R v Turkmani

Approach to Sentencing

1. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
2. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.
3. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.
4. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 147.

Facts

1. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.
2. In July 2020, police established Strike Force Leewood to investigate several break and enters of commercial businesses. Police identified the offender, who was 43 years old at the time of the offences and the co-offenders, Jack Kemp and Steven Barber. They were lawfully monitored using telephone intercepts, listening devices and physical surveillance.
3. The offences were committed between 2 July 2020 and 21 May 2021 as follows: Kemp and Turkmani 15 September 2020 Break and Enter IGA East Lindfield Turkmani 12 April 2021 Break and Enter Newsagency Chatswood Kemp and Turkmani 17 May 2021 Larceny in Roseville Kemp and Turkmani 17 May 2021 Break and Enter Cellarbrations Turramurra Kemp and Turkmani 17 May 2021 Break and Enter BWS Oakhill Kemp and Turkmani 19 May 2021 Attempted take and drive conveyance at Hornsby Kemp, Barber and Turkmani 20 May 2021 Take and drive conveyance at Lidcombe Kemp, Barber and Turkmani 21 May 2021 Break and enter IGA Bateau Bay

1. On 2 April 2021 a listening device was lawfully installed in an Audi motor vehicle registered to Mr Kemp (the Audi).

IGA East Lindfield - 15 September 2020 (Seq 1)

1. At about 2.30am on 15 September 2020, Mr Kemp and Mr Turkmani used a pinch bar to gain access to the IGA Supermarket at East Lindfield. They entered and took approximately $22,000 worth of liquor, about $40,000 worth of cigarettes and $1,500 in cash from a safe in the back office.
2. At 12.17pm on that day, a telephone call between Mr Kemp, Mr Turkmani and Mr Barber was recorded in which the offenders told Barber about committing the offence. At the time, Mr Barber was in custody.

Chatswood Mall Agency - 12 April 2021 (Sequence 2)

1. At around 1.15am on 12 April 2021, Chatswood Mall Newsagency was broken into.
2. At 3.19am, Mr Turkmani walked behind the counter and put on dark gloves. He took off his backpack, crouched down and opened the cabinets containing cigarettes. He took 736 packet of cigarettes worth approximately $29,440.

Mount Druitt - 14 April 2021 (Sequence 3 - Form 1)

1. At about 3.30pm on 14 April 2021, Mr Kemp arranged to meet a person who owned a tobacco shop in Mount Druitt and told the person that he was five minutes away. In fact, he was at St Ives and he called Mr Turkmani to arrange for him to attend. He told Mr Turkmani in this phone call to see if he could get "some more" for the "Winnies", referring to the Winfield brand of cigarettes, one of the products stolen from the Chatswood Newsagency. At the time, Mr Turkmani was conducting surveillance of the tobacco shop.
2. Mr Turkmani entered the shop carrying a large box and exited a short time later carrying only a plastic bag. The bag was filled with cash which had been exchanged for the stolen cigarettes.

Roseville - 17 May 2021 (Sequence 4 - Form 1)

1. On 16 May 2021, Mr Turkmani and Mr Kemp were recorded on the listening device in the Audi planning the offending that night. Mr Turkmani said "let's go fishing" and Mr Kemp said, "we go tonight".
2. At around 12.00am on 17 May 2021, Mr Kemp and Mr Turkmani drove around in the Audi in Roseville looking for number plates to steal. They took number plates from a vehicle parked in Dudley Street, Roseville and placed them on the Audi.

BWS Oakhill - 17 May 2021 (Seq 5)

1. At about 1.30am on 17 May 2021, Mr Kemp and Mr Turkmani drove in the Audi to BWS at Oakhill. Mr Kemp had travelled to this location in the middle of the night on two occasions in the week leading up to 17 May 2021 to perform reconnaissance.
2. At 1.37am, both men exited the vehicle and attempted to break into the BWS. They forced the rear security grill door open and damaged, but did not open, the solid timber door, which set off the alarm.
3. When they returned to the Audi, they spoke about needing a better plan for the next time. They claimed that they would return on another date with different tools and a new technique.

Cellarbrations Turramurra - 17 May 2021 (Sequence 6)

1. After failing to access the Oakhill BWS, Mr Turkmani and Mr Kemp continued to drive in the vehicle displaying the stolen registration plates. Mr Turkmani stated, "We're dressed, we're ready. Just fucking go hit it and get the fuck out of here". Mr Kemp stated, it feels better when I work one out, I know what to do and you know what to do…I know the routine when it's me and you".
2. On 12 May 2021, tracking and listening devices had recorded Mr Kemp driving to both Oakhill BWS and Cellarbrations Turramurra for the purposes of undertaking reconnaissance.
3. At 3.44am on 17 May 2021, Mr Kemp and Mr Turkmani broke into Cellarbrations Turramurra, damaging the door. Both men had partial face coverings and wore hooded jumpers and gloves. They smashed the security alarm system with a tool. They forced a cabinet behind the counter open and emptied its contents into the bin. They stole more than $6,000 worth of tobacco products.

Mount Druitt - 17 May 2021 (Sequence 7 - Form 1)

1. At about 12.00pm on 17 May 2021, Mr Kemp and Mr Turkmani travelled to TSG Tobacconist at Mount Druitt. They sold the stolen cigarettes to the owner of the store and received money from the sale.

Hornsby - 19 May 2021 (Sequence 8 - Form 1)

1. Around 12.00am on 19 May 2021, Mr Kemp picked up Mr Turkmani from his residence in Chatswood. They travelled to Hornsby where they tried to find a vehicle to steal. They ultimately attempted to steal a vehicle parked at Leighton Place but were unsuccessful as they had the wrong screwdriver and could not remove the steering column.

Take and Drive Conveyance - 20 May 2021 (Sequence 9)

1. On 20 May 2021, Mr Kemp picked Mr Barber up from his residence at around 6.20pm. Mr Barber yelled, "Back in business". They drove around numerous locations searching for a vehicle to steal.
2. At 8.28pm, Mr Kemp and Mr Barber stole an Isuzu truck parked in the driveway of a business in Lidcombe. They travelled in convoy to North Ryde where they secreted the truck. Mr Barber got back into Mr Kemp's vehicle and they drove towards Mr Kemp's residence. They called Mr Turkmani. Mr Barber joked over the telephone that the three men were "the threesome, the A-Team". Mr Kemp stated, "one out we go okay, but together we are the A-Team…the three of us - unbeatable". They picked up Mr Turkmani and travelled back to where they had left the truck. Mr Turkmani drove the truck in convoy with Mr Kemp and Mr Barber in the Audi to Bateau Bay.

Bateau Bay IGA - 21 May 2021 (Sequence 10)

1. At around 1.00am on 21 May 2021, Mr Kemp, Mr Barber and Mr Turkmani travelled to Curzon Road, Bateau Bay, where Mr Turkmani parked the stolen truck and re-entered the Audi. Mr Kemp explained where the front door of the IGA was and where the CCTV cameras were located.
2. At around 2.00am, the stolen truck was parked at the entrance to the IGA.
3. Mr Turkmani and the two co-offenders entered the IGA, hooded and masked and stole cigarettes. They loaded cigarette cabinets, worth in excess of $150,000 into the truck.

Sequence 13; Sequence 14 (Form 1)

1. At around 2am on 21 May 2021, an off-duty police officer (the officer) was in the vicinity of Cresthaven Shopping Centre in Bateau Bay when he heard an alarm, followed by loud banging noises and loud voices. He drove towards the Shopping Centre.
2. The Audi was backed up against the front doors of the IGA. The truck drove through the car park onto Curzon Avenue. The officer followed the truck onto Peak Street, where Mr Turkmani exited the driver's door and faced the officer's direction. The officer saw what he believed to be a black shotgun in Mr Turkmani's hand. Fearing that the offender was going to use the shotgun, the officer began to reverse back down Peak Street. Mr Turkmani climbed into the truck and reversed towards the officer, stopping the truck about 10 metres away from the officer and then driving forward again along Peak Street.
3. The officer pursued the truck. Mr Turkmani began to drive towards the officer on the opposite side of the road. The officer performed multiple u-turns to avoid a collision. Mr Turkmani ultimately drove the truck towards the officer and without braking, collided with the rear nearside door of his vehicle. The officer's vehicle spun around and because of the impact, he felt pain to the left side of his body and was short of breath. Mr Turkmani continued driving in a south-easterly direction along Thomas Mitchell Drive and turned left into Mort Street. The officer followed the truck to the Hume Highway, where Mr Turkmani stopped the truck at the rear of a bakery on Hume Boulevard, exited the vehicle and ran down a small reserve. The officer followed him, and Mr Turkmani confronted him with a long-handled axe and said, "Just fuck off". The officer, in fear of his safety, returned to his vehicle and drove out of the vacant lot. Mr Turkmani walked back to the truck and drove it east along Hume Boulevard.
4. Search warrants were executed at the residences of each accused on 25 May 2021. They were all arrested on this date.

Sentencing Assessment Report

1. The Court received a Sentencing Assessment Report dated 13 October 2022, which can be summarised as follows.
2. Mr Turkmani is a 45-year-old man who resides in stable accommodation with his mother and sister in the Chatswood area. He has the support of his immediate family members despite the current proceedings.
3. He has been unemployed for 10 years and is in receipt of Centrelink benefits.
4. He has similar offences on his criminal record dating back to 1996.
5. The offender told the author of the Report that he was under the influence of methamphetamine at the time of the offences and reflected on how this may have influenced his decision-making capabilities. The author opined that he exhibited little insight into the impact of his offending behaviour on the victims and the community. He told the author of the report that, "I wasn't thinking about anyone but my addiction" and that "this isn't right".
6. Mr Turkmani has a history of illicit substance abuse. He first used heroin when he was 25 years old. He ceased using heroin at age 30, when he started using cocaine twice per week. He then replaced cocaine with methamphetamine. He reported daily use at the time of the offending. He ceased methamphetamine use when he entered a residential rehabilitation centre in December 2021. He attributed his offending to needing to fund his methamphetamine use.
7. He expressed willingness to engage in intervention such as drug and alcohol counselling and financial counselling. He completed a residential rehabilitation program on 7 October 2022.
8. He expressed willingness to undertake community service work, but he was assessed as not suitable to do so by Community Corrections due to injuries caused by a motorcycle accident.
9. He was assessed as at a medium risk of re-offending.

Offender's Case on Sentence

1. The offender tendered the following documents: 1. Wayback Discharge Notice; 2. reference from AOD counsellor Michelle D'Silva dated 7 October 2022; 3. psychiatric report of Dr Gerald Chew dated 2 September 2022; 4. letter from Khadir Alnimer (employer) dated September 2022; 5. letter from Ronia Turkmani (sister) dated 24 October 2022; 6. letter of Mr Turkmani dated 26 October 2022; 7. email from Ms D'Silva dated 26 October 2022; 8. letter from Mr Alnimer dated 22 May 2023; 9. letter from case manager at Drug Health Services, Blacktown Opioid Treatment Program dated 18 May 2023; 10. drug test results from 11 November 2022, 17 March 2023 and 12 April 2023.
2. The following is a precis of the evidence relied upon by the offender.
3. The offender was born and raised in Australia. His parents are of Lebanese Muslim cultural heritage. His faith is important to him, and he remains a practicing Muslim. His mother is still alive, but his father passed away 10 years ago.
4. He has two sisters and a brother. His brother passed away from COVID-19 whilst the offender was in custody for the current offence. The offender was devastated by this, as he was particularly close with his brother. He was unable to attend the funeral.
5. The offender completed Year 10 and repeated Year 11. When he left school, he worked in smash repairs, towing and demolition.
6. The offender had a motorbike accident in 2006. The injuries he sustained prevented him from working regularly. The offender had a second serious motorbike accident about 10 years ago. He lost consciousness and woke up in hospital a few days later with a few days of post-traumatic amnesia. He had a broken pelvis, leg and tibia. He spent three weeks in Intensive Care. He experienced multiple joint re-infections and spent a number of years in and out of hospital.
7. Following the motorbike accident in 2006, the offender developed a heroin addiction after using it to manage his pain as he was unable to legally access adequate pain relief. He used 1-3 grams of heroin per week intravenously or by smoking. He also drank opium in tea. He started using methamphetamine in around 2008, using between 1-5 grams per week. The offender used cocaine between 2004 and 2012, consuming around 7 grams on the weekends. He reported minimal alcohol use. He has smoked 20 cigarettes per day for about 20 years.
8. The offender attended Wayback Drug and Alcohol Rehabilitation Program from 9 December 2021 to 8 October 2022. This Program consists of individual counselling, psycho-education group sessions and living skills programs. Participants in the program are provided with supported accommodation and participants must comply with conditions of residency, including a curfew. No visitors are permitted in this accommodation. There are no restrictions on travel within Sydney unless set out in the participant's bail conditions. Participants are also required to provide supervised urine samples each Monday and Friday to monitor drug use.
9. Ms D'Silva noted in his Discharge Notice that the offender completed the nine-month program and was well engaged throughout. Participants in the program are given "demerit points" if they miss a session. The offender completed the program without any demerit points. He received an Achievement Award on 24 February 2022 for his commitment to the program. He was also chosen to engage in the "Buddy Program", which pairs successful participants with another participant who may struggle with transitioning or settling into the community. The offender's main role was to provide positive support through friendship and organise activities to engage in. He only had one suspension during his nine-month program. Ms D'Silva found that he was proactive in preparing for his transition into the community. He also participated in the "Give Back" program, where participants do work on the rehabilitation centre. The offender painted the accommodation in the Centre at least one day per week for the duration of the program. When he had time, he would do this three days per week. Towards the end of the rehabilitation program, he commenced working part-time.
10. The offender wrote in his letter to the Court that his time in rehabilitation at the Wayback Centre had changed his life.
11. He is currently on opioid agonist therapy, with a monthly injection of Buvidal. He also has regular case management meetings with his case manager and regularly provides urine samples for drug testing. Drug tests provided in November 2022, March 2023 and April 2023 returned negative results for illicit substances.
12. At Wayback Centre, the offender was treated for depression, after having depressive symptoms since the death of his brother. He remains on medication to treat his depression.
13. The offender has been working for Sydney Group Plumbing Solutions as a labourer. Since the beginning of 2023, he has been working six days per week from 7am to 5-6pm. Mr Alnimer spoke highly of the offender's understanding of the plumbing trade, his attention to detail and adherence to work health and safety procedures and reported that the offender has taken on additional responsibilities.
14. Dr Chew opined that the offender met diagnostic criteria for severe Substance Use Disorder (Opioids, Amphetamines and Tobacco) and also a depressive disorder in remission on treatment, and that his Substance Use Disorder likely clouded his judgment and contributed to the offending. Dr Chew also opined that he may have a mild Acquired Brain Injury as a result of his motorbike accidents and recommended formal neuropsychological testing.
15. The offender expressed remorse to Dr Chew and his sister, and in his letter to the Court. He also recognised the impact of his offending on the victims and expressed shame for his offending.
16. The offender's most recent drug screen tests for October and November 2023 are negative. He has continued working for Sydney Group Plumbing Solutions and taken on a supervisory role. He has engaged a psychologist to assist him with his symptoms of anxiety and depression. His general practitioner has placed him on a mental health care plan and has prescribed him medication to treat these symptoms.

Objective Seriousness

1. The guideline judgment of R v Ponfield (1999) 48 NSWLR 327 is relevant to the assessment of sequences 1, 2, 5, 6 and 10: R v Miller [2015] NSWCCA 86 at [61].
2. The offences were committed when persons were unlikely to be present and not at residential premises. The serious indictable offence committed was larceny. The aggravating circumstance was that the offenders were in company.
3. The value of the property taken was $63,500 for sequence 1, $29,440 for sequence 2, $6,000 for sequence 6 and in excess of $150,000 for sequence 10. The offender did not gain access to the premises in sequence 5.
4. There was damage sustained to the premises in sequences 5 , 6 and 10.
5. There was some planning involved in the offences including that the offenders were in company, they undertook reconnaissance of the target premises, they wore clothing to disguise their identity, took equipment to be used to gain access to the premises and used stolen numberplates and vehicles to avoid detection.
6. For sequence 9 the offender drove the stolen truck from North Ryde to Bateau Bay. He knew that the truck had been stolen by the co-offenders with the intent to use it for criminal activity.
7. Sequence 13 involved the use of the truck to avoid lawful detention. The offender deliberately drove the truck at the officer's vehicle and collided with it. The offender's attempts to avoid lawful apprehension took place over some time and involved the officer taking evasive action on a number of occasions. The officer suffered some injury and feared for his safety. There was damage sustained to the officer's vehicle. There was some risk to the public.
8. I have had regard to the maximum penalty for the offences and the applicable standard non-parole periods.

Deterrence

1. General deterrence is of significance to the offences before the Court. One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offender and other persons intending to commit similar crimes that they will meet with appropriate punishment.
2. General deterrence may be afforded less weight where a person suffers from a mental condition because the person is not an appropriate person to be made an example of. In this case, the offender suffered from a severe substance use disorder that clouded his judgement and was causally related to the offending conduct. His drug addiction arose following serious motorbike accidents after which he could not adequately control his pain through legally accessed drugs, and it can be considered as a mitigating factor. In all of the circumstances, his moral culpability for the offences is reduced.
3. There is some need for specific deterrence but it is substantially reduced. The offender has a criminal history that reflects his difficulties with drug addiction. On the other hand, he has responded to this by taking extensive steps to achieve rehabilitation from drug use, which I am satisfied has been very successful.

Aggravating Factors

1. The offender has a record of prior convictions but not enough to satisfy the aggravating factor provided for by s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999. His record disentitles him to leniency to some extent.

Mitigating Factors

1. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated by successfully completing residential rehabilitation and reintegrating into the community that he has excellent prosects of rehabilitation.
2. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. By his conduct, the offender has accepted responsibility for his actions and he has expressed remorse to Dr Chew, his sister and to the Court. I am satisfied that he is genuinely contrite.
3. The offender served a period of pre-sentence custody of 199 days before he was released on bail to undertake residential rehabilitation. Thereafter he was the subject of strict bail conditions for an extended period.
4. I am satisfied that the offender's time in custody was more onerous by reference to the restrictions imposed on prisoners in New South Wales in response to the COVID-19 pandemic.

Penalty

1. Bassam Turkmani is convicted.
2. I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied after considering all other alternatives, that no sentence other than imprisonment is appropriate.
3. I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty and Form 1 offences are: Sequence Offence Indicative Sentence H80334922 1 Break, enter and steal in company (IGA East Lindfield), contrary to s 112(2), Crimes Act 1900 2 years and 2 months with a non-parole period of 13 months 2 Break, enter and steal (Chatswood Newsagency) contrary to s 112(1)(a), Crimes Act 1900 12 months 5 Attempted break and enter (BWS Oakhill), contrary to s 112(2), Crimes Act 1900 12 months with a non-parole period of 6 months 6 Break, enter and steal in company (Cellarbrations Turramurra), contrary to s 112(2), Crimes Act 1900 20 months with a non-parole period of 10 months 9 Take and drive conveyance (Lidcombe CC3 9Pl), contrary to s 154A(1)(a), Crimes Act 1900 6 months 10 Break, enter and steal in company (IGA Bateau Bay), contrary to s 112(2), Crimes Act 1900 2 years and 3 months with a non-parole period of 15 months 13 Use offensive weapon to prevent lawful detention, contrary to s 33B(1)(a), Crimes Act 1900 2 years

1. The appropriate aggregate sentence is 3 years, which will be reduced to take into account the offender's pre-sentence custody.
2. I impose an aggregate sentence of imprisonment of 2 years and 6 months.
3. I have had regard to s 66 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that it is appropriate to order that the sentence be served by way of an Intensive Corrections Order (ICO), for the following reasons.
4. The offender presents very little risk to community safety. He has completed residential rehabilitation and is managing well in the community. I am satisfied that the extent of his rehabilitation is a protective factor for the community: R v Zamagias [2002] NSWCA 17 at [32] (Howie J).
5. Out of the two options of sending him back to prison or imposing an ICO, I am satisfied that the protection of the community will be best achieved by the offender serving the sentence in the community by way of an ICO: Mandranis v R [2021] NSWCCA 97 at [51].
6. An order that the sentence be served by an ICO will make the offender accountable for his actions. An ICO is a sentence of imprisonment that will significantly impact on the offender's freedom and will reflect the seriousness of the offending conduct and the harm done to the victims and the community.
7. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (15 November 2023) and expire on 14 May 2026.
8. The offender must report to St Leonards Community Corrections on or before 4pm on 22 November 2023.
9. The standard conditions of the order apply: 1. the offender must not commit any offence; and 2. the offender must submit to supervision by a Community Corrections Officer.
10. The following additional conditions apply: 1. the offender must not take any restricted or prohibited drug unless prescribed by a medical practitioner.
11. If the offender fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or a revocation of this order. If the order is revoked, the offender may be required to serve all or some of the period of the sentence in full time custody.
12. The offender must attend the Registry to confirm his residential address so that a copy of the order can be posted to him.

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: 17 November 2023