offender was at the time of each of the offences subject to three separate s 9 bonds to be of good behaviour and in those circumstances, the continued and repeated offending by this offender reflected a flagrant disregard for the law.
Each of the offences in sequence 6, Count 1, Count 2 and Count 4 involved some planning in terms of identification of the premises concerned, the use of a disguise to his identity (e.g. motorbike helmet and visor, wearing gloves to avoid detection) and use of a motorbike or stolen vehicle. It was therefore an aggravating factor in each of those offences pursuant to s 21A(2)(n), however, in each case, the offending was unsophisticated.
In respect of Count 2, it was an aggravating factor that the offence occurred in the home of the victim being the occupier, pursuant to s 21A(2)(eb) of the CSPA. The Crown's reliance on Palijan v R (supra) is misconceived in that the court in that case was dealing with an offence pursuant to s 112(2) of the Crimes Act, where the aggravating factor was using corporal violence on a person in those premises pursuant to s 105A(1)(c). It was in that context that Barr AJ said at [22]: "There is to my mind something particularly repugnant about the forced entry of an offender into a house and violating the safety of that place by carrying out an attack like that of the applicant." Thus, the Court was dealing with an aggravating factor more serious than that in play here.
Further, the offender's extensive criminal history does not entitle him to any leniency. I have regard to what the plurality said in Veen v R [No. 2] (1998) 164 CLR 465 at 477: "The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted." It is clear that the offender's criminal history falls into the latter category here.
In respect of sequence 6, the offender is entitled to a utilitarian discount of 10% for his late plea of guilty.
There are a number of significant subjective factors to be taken into account on sentencing the offender. His family history is set out in the report of Ms North (Exhibit 1.1). Whilst such reports not supported by evidence must be approached, as a general observation, with some circumspection (see Lloyd v R [2022] NSWCCA 18), there was no objection by the Crown to any part of the report and I accept the family history as set out by Ms North. It is clear that the offender grew up in a dysfunctional family and was exposed from a young age to his father's drug abuse and gambling issues and to domestic violence towards his mother and also physical abuse by his father. The offender was diagnosed with ADHD in primary school and left school in Year 9 due to behavioural issues. He commenced smoking cannabis from the age of 12 or 13 and began using heroin between 16 and 17 years of age. His drug abuse then escalated to amphetamines and later onset of methamphetamine use. He had maintained erratic employment in unskilled work and his drug abuse and association with antisocial peers led to interaction with the criminal justice system and incarceration.
I accept Ms North's opinion that the offender currently meets the diagnostic criteria for a stimulant use disorder (amphetamine type substance) which is moderate, and an opioid use disorder which is moderate and for which he is on maintenance therapy, namely, methadone. I further note that he had started participating in the SMART Recovery Program whilst on bail prior to going into custody in February 2022.
Another stressor in the offender's history was the death of his partner due to overdose whilst he was in custody following the index offences.
There are positive features which have to be taken into account. The offender has been offered full-time employment, he has the support of his mother and new partner and has not offended since the index offending, including during the 14 months he was subject to strict bail conditions. Another positive factor is that he has recently disclosed the sexual assault which took place upon him whilst in juvenile custody and had thus commenced a healing process.
Having regard to all of the evidence, I am satisfied that the offender suffered profound deprivation as a child which must have the effect of reducing his moral culpability for the offending, as well as moderating the weight to be given to personal and general deterrence (see Lloyd v R at [32]). In Hoskins v R [2021] NSWCCA 169, Brereton JA said at [57]: "There is no magic in the word 'profound', and it is not necessary to characterise an offender's childhood as one of 'profound deprivation' before the principle is engaged. The principle is that social disadvantage may reduce an offender's moral culpability, especially where the offending is in the nature of impulsive or learned responses to situations, arising from the circumstances of social disadvantage. Thus, the Bugmy principles may not operate to reduce moral culpability in a case where careful planning and pre-meditation is involved, such as cultivation and drug supply matters. However, engagement of the principles does not depend on the establishment of a causative link between the circumstances of deprivation and the offending."
Here, the offender's early exposure and continued abuse of prohibited drugs is linked to his childhood exposure to his father's drug abuse and domestic violence. The impact of these matters does not diminish over time and must be taken into account to reduce his moral culpability for the offending.
Having regard to the offender's long history of drug abuse, his failure to rehabilitate in the past and the need for him to be maintained on the methadone program (MMT) means that his prospects of rehabilitation must be guarded, and that his risk of recidivism is high, given that it is entirely dependent on his adherence to relapse prevention. As set out in the Sentencing Assessment Report, as recently as 9 April 2022 the offender tested positive to unprescribed drugs in custody.
The offender's counsel submitted that the Judge alone trial was run on a narrow basis with the offender agreeing to a substantial body of agreed facts and avoiding the need for a long list of witnesses to be called. It was the effect of that "cooperative approach" which substantially reduced the length of the trial and thereby facilitated the administration of justice. It was submitted the court would therefore reduce the length of sentences to be imposed for counts 1 to 4.
Section 22A of the CSPA provides as follows: 22A Power to reduce penalties for facilitating the administration of justice (1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise). (2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.
It has been held that assistance under the section does not necessarily require a reduction in the sentence - see Biddle v R [2017] NSWCCA 128. I accept that there were extensive facts agreed at trial, however, the Crown was still put to proof as to the identity of the offender in each count. Any reduction in penalty for facilitating the administration of justice would therefore be nominal only.
I find special circumstances pursuant to s 44(2) of the CSPA based on the need for supervision for the offender's ongoing treatment for his drug addiction and further because of the restrictions on the prison population due to the COVID-19 pandemic. This has made the offender's custody more onerous than it would otherwise have been. I therefore intend to vary the statutory ratio between head sentence and non-parole period so that he has a longer period under supervision to address his drug and alcohol issues including relapse prevention.
I have taken into account the maximum penalty of twenty years imprisonment and standard non-parole period of 5 years imprisonment in respect of sequence 6 and Count 2, and I have also taken into account the maximum penalty of 14 years prescribed for Count 1, the maximum penalty of 15 years and/or 2,000 penalty units prescribed for Count 3 and the maximum penalty of 14 years imprisonment prescribed for Count 4. The maximum penalties and standard non-parole periods, where applicable, are guideposts in the sentencing process. Further, there is no issue here that the principle of parity applies here in sentencing for sequence 6, for which I have already sentenced the co-offender.
I intend to impose an aggregate sentence for the index offences, pursuant to s 53A of the CSPA and impose individual sentences in respect of the related matters on the s 166 certificate. In order that there is transparency in the sentencing process, I set out my indicative sentences as follows: 1. Sequence 6 - offence pursuant to s 112(2) of the Crimes Act - 3 years and seven months imprisonment with 2 years non-parole period. 2. Count 1 - offence pursuant to s 94(a) of the Crimes Act - 15 months imprisonment. 3. Count 2 - offence pursuant to s 112(2) of the Crimes Act - 2 years imprisonment with 12 months non-parole period. 4. Count 3 - offence pursuant to s 25(1) of the DMTA - 18 months imprisonment. 5. Count 4 - offence pursuant to s 112(1)(a) of the Crimes Act - 2 years imprisonment.
It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be "just and appropriate" to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved: "[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
Applying principles of totality and proportionality to the offending, I intend to sentence the offender to an aggregate sentence of 5 years and 6 months with a non-parole period of 3 years. The sentence would be backdated for a total of 888 days, representing the time the offender has spent in custody referable only to these matters.
The offender has submitted that taking into account the period of pre-sentence custody, the court would arrive at an aggregate sentence that would allow it to consider alternatives other than full-time imprisonment could be served as an Intensive Corrections Order.
Section 68 of the CSPA provides as follows: 68 Intensive correction orders not available where imprisonment exceeds limits (1) An intensive correction order must not be made in respect of a single offence if the duration of the term of imprisonment imposed for the offence exceeds 2 years. (2) An intensive correction order may be made in respect of an aggregate sentence of imprisonment. However, the order must not be made if the duration of the term of the aggregate sentence exceeds 3 years. (3) Two or more intensive correction orders may be made in respect of each of 2 or more offences. However, the orders must not be made if - (a) the duration of the term of any individual term of imprisonment exceeds 2 years, and (b) the duration of the term of imprisonment imposed for all the offences exceeds 3 years.
An ICO is a way of serving a term of imprisonment and cannot be an alternative to imprisonment - see Wany v DPP (2020) 103 NSWLR 620; [2020] NSWCA 318 per McCallum JA at [18]. The offender relied on Mandranis v R (supra) to submit this was an appropriate case for the sentence to be served by way of an ICO where there has been pre-sentence custody.
In determining whether to order an ICO, s 66(1) of the CSPA provides that the paramount consideration in such a decision is community safety. Section 66(2) provides that the court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending and by subsection (3), the court is required to address the purposes of sentencing (see Mandranis at [28]).
In Mandranis, Simpson AJA provided a practical solution to enable the imposition of an ICO where an offender had served a term of pre-sentence custody. If an ICO was found to be appropriate, her Honour found that it would "be acceptable for that term to be adjusted by the deduction of the period equivalent to the term of pre-sentence custody, so that the ICO commences on the day it was made (in compliance with s 71) and is coextensive with the term of imprisonment (as required by s 70). The sentence actually recorded and imposed would be less (by the length of the pre-sentence custody) and the sentence found to be appropriate to meet the purpose of sentencing."
At [63], her Honour went on to say: "[63] It is also possible that this process might open more sentences to being served by ICOs. For example, a four year aggregate sentence, reduced to three by reason of 12 months pre-sentence custody, would not be precluded by s 68(2) from being served by way of ICO. Whether that would be a legitimate exercise of the sentencing discretion does not arise in this case and therefore need not (and cannot) be decided."
N Adams J agreed with the reasoning of Simpson AJA. At [67], her Honour said: "As for her Honour's observation at [63], it seems to be that it would be a rare case in which an ICO could be considered appropriate for an aggregate sentence the starting point of which exceeds three years (before the pre-sentence custody has been taken into account). The fact that s 68(3)(b) sets an upper limit of three years for an aggregate sentence before an ICO is available is consistent with the legislative intention that any aggregate sentence that exceeds three years would be inconsistent with s 68 and reflect criminality too serious for an ICO. As her Honour has noted at [63], imposing an ICO in such circumstances may not be a legitimate exercise of the sentencing discretion. Despite this, and as her Honour has also noted, the question does not arise in this case and therefore does not need to be decided."
Having regard to the sentence which I intend to impose of five years and six months with a non-parole period of three years, an ICO is not available pursuant to s 68 of the CSPA. Even if the pre-sentence custody relevant to the index offences was deducted from the sentence of five years and six months, a total sentence would still be well in excess of three years. For that reason, the Court's decision in Mandranis (supra) does not assist this offender and I decline to make an order that his sentence be served by way of an ICO.
Counsel for the offender alternatively submitted that the offender should be referred to the compulsory drug treatment correctional centre at Parklea. Entry to this centre is achieved by referral to the Drug Court for the making of a Compulsory Drug Treatment Order ("CDTO"). To be eligible, the offender must be sentenced to a term of full-time imprisonment and at the time of sentence, the unexpired non-parole period is at least 18 months, and the unexpired total sentence is not more than six years. An offender is not eligible if convicted of certain offences, none of which apply to this offender. I am assuming that the offender lives in the Penrith Local Government Area as his usual place of residence. As the unexpired non-parole period will be less than 18 months, the matter cannot be referred to the Drug Court to assess his eligibility for the making of a CDTO.
For the four offences on the s 166 certificate, I intend to sentence the offender as follows: 1. H69393621/7 - knowingly be carried in conveyance, pursuant to s 154A(1)(b) of the Crimes Act 1900. I find the offence proved and convict the offender without imposing any further penalty pursuant to s 10A of the CSPA. 1. H69393621/8 - drive whilst disqualified, pursuant to s 54(1)(a) of the Road Transport Act 2013. You are convicted and fined $250 and disqualified for six months from 17 June 2022. 1. H69393621/9 - drive whilst disqualified pursuant to s 54(1)(a) of the Road Transport Act 2013. You are fined $500 and disqualified for 12 months from 17 December 2022. 1. H69393621/10 - goods in custody pursuant to s 527C(1)(c) of the Crimes Act 1900. I find the threshold in s 5 of the CSPA has been met and no penalty other than a term of imprisonment is appropriate in the circumstances. I intend to impose a term of four months imprisonment to be served concurrently with the aggregate sentence for the index offending set out above.

Orders

I hereby order as follows: 1. You are convicted of the following offences: 1. Aggravated break and enter and commit serious indictable offence (sequence 6). This is an offence pursuant to s 112(2) of the Crimes Act 1900, to which the offender and his co-offender McCutchen pleaded guilty. 2. Offence of robbery pursuant to s 94(a) of the Crimes Act 1900. 3. Aggravated break and enter and commit serious indictable offence pursuant to s 112(2) of the Crimes Act 1900. 4. Supply prohibited drug greater than indictable and less than commercial quantity pursuant to s 25(1) of the Drug Misuse & Trafficking Act 1985. 5. Break and enter house and steal goods of a value less than $60,000 pursuant to s 112(1)(a) of the Crimes Act 1900. 1. I sentence you to an aggregate sentence pursuant to s 53A of the CSPA to imprisonment for five years and six months, with a non-parole period of three years to commence on 11 January 2020 and expire on 10 January 2023. 2. The balance of term will be a period of two years and six months, terminating on 10 July 2025. 3. With respect to the related matters on the s 166 certificate, you are convicted of each offence and I sentence you as follows: 1. H69393621/7 - knowingly be carried in conveyance, pursuant to s 154A(1)(b) of the Crimes Act 1900. 2. I find the offence proved and convict the offender without imposing any further penalty pursuant to s 10A of the CSPA. 3. H69393621/8 - drive whilst disqualified, pursuant to s 54(1)(a) of the Road Transport Act 2013. 4. You are convicted and fined $250 and disqualified for six months from 17 June 2022. 5. H69393621/9 - drive whilst disqualified pursuant to s 54(1)(a) of the Road Transport Act 2013. 6. You are fined $500 and disqualified for 12 months from 17 December 2022. 7. H69393621/10 - goods in custody pursuant to s 527C(1)(c) of the Crimes Act 1900. I sentence you to a fixed term of imprisonment of four months to be served concurrently with the sentence in (2) above.

Amendments 17 June 2022 - paragraphs [1] and [29] - anonymised personal identifiers 20 June 2022 - paragraphs [116], [125] and [127] - amended to reflect correct pre-sentence custody dates 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: 20 June 2022

(2020) 103 NSWLR 620

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Judgment (13 paragraphs)

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Cases Cited (21)