R v Stephen Pfuhl; R v Jake Gardiner

Seriousness

1. The offence which each of the offenders has pleaded guilty to is an offence contrary to s 112(2) of the Crimes Act 1900. The maximum penalty for the offence is imprisonment for 20 years. Parliament has prescribed a standard non-parole period of five years imprisonment. These penalties indicate the seriousness of the offence which the offenders committed, as fixed by Parliament, representing their people. The maximum penalty and the standard non-parole period express our community's sense of the seriousness of the offence which each of the offenders committed.
2. Fortunately, there was not any damage to the unit block which the offenders entered or the unit itself and the furnishings of the unit. Mr Coonrod's loss was merely the theft of the items which I have listed.
3. What makes this more serious than a mere stealing is the fact of entering a person's home when the person was within his dwelling. Most persons in our community believe that they have the right to feel secure and unmolested in their own homes and, although Mr Coonrod clearly was not aware of the presence of the offenders in his unit when they were in it, one can understand what he or any other resident of this State would feel when he awoke to find that his unit had been entered, that persons had clearly entered his bedroom, removed items from underneath his bed and taken an item from his bedside table. That would generate a sense of fear, unease and nervousness in remaining in the dwelling in which that person ought to feel secure. That there was a person present in the dwelling is a pleaded element of the offence. It cannot be an aggravating factor.
4. There is the technical aggravating factor of each of the offenders being in company with the other but the significance of that aggravating factor falls away when one realises that being in company is an aggravating factor because two or more people can cause greater alarm and distress to a single victim. When the victim was unaware of their presence the significance of the aggravating factor falls away.
5. In R v Ponfield [1999] NSW CCA 435, a number of factors were identified which enhance the seriousness of an offence of breaking, entering and committing an indictable offence. They included that the offence was the result of professional planning, organisation and execution. This is not such an offence. The offence appears to have been purely spontaneous. The three young men in company sought to visit Chantelle on level 8 of the building and were unsuccessful. However, they noticed the partially open door to Mr Coonrod's unit and then decided to enter it, leading to the theft of Mr Coonrod's possessions. As I said, this would appear to be spontaneous, generated by their discovering the open door to Mr Coonrod's unit.
6. Another factor which enhances the seriousness of an offence was the offender having a prior record of committing like offences. Certainly that is not the position for Mr Pfuhl. Another factor is that the offence was committed in the premises of the elderly, the sick or the disabled. That is not here present. Another factor is that the offence was accompanied by vandalism or any other significant damage to the property. Here there was none. The next factor considered in Ponfield is the multiplicity of the offences but here there is only the one offence. The next factor considered is the offence was committed in a series of repeat incursions into the same premises. That is not here present.
7. The next factor was the value of the stolen property to the victim, whether the value is measured in terms of money or sentimental value. The monetary value of the stolen property is unknown to me. There was no evidence that any of the property had sentimental value. Things such as cards, licences and passports can be obtained afresh. The sum of $170 in cash and coin is not particularly large and iPhones would not be a highly significant item financially to replace.
8. Another factor was that there was actual trauma suffered by the victim but there is no evidence of that here. The final factor considered in Ponfield was whether force was used or threatened but clearly none was used or threatened in this breaking, entering and stealing.
9. The amount of property stolen was not particularly large. Its value does not appear to have been particularly large. There was no suggestion that Mr Coonrod was in any way disadvantaged and there was no victim impact statement from him telling me of any particular distress that he has suffered. However, I must bear in mind the distress which any householder would naturally feel after his home had been violated in this fashion. I am required to consider the objective seriousness of the offence. Bearing in mind the range of offending covered by s 112(2), I would put this present breaking, entering and stealing towards the bottom of the range of objective seriousness.

Personal Circumstances: Pfuhl

1. I turn to consider the circumstances of Stephen Pfuhl. At the time of the offence, the offender was aged 26 years and three months. He is now aged 27 years and nine months. As I have earlier mentioned, he has been in custody since 30 August 2017 for a different offence to which he has pleaded not guilty and I was told from the Bar table that he is due to stand trial for that subsequent charge on 6 May next year.
2. Mr Pfuhl has a minor criminal history. At the age of 16 he was charged with having a false instrument and using a false instrument, for which he was dealt with in the Children's Court by the imposition of a sentence of custody until the rising of the Court. That should be seen as spent, bearing in mind Mr Pfuhl's age at the time. On 23 September 2014, at the age of 29, he was found to have committed an offence of driving a vehicle whilst there was present in his blood or breath an illicit substance. However, for that offence, he was dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999 and entered into a bond to be of good behaviour for a period of six months commencing on 6 May 2015. The fact that no conviction was recorded for that offence must be borne in mind. This minor criminal history does not disentitle the offender to leniency for his participation in this crime.
3. The offender was born in Sydney. His father was of Greek heritage. His mother is of German heritage. His parents separated when he was one year old and the offender has rarely seen his natural father since that time. His father re-partnered and the offender has two half-siblings, one aged 21 and one aged 14, but the histories given in the documents before me do not suggest that the offender has had any significant contact with his half siblings. In other words, the offender's background is one of the absence of his natural father.
4. Unfortunately, the offender's mother had a drug habit. She was a heroin addict and although the histories do not suggest that she has an ongoing heroin addiction, she has an ongoing gambling habit. His mother had a second partner, identified to me as Robert, who was the offender's stepfather for a period of 12 years since the offender was about ten years old, but unfortunately Robert died in 2013. It would appear that Robert did give some guidance, support and nurturing to the offender whilst he was his stepfather.
5. The real effective parent in the offender's life has been his maternal grandmother, Mrs Veronica Pfuhl, who has been present throughout the sentencing hearing. She has been his real source of parental assistance, support and guidance. Mr Pfuhl was interviewed by a clinical psychologist, Ms Anita Duffy, on 26 February 2018. Ms Duffy says this about the offender's relationship with his maternal grandmother, "He regarded his grandmother as the main source of care and affection in his life. He described her as a 'strong woman' who had been an electrician in Germany before they emigrated to Australia after the war and then was employed in the CSIRO. She is now 85 years of age and still a major presence in his life. His mother has brought her to visit him in gaol, but she suffers bad arthritis and the journey is difficult."
6. Mrs Veronica Pfuhl has provided a reference for her grandson. It bears the date 19 October 2017. In it she said this, "Stephen lives in the same unit block as myself. I have played an active part with his upbringing. His mother has issues and was not a reliable parent. He attended a good Catholic high school and did a panel beating apprenticeship. I am very proud of him and what has happened has completely shocked me. Stephen was brought up with high values. I am an active member of St Christopher's Church and [a] practising Christian. Stephen has helped me so much in the past. If I need something done around the place he is there. If I am not well enough to drive to medical appointments, he takes me. The last few weeks have been very difficult for me not having Stephen to help me. I visited him twice in gaol and received two letters. He is sorry for what he has done. He feels really down. He got mixed up with a bad crowd. He is a good person. I love Stephen and will continue to support him whatever the outcome."
7. There is in evidence a short report from a medical practitioner who treats Mrs Veronica Pfuhl. He points out her age and her frailty and points out that the offender, her grandson, has been her usual helper with her daily activities. The medical practitioner asks that special consideration be given to the offender's acting as his grandmother's carer during this sentencing hearing.
8. There is also a reference from the offender's aunt which confirms the offender's place in the Pfuhl family and the assistance which he has given to his grandmother who has been, in essence, his real parent for many years.
9. The offender attended St Jerome's Primary School at Punchbowl and then De La Salle College, Bankstown. He left that college in Year 12 to undertake an apprenticeship. That was a four-year apprenticeship as a panel beater. Also in evidence is a reference from the proprietor of Alexandria Body Works where the offender completed his apprenticeship. That proprietor, Mr Peter Klaritis, said this, "I have always found Stephen to be an honest person of fine character. He displays a high sense of character in everything he does in life. Stephen worked full time for me, starting off as an apprentice panel beater where he had done his time under my guidance for four years. Stephen stayed on for a further year as a tradesman and then decided to move on to another shop. In February 2014 Stephen returned to our business to continue his working career. Stephen continued working with us until 15 May 2017 when we were forced to close our business down due to the end of our lease. I feel that Stephen has made a bad judgment call with the company he was spending time with outside of work that has steered him into this situation. Stephen has love and support from his immediate and extended family that will endeavour to keep to help and support Stephen change to be the best he can possibly become."
10. Given the offender's education and the values with which he was brought up by his extended family and his excellent work history, one wonders how he could have involved himself in this criminal activity. The evidence does provide some clues in that regard.
11. The offender's drug and alcohol history recorded by Ms Duffy is this, "Mr Pfuhl said he commenced drinking alcohol at the age of 17, but was not a huge consumer. He used to be the designated driver for his friends at parties and hotels. He smoked 'ice' from the age of 18 and found it made him more alert and motivated to start work in the mornings. He consumed one or two points a day over several years until 2017 when his usage increased markedly to about half a gram a day. He had inherited money [from his stepfather] and had spent it all by the time he was arrested and charged with this offence. He smoked cannabis from the age of 18 and found that it relaxed him and helped him to sleep after being awake for two days on 'ice'."
12. Like most young men, he experimented with alcohol and drugs. Alcohol appears not to have been any major problem for him, but the use of cannabis and "ice" became a problem when other things became difficult for him in life.
13. When life was stressed he also turned to gambling. The presentence report tells me this, "Mr Pfuhl described that he participated in regular gambling behaviour between the end of 2016 and the beginning of 2017, including the regular use of poker machines. He disclosed that during this time, he would spent thousands of dollars a day and estimates that he spent around $50,000 over several months. Mr Pfuhl advised that he'd received a substantial portion of money from an inheritance from his stepfather. Despite his significant gambling behaviour, Mr Pfuhl denied that the experienced financial hardship and denied that he was motivated to commit the offences for financial gain."
14. The fact that the offender denied committing these offences for financial gain is to his credit. Many offenders who have a gambling habit seek to explain the criminal behaviour by referring to their gambling debts.
15. The offender's life at the end of 2016 and the early part of 2017 was derailed by the failure of a relationship and the imminent loss of his work as a panel beater with Alexandria Body Works. According to Ms Duffy's report, the offender had a significant relationship with a young lady which commenced in 2010. He moved to live with her and her mother at a property in Roselands. At one stage the young lady fell pregnant and this was unanticipated by either her or by the offender. The offender was prepared to bring up the child and to settle down with the child's mother but she did not reciprocate those feelings. She underwent a termination of the pregnancy without discussing it with him and that caused him hurt in that she was not willing to commit to a more enduring relationship with him and that she did not consult him about the proposed termination until after it had occurred. Following that, there were arguments between the couple and they separated and the offender moved back to live with his mother and described himself as "heartbroken". This separation appears to have been around 2014 but the offender did not form any subsequent relationship of significance.
16. According to Ms Duffy's history, after the separation he began to go to clubs more frequently than he had in the past and would often go with his mother and gamble with her. This led to his associating with a group of people who used drugs and brought him into the company in which he was at the time of his offending. The precipitant was not the breakdown of his relationship but distress about the loss of his job.
17. Since being in custody, the offender has remained drug and alcohol free. In a letter to me, which is exhibit 9, he commences thus, "How slowly time passes as I am within the confines of my cell. Yet this time allows me to reflect as to why I am here. I have had time for self-reflection and I know that as a result of this I am definitely a better person."
18. The letter goes on to express movingly both remorse, regret and apology. The letter itself is not replete with remorse for the distress he caused his victim but I accept that there is true victim empathy. It is set out movingly in the pre-sentence report. The first part of the letter that the offender wrote to me reflects what could be described as correctional history. The first "modern" gaols which were established in England were known as penitentiaries and they were to permit people to sit in the confines of their cells and repent of their offending behaviour. This is what the offender has done.
19. I accept that he is truly remorseful. I accept that he is unlikely to reoffend given his experience since being incarcerated, albeit that he is incarcerated for a different offence. He has had time to reflect on how his life has gone astray and is determined to improve himself and to make up to his family for distress that he has caused them.

Consideration

1. Bearing in mind both the offending conduct and the offender's personal circumstances, his history, how he came to be involved in this offending conduct, I believe that the appropriate starting point in the sentencing exercise is a term of imprisonment of three years. I reduce that by 25%, as conceded by the Crown, for the utilitarian value of the offender's plea of guilty and which also reflects the admissions he made in his electronically recorded interview and the contrition and remorse shown by entering the plea itself. That reduces the head sentence to two years and three months.
2. There are, in this case, special circumstances for breaking the statutory nexus between the head sentence and the non-parole period. This, of course, is the offender's first custodial sentence. First custodial sentences are often difficult because an offender has to make major structural differences in his life and lifestyle in order to comply with the prison regime. Another special circumstance is the need of the offender's grandmother for his assistance and another special circumstance is the need to have a lengthier period on parole so that the offender can be assisted in his resolve to remain abstinent of illegal drugs by assistance from Community Corrections. I have come to the view that that the appropriate non-parole period is one year and three months and the period in which the offender will be eligible for parole is one year.
3. A question hotly debated yesterday with the Crown prosecutor was when the sentence ought commence. I am firmly of the view that the sentence should commence when the offender was taken into custody on 30 August 2017. As I have already mentioned, he was not taken into custody for this offence but for another offence to which he has pleaded not guilty. The presumption of innocence must be observed. The offender may not be found guilty of the fresh charge. In those circumstances, the time that he has been in actual custody should be taken into account in this sentencing hearing. I intend to commence the sentence on 30 August 2017. If my mathematics be correct, which is always problematical, that means he should become eligible for release to parole on 29 November 2018 and the head sentence will end on 29 November 2019.
4. It may be that after that, in light of my finding as to when he ought be released to parole, those acting for him may seek to have him placed on bail in respect of the offence which he intends to defend.

Personal circumstances: Gardiner

1. I turn now to the personal circumstances of Jake Gardiner. His personal circumstances are not as well documented before me as are those of Mr Pfuhl. Mr Gardiner was aged 21 years and four months at the time of the offence. He is now aged 22 years and eight months.
2. The offender's mother, Ms Kylie Jennings, gave evidence before me. She has seven children. The offender is the third eldest. He has two older sisters and four younger brothers. The next son chronologically is Zach who is 19 years of age. His three other brothers are half-siblings, his mother having re partnered. It appears from what Ms Jennings told me, that her second partner, the offender's stepfather, has in fact acted as the offender's father since he was about five years old. The offender was born in Deniliquin and the family moved to Hay when the offender was three years old. He commenced attending Hay Primary School. When the offender was about nine years old the family moved to Sydney. He then attended Penshurst Public School, then Hurstville Boys High School until Year 9 and completed his Year 10 studies at the YMCA.
3. Gardiner has previously appeared before and been sentenced by my colleague, Berman DCJ. The offender appeared before his Honour for an offence of entering a dwelling house with intent to commit larceny in circumstances of aggravation, the circumstance of aggravation being that there was someone in the home at the time. The offence was committed at Cronulla. It is somewhat similar to the current offence but that offence did not involve any breaking. At the same time, the offender asked Berman DCJ to take into account a number of other offences including larceny of property taken from the same dwelling house at Cronulla at the same time and three credit card offences for relatively trivial monetary sums. His Honour recorded this, "He began using drugs from about the age of 12 when he started with cannabis. He progressed to using ice at 14 and moved on to Xanax at 15. Not surprisingly, given that his mother and her partner, the offender's stepfather, have four younger children, they asked him to leave their home. After all, they had to protect their younger children. Once they did that, the offender's desire to obtain drugs was influenced by the people that he was associating with on a daily basis."
4. His Honour went on to record that that led the offender to committing a number of offences including the offences with which his Honour was concerned.
5. Significantly, his Honour commenced his remarks on 14 December 2016 with this, "Anyone who has spent much time in these Courts would know the awful effects that drugs have on the users of them. Those effects were well expressed by the offender, Jake Gardiner, and his mother in court today. Many drug users become focussed on only one thing, themselves. In their desire to obtain drugs they become, whilst they are using drugs, most unpleasant people who think nothing of their loved ones and abuse those for whom they should care."
6. That has also, alas, been my experience.
7. His Honour was initially impressed by Mr Gardiner and expressed the view that a sentence of two years or less would be imposed and he believed the offender ought be assessed for the imposition of an Intensive Corrections Order. He granted bail to the offender and adjourned the sentencing hearing until 3 March 2017. However, his Honour next dealt with the offender on 17 November 2017. His Honour said at [3], "Impressed by Mr Gardiner as I was, I granted him bail and ordered that he be assessed for his suitability to serve a sentence of imprisonment by means of an intensive correction order. Mr Gardiner simply failed to comply with my order. He did not contact Probation and Parole Service, they could not find him, and so when the matter came back before me he did not appear and I issued a warrant for his arrest. He was at liberty for some time before he was arrested. He now appears before me to be sentenced for his offending."
8. His Honour clearly formed a different view of Mr Gardiner on 17 November 2017 to that which he had formed on 16 December 2016. His Honour passed a sentence of three years imprisonment but found special circumstances and fixed a non-parole period of 18 months commencing on 17 February 2017 and expiring on 16 August 2018. His Honour backdated his sentence for a little over five months to account for custody referable to the offence for which the offender stood for sentence before his Honour. That period of imprisonment included the offender's 20th birthday. He has now been in prison from 13 July 2017 which has included his 22nd birthday.
9. The offender's criminal history commenced when he was 19 years old. He was charged with a drug offence and property offences on 10 August 2015. Originally he was dealt with by s 9 bonds but he broke those bonds and, on a call up, was fined and placed on longer s 9 bonds. However, he broke those bonds as well and was eventually sentenced to imprisonment. He was charged with further offences on 30 September 2015, offences involving property and the carrying of weapons and housebreaking implements and eventually was sentenced to imprisonment for eight months for those offences. He was charged with further offences on 14 December 2015, of dishonestly obtaining financial advantage by deception and having goods in custody suspected of being stolen. Eventually he was sentenced to imprisonment for 12 months with a nine month non-parole period but on appeal to this Court the non parole period was reduced to six months. He was also charged with offences on 1 October 2015, a drug offence and another goods in custody offence, which also led to prison sentences after the breach of bonds. There are another set of offences charged on 17 November 2015 of a similar nature to others.
10. The offender's criminal history allows me no avenue to exercise any leniency on the offender's part. Significantly, however, since being in custody the offender completed an EQUIPS addiction program conducted by Corrective Services on 6 June 2018 which is a step forward in the offender's attempt to rehabilitate himself. I understand that he has been free of drugs and alcohol essentially since his incarceration which commenced on 13 July 2017.
11. The change brought about by the offender's giving up illicit drugs has been remarked upon by his mother in the evidence that she gave to me yesterday. She and her husband are prepared to have the offender return to live with them. His stepfather is prepared to employ him in his business as a painter, essentially to give the offender the job of a painter. The offender's mother and stepfather have discussed with the offender doing drug rehabilitation whilst living with them and they are happy for that to occur and they want it to occur. Clearly there has been a change for the better in the offender's outlook since he last appeared before Berman DCJ.
12. I should have mentioned that his Honour's remarks on sentence can be found at [2016] NSW DC 402 and [2017] NSW DC 409.

Consideration

1. Parity principles, however, must also be considered. Mr Gardiner may feel wronged if the sentence passed upon him be greater than the sentence passed upon Mr Pfuhl. Their criminality was much the same, albeit that their personal circumstances were quite different.
2. I have been addressed at some length by learned counsel for the offender about the prospect of the offender's becoming institutionalised by being in gaol for too long. However, the offender is still a young man, young men are much more resilient than older men. Those that I have seen that have been institutionalised are generally men in their 40s and 50s, not men who are in their 20s. The offender has spent a significant period of time in gaol to date. There were 11 months in 2016 and he has now been in custody for some 15 months. Theoretically, bearing in mind the difference in personal circumstances, Gardiner's sentence should be longer than that of Pfuhl but, bearing in mind parity principles and bearing in mind the offender's prior custodial history, I believe that I should pass the same sentence upon Gardiner as I am to pass upon Pfuhl. However, it has been submitted to me on the offender's behalf that the "time served" in custody since 13 July 2017 would be an adequate custodial sentence and that the offender should be released from custody now. I am unable to accede to that submission. To do so would indicate that the offender's criminal behaviour on this occasion only required a sentence of imprisonment of some two months with a lengthy period on parole.
3. It was submitted on behalf of the offender that if he had stood for sentence before Berman DCJ in November of last year for this offence there may have been almost concurrent sentences. I cannot agree. The offending on each occasion was at a different place, at a different time, in different circumstances, with different victims. However, there may have been some accumulation but, in my estimate, that would have only been minor.
4. I intend to backdate the sentence for this offence to one month before the offender became eligible for parole pursuant to the orders made by Berman DCJ so that the sentence will start on 16 July 2018. That will pragmatically allow me to think of the sentence as not being one year and three months but one year and two months and providing a non-parole period of one year and one month to reiterate what was said by and found by Berman DCJ in 2017.
5. There has been, as I said, a significant change since 2017, the fact that the offender has done his best to rehabilitate himself and has persuaded his family to take him back in, persuaded his mother and stepfather that he has turned his life around and continues with that determination. Such determination can be challenged when in the community without the constraints of Corrective Services and therefore a lengthy period of supervision by Community Corrections is called for.
6. Are those reasons adequate for your purposes, Ms Rogers?
7. ROGERS: Yes, your Honour.
8. HIS HONOUR: And for you?
9. PUNJABI: No submissions.
10. HIS HONOUR: And for you?
11. HOPLEY: Yes, your Honour. Could I just ask you--
12. HIS HONOUR: I haven't passed any sentences yet.
13. HOPLEY: Yes, okay, excellent. Thank you.

Sentences

1. HIS HONOUR: Stephen Pfuhl, on the charge that on 8 May 2017 at Alexandria in this State you did break and enter the building at 2 Mandible Street, Alexandria, and then in unit 801 of the said building you did commit a serious indictable offence, namely larceny, in circumstances of aggravation, namely that you knew that there was a person present within the said unit, you are convicted. I sentence you to imprisonment. I set a non-parole period of one year and three months, commencing on 30 August 2017 and expiring on 29 November 2018. I impose a further period of imprisonment of one year to commence upon the expiration of the non-parole period and expiring on 29 November 2019. The total sentence is therefore two years and three months comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period.
2. Mr Pfuhl, as far as I am concerned, you should get out of gaol on 29 November 2018. Whether that can happen or not will depend upon whether your solicitor can get bail for you on the other matter.
3. Jake Keith Anthony Gardiner, on the charge that on 8 May 2018 at Alexandria in this State you did break and enter the dwelling at 2 Mandible Street, Alexandria, and then in unit 801 of the said building you did commit a serious indictable offence, namely larceny, in circumstances of aggravation, namely that you knew that there was a person present within the said unit, you are convicted. I sentence you to imprisonment. I set a non-parole period of one year and two months commencing on 16 July 2018 and expiring on 15 September 2019. I impose a further period of imprisonment of one year and one month to commence upon the expiration of the non-parole period and expiring on 15 October 2020. The total sentence is therefore one year and three months comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period.
4. Unfortunately for you, Mr Gardiner, that means another 11 months but I hope it works out well for you.

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