Mr C Minette (Solicitor for the Offender, Legal Aid NSW)
File Number(s): 2020/172893
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Judgment
Damien Pintley is 41 years old, and he has spent about 12 and a half years in full time custody since 1999. As he said today in evidence, he has basically spent his life since he was 19 in and out of gaol. He appears for sentence on three counts (H146256502, Sequence 1; H77535286, Sequences 2 & 3) of aggravated break, enter and steal in company contrary to s 112(2) of the Crimes Act 1900.These offences each carry a maximum penalty of 20 years imprisonment with standard non-parole period of five years He is also to be sentenced for a one count (H77535286, sequence 5) of break enter and steal contrary s 112(1)(a) of the Crimes Act 1900. This offence carries a maximum penalty of 14 years imprisonment, with no standard non‑parole period.
He pleaded guilty in circumstances justifying a 25% discount for the utilitarian value of the plea.
It is common ground that s 5 threshold has been crossed and that he must be sentenced to full time imprisonment.
Considerations of general and specific deterrence and the purposes of sentences set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 must be borne in mind at all times in the sentencing process.
The sentencing exercise is complicated by the fact that after these four offences were committed on 6 and 7 March 2020, he was sentenced on 18 March 2020 to a two year fixed term for a further aggravated break and enter with intent to steal in company, which was committed on 15 March. So the approach to the sentencing in this case, as is common ground between Crown and Mr Minette, who has comprehensively prepared and presented the matter on behalf of the offender, is that the Court must look at questions of totality and accumulation and, in effect, look at the total sentence that would have been imposed for all five offences, had he been sentenced in March 2020 or at some other stage.
The agreed facts show that H77535286, sequence 5 relates to a shop called No Fail Bubble Tea at Wolli Creek, the owner left the premises locked up on the night of 5 March 2020. CCTV showed Pintley, at about 4am the next morning, entering through the front door and leaving with the cash register containing $2,000.
The next sequence (H77535286, Sequence 2) involves an establishment called the Thai Recipe in Kogarah. This and the following two sequences are counts contrary to s 122(2) committed in company with Joshua Tarpey, who was to be sentenced today, however after an application pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 the matter has been adjourned for sentence in August. CCTV showed Pintley and Tarpey about 5am in the morning, both inside the restaurant, wearing baseball caps and backpacks. They jimmied open a cash register with a screwdriver and one of them took away a motorised scooter of no specified value. There was damage to the door consistent with it being forced open.
Next, H77535286, Sequence 3, was the Carinderia Restaurant at Kogarah. On 6 March, the owner locked up and left. At about 6am the next morning, Tarpey and Pintley are again caught on CCTV inside rummaging through the cash register and getting away with $40 cash.
The final sequence (H146256502, Sequence 1) involves Jin's Tea House at Newton. At about 7.30am on 6 March, Pintley and Tarpey enter the shop wearing the same gear, took the cash register containing $2000.
Pintley has a very lengthy record extending over 27 pages. As he acknowledged, he has committed about 20 break, enter, and steals over the course of that of that extensive history along with other offences of dishonesty.
He has been in the Compulsory Drug Treatment Corrections Centre, and fortunately, in the light of the evidence today, he says that he has finally seen the light at the age of 41 about the effect of these crimes on the victims and on the community. He displayed insight into the effect that it has on victim's insurance policies, their family and the community. He says that he is disgusted, and he really says that things are hopefully going to be different this time because of the benefit that he is receiving from the Compulsory Drug Treatment Program.
The chaplain, Reverend Wilson, has provided a positive reference. There has been no illicit drug use while he's been in the centre since July last year. He has successfully completed therapeutic programs and certificates. He has been a positive influence, supporting new participants, and he plans to progress to stage 2 where he will be able to access the community to allow him to acquire his forklift licence, study or find employment, commence rebuilding relationships with his children and others in his life. As he said in evidence today, Reverend Wilson described the offender acknowledging that the program helped him realise the impact that his offending has had on so many people. He brought embarrassment to his family, and he feels ashamed and regret for what he did. In short, he has been a helpful member of the program's community. His behaviour towards staff and other participants has been positive. He is described as polite, teachable and genuine about acknowledging the impact of his crime on others. That reference is also supported by a certificate from Sylvia Edwards, the case coordinator at the centre.
His subjective case is helpfully set out in Mr Minette's written submissions, adopted by the offender and not challenged by the Crown. He has three children from previous relationships aged 15, 11 and 6. They reside with their respective mothers. He maintains contact with the children by AVL every weekend. His parents are separated and live in the Fairfield area. He grew up there, attending school to Year 9 and partially completing a glass cutting apprenticeship. He is literate and he has no health problems. He was able to express himself well in evidence today.
He commenced smoking cannabis at age 14, progressed to heroin age 16 or 17 and injecting heroin at 18 or 19. Although he has a limited employment history, he is confident in being able to find work upon his release and he has done many courses in custody to assist him in this. He says he has done every course and program that he is able to.
He attends Narcotics Anonymous and church and is subject to twice weekly urinalysis. As Mr Minette says, it appears to be a mistake, but it's been a favourable mistake because the reasons for him being referred to the compulsory drug treatment program are not clear. In any event, as I have indicated, he made significant progress in the program. It is acknowledged that his prospects of rehabilitation can only be described as guarded at best and he will continue to require significant assistance in doing relapse prevention.
Although he has a lengthy history, as Mr Minette notes, there are no convictions for violent offences other than a matter of robbery at age 16 or 17. He does demonstrate that he can function well while in custody, and undertakes whatever training and rehabilitation courses he can. The risk of becoming institutionalised is one which must figure significantly in the sentencing process.
As the Crown points out, the maximum penalty and the standard non‑period period all are important legislative guideposts in the sentencing process.
As to objective seriousness, I find that each of the offences is below mid-range. They are a typical type of offence committed in these circumstances. In relation to the Thai Recipe, there was some damage to the door when they broke into the premises and pried open the cash register with a screwdriver and took away the scooter. At the Carinderia restaurant, they again broke into the premises and damaged the door, as they did at Jin's Tea House. There was some planning involved as the offenders brought implements to break into the premises and pry open the cash registers. Ultimately, each offence is between low and mid-range, including the No Fail restaurant offence, which he committed alone and broke into the premises using the key that was in the lockbox next to the front door.
He was on conditional liberty at the time of the offending which is an aggravating factor. He was on parole for another break and enter offence. That parole period expired on 11 April 2020. As the Crown points out, in the Court said in Frigiani v The Queen [2007] NSWCCA 81 that the breach of conditional liberty is an aggravating factor regardless of the conduct for which the original sentence was imposed. It is generally considered to be more aggravating when the conduct is similar to that for which the offender is being sentenced. It also is relevant as it casts doubt on the offender's prospect of rehabilitation, but as Mr Minette concedes, they are guarded in any event. His significant criminal history over a period of 20 years, including 24 break, enter, and steals, four larcenies, two possess housebreaking implements and two shoplifting counts are a manifestation of a continuing attitude of disobedience, as such personal deterrence and protection of society are significant matters to be taken into account.
As to the co-offender in three of the offences, Joshua Tarpey, no questions of parity arise as yet, but it's clear that they are, as the Crown submits, equally culpable in the three s 112(2) offences. Ultimately, the Crown refers to R v Zamagias [2002] NSWCCA 17 where Howie J said, at [23], that the Court must consider the objective gravity of the offending balanced against the subjective circumstances of the offender, but it is the first of those considerations that will principally determine which of the available sentencing alternatives the Court should adopt. Of course, protection of the community and specific deterrence are significant matters to be considered here. As Mr Minette put, without minimising the seriousness of the offence, the serious indictable offence of larceny is towards the bottom of the range of serious indictable offences contemplated for the purposes of s 112 and that is a relevant circumstance when considering objective gravity as the Courts said in Norford v The Queen at [34].
As I indicated at the commencement of these remarks, I must, in effect, consider in practical terms the total sentence that would have been imposed for all the offences, and I propose to do so in the following manner:
1. The offender is convicted of each offence.
2. Taking account into a discount of 25% for the plea(s) of guilty, the indicative sentences are:
H146256502
1. Sequence 1 - 2 years, with an indicative non-parole period of 15 months;
H77535286
1. Sequence 2 - 2 years, with an indicative non-parole period of 15 months;
2. Sequence 3 - 2 years, with an indicative non-parole period of 15 months;
3. Sequence 5 - 18 months
1. I impose an aggregate sentence of imprisonment of 3 years, 9 months, to commence on 15 March 2020.
2. I impose a non-parole period of 28 months, expiring on 14 July 2022.
3. I find special circumstances.
4. I refer the offender to the Drug Court for referral to the Compulsory Drug Treatment Correctional Centre.
5. I make the following orders for compensation:
H146256502 Sequence 1
1. I order the offender pay Jing Kang (Jin's Tea House) $1000 compensation.
H77535286 Sequence 2
1. I order the offender pay Carol Coronel (Carinderia Restaurant) $20 compensation.
H77535286 Sequence 5
1. I order the offender pay Lin Jin (No Fail Bubble Tea) $1000 compensation.
Note - These extempore remarks were revised without access to the court file
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Decision last updated: 18 August 2021