R v Warren

Facts of the offending

1. The facts are agreed and are as follows. The offender and a co‑offender, Ms Evans, had been in a relationship since June 2016 and had been living in North Richmond. On 9 February 2018 Ms Evans hired a Kia Cerato; she later extended the hire of the vehicle up until 3 March 2018. At about 9.30am on 6 February 2018 the occupant of 14 Guardian Crescent, Bligh Park left her home. Before leaving her premises the occupant had secured them. These facts relate to the sequence 1 offence. Between 9.30am and 12.50pm the offender attended the premises and removed a flyscreen from the side veranda window. He smashed the window, entered the house and opened the cupboards and drawers in all three bedrooms of the premises. He left the premises without taking any property. When the occupant returned later that day she found that the premises had been broken into and contacted the police; no property was missing.
2. At about 1.55pm on 14 February 2018, and this relates to the sequence 19 attempt offence, the occupant of 20 Perkins Drive, Kellyville, was in the bathroom of her home when she heard the front door bell ring followed by a loud knock. The occupant walked to the front door about a minute later but could not see anyone there. She then heard a noise coming from the rear of her property and immediately walked in that direction. As she was walking through her kitchen she saw the offender through her kitchen window. She approached him and saw that he was trying to jemmy her back sliding door open with some sort of tool. As she got closer the offender looked up at her and immediately ran away and she called the police, hence it is an attempt.
3. The offence on the form 1 concerns the facts that now follow and they are that at about 7am on 14 February 2018 the occupant of 1 Sydney Joseph Drive, Seven Hills left his home; he secured his home before he did so. Between 7am and 4pm the offender was driven to the premises by the co‑offender in the hired vehicle; she remained in the car while the offender broke into the premises by forcing the front screen and main door open. The offender rummaged through the living room, study and bedrooms of the home; he stole property to the value of $4,000 before returning to the co-offender. At about 4pm the occupant returned home and found his front door open and jemmy marks on the frame. He contacted police before inspecting his house. He then noticed a small safe containing two passbooks, a birth certificate, a hard drive, two sets of car keys, $200 in cash, a cream coloured leather wallet and several other keys were missing from his wardrobe. A Sony PlayStation 4, a red PlayStation controller, a Nintendo Switch and a Nintendo 2DS, a Dell laptop with his name on it and an Asus laptop were all missing. There were also some games and DVDs stolen. At 5pm the co‑offender attended the Cash Converter store at Warwick Farm and sold a PlayStation 4, a red PlayStation 4 remote control and a Nintendo Switch. She received $200 for the property and the relevant serial numbers matched up to the stolen items.
4. The following facts relate to another matter on the form 1. At about 7.45am on 22 February 2018 the occupant of 649 Grose Valley Road, Grose Vale left his home and he too secured his premises before doing so. Between 7.45am and 6.15pm the co-offender drove the offender to the premises; he forced entry into the house via the ground floor rear glass sliding door while the co-offender remained in the vehicle. Whilst inside the location the offender entered the main bedroom and removed an Apple iMac computer valued at $2,889, a collection of Australian one dollar notes bundled in original tape and various jewellery items. He then returned to the hire car with the property. The occupant returned to his home at about 6.15pm the following day and noticed immediately that his house had been broken into and contacted the police. On 8 March 2018 he attended Windsor Police Station and identified his Apple iMac computer, the one dollar note collection which had been located during a search of the offender's residential premises in North Richmond.
5. The following facts concern sequence 10. At about 10am on 26 February 2018 the occupant of 24 Garfield Street, McGraths Hill, left his home; before leaving his premises he secured them. Between 10am and midday the co-offender drove the offender to the premises; she remained in the vehicle while the offender broke into the house by forcing the lock on the ground floor rear door. Once inside he rummaged through two bedrooms and removed $2,000 from a wardrobe in one of the bedrooms including up to $500 in two dollar coins. He returned to where the co-offender was. The property stolen from this premises was recovered by police in the co-offender's home at the time of the arrest.
6. The following facts support sequence 11. At about 8.45am on 26 February 2018 the occupant of 10 Plimsoll Street, McGraths Hill, left her home; she secured her premises before doing so. At about 10.40am the offender was driven to the address by the co-offender, again she remained in the car while he gained entry to the premises by removing the flyscreen and forcing the lock of a ground floor side window. At this time the occupant returned to her premises, opened the garage door and parked her car in the garage. As she left the garage she heard her side gate open and noticed the offender walk down the side of her house and driveway. She called out to him but he continued to walk away. The occupant went inside her house and immediately noticed two side window flyscreens had been removed and one of the windows had been cracked and forced open. She contacted the police, inspected her premises but did not locate any missing property.
7. The following facts relate to a matter on the form 1. At about 12.30pm on 26 February 2018 the occupant of 10 Patrick Avenue, Castle Hill, left her home; she secured her premises before doing so. Between 12.30 and 1.10pm the co-offender drove the offender to the premises, again she stayed in the vehicle while he gained entry to the premises by kicking the ground floor rear door in. Whilst inside the premises he ransacked the house and stole a MacBook Pro computer valued at $4,000, a Sony PlayStation 4 valued at $500 and multiple games valued at $1,500, a Hewlett Packard Envy laptop valued at $2,000 and a large number of watches, perfume and jewellery valued at $1,500. The occupant returned home at about 1pm and noticed her back door had been forced open; she immediately checked her home office and saw that her work computer was missing and she contacted the police. At about 10.40pm that evening she received a notification from the Find My Phone app advising her that somebody had attempted to gain access to her work computer but it had been denied and the location was given as the residential address of the offender. On 28 March 2018 the occupant attended Castle Hill Police Station and identified and recovered some of her stolen property, the jewellery and electronics to a value of $9,500 were not recovered.
8. The following facts relate to an offence on the form 1. At about 10am on 26 February 2018 the occupant of 55 Sherwin Avenue, Castle Hill, left her home, and before leaving she secured her premises. Between 10am and 2.30pm the co-offender parked her hired vehicle across the road from the premises. During this time an unknown Mazda parked in front of the co‑offender's vehicle and the offender got out of the front passenger side of that unknown vehicle and approached the premises at 55 Sherwin Avenue. The offender knocked twice on the front door before proceeding to the rear of the property via the left side of the house. While around the back of the property he removed a flyscreen door and forced entry to a rear door. He entered the house but did not steal any property. He was seen by a neighbour at that time.
9. The following facts are in relation to sequence 23. At 2.45pm on 28 February 2018 the occupant of 10 Power Street, Prairiewood, left his home, and before leaving he secured his premises. Between 2.45pm and 5pm the offender was driven there by the co-offender. The offender got out of the vehicle and attended the house; he broke into the house by removing a flyscreen from a ground floor window and forcing the window open. He entered the house through the window and rummaged through the downstairs lounge room and upstairs bedrooms. He stole a Les Paul Gibson guitar worth $5,000, a gold Tiffany necklace with pearls worth $2,000, a tennis bracelet worth $1,000 and $200 in cash. The occupant returned home at about 5pm and saw that his home had been broken into and contacted the police. The following day, 1 March, the co-offender attended a Cash Converters store at Penrith and sold an amount of property including the guitar that had been stolen. She received $350 for the guitar and $800 in total for all the property sold.
10. The following facts relate to sequence 13. At 8am on 2 March 2018 the occupant of 6 Coreen Place, Blaxland, left her home; before leaving she secured her premises. Between 8am and 12pm the offender was driven to the premises by the co-offender; he got out of the car and approached the house. He forced entry into the premises by opening the closed front security door and breaking the lock on the front main door. He entered the house and rummaged through the upstairs bedrooms, removed a quantity of jewellery valued at up to $2500, a Nepean Hospital 25 year service award badge and a glass cylinder artwork. He then left the premises through the front door meeting up with the co-offender in the vehicle. The property stolen from those premises was recovered by police later that day in the co‑offender's hire vehicle at the time of the arrest.
11. The following facts relate to sequence 7. At 8.30am on 2 March 2018 the occupant of 15 Bowaga Avenue, Blaxland, left her home, and she secured her premises before doing so. Between 12.05 and 12.10pm the offender and co-offender have approached the premises in the hire vehicle. The offender forced entry into the home by kicking in the back door, this has activated the home alarm and he has fled from the premises without taking any property.
12. The following facts support sequence 20. At about 8.45am on 2 March 2018 the occupant of 161 Russell Street, Emu Plains, left his home, and he secured his premises before he did. Between 8.45am and 10.30am the co‑offender parked behind a vehicle at the front of the property, the offender opened an unlocked flyscreen door and kicked open the main door which was locked. Once inside he grabbed a backpack containing a New South Wales police uniform; he removed the police uniform and kept the backpack which contained keys to two New South Wales police stations. The property was recovered by the police at the time of the co-offender's arrest.
13. The following facts support an offence on the form 1. At 11.30am on 2 March 2018 the occupant of 32 Gough Street, Emu Plains, left her home to visit a friend up the street. She closed but did not lock her front door. Between 11.30am and 1pm the offender and the co-offender approached the address in the hire vehicle. The offender walked towards the house, he gained entry into the dwelling by opening the closed front door. He entered the premises and ransacked the bedrooms stealing $2000, a jewellery box containing various earrings, necklaces, rings, bracelets and two gold watches to the value of $3,500. All the stolen property was recovered by the police at the time of the arrest of the co-offender.
14. The following facts support sequence 21. At about 12pm on 2 March 2018 the occupant of 196 Nepean Street, Leonay, left his home; he secured his premises before he did. Between 12 and 3.25pm the co-offender and the offender arrived at the premises; the offender approached them, he forced entry into the dwelling through the main front door and ransacked the bedrooms. He stole a bag containing New South Wales police uniforms, two jewellery boxes containing a large amount of jewellery, electronics and money before leaving the house. All property except a Samsung tablet worth $1,700 and jewellery to the value of $28,000 was recovered by the police when the co‑offender was arrested.
15. The following facts relate to an offence on the form 1. At about 8am on 2 March 2018 the occupant of 5 Urban Street, Leonay, left her home; she secured her premises before she did. Between 1.15 and 1.30pm the offender and the co-offender approached the address, the offender forced entry into the house through the front security and main door by kicking the door in. Upon entering the dwelling he has activated the house alarm and left without taking any property.
16. The following facts relate to the possess Police uniform and occurred, as I would understand it, after the arrest of the offender. At about 3.25pm police located the co-offender's hire vehicle travelling along Hunter Street at Emu Plains; they searched the vehicle and located a large amount of the suspected stolen property or the stolen property which included, as I would understand it, the relevant police uniform. On 6 March 2018 police executed a search warrant at the residential address of the offender and some property was located. He was ultimately interviewed or sought to be interviewed on 8 May 2018.

Assessment of objective seriousness of the offending

1. I turn then to assess the objective seriousness of the offending. In terms of the break enter and steal offences I have had regard to the objective factors discussed in the guideline judgment of R v Ponfield (1999) 48 NSWLR 32, noting that the status of that decision has been questioned, see TL v R [2017] NSWCCA 308. It is important in considering the guideline judgment when assessing objective seriousness to only have regard to the objective features of the offence as discussed in that case.
2. I will firstly assess the objective seriousness of each of the offences under s 113 of the Crimes Act. I note in relation to all the offences there appears to have been some planning involved, given the use of a hire car and there being a co‑offender and the offences generally occurring in domestic premises at times when it was unlikely there would be someone at home. I do not, however, consider that the level of planning is above what might ordinarily be expected in such offending.
3. In relation to the offence at 14 Guardian Crescent, Bligh Park, sequence 1, there was a smashed window whereby the offender obtained access to the premises and cupboards and drawers had been opened but no property taken. I note that the particularised serious indictable offence was one of larceny, I assess the level of objective seriousness to be at the lower end of the scale.
4. In relation to the premises at 15 Bowaga Avenue, Blaxland, sequence 7, again the particularised serious indictable offence was larceny. There was some damage to the property as the offender had kicked in the back door to the premises. No property was stolen. While still in the lower end of the range of objective seriousness, I consider this offence to be more serious than the offence in sequence 1.
5. In relation to the offence that occurred at 10 Plimsoll Street, McGraths Hill, sequence 11, again the particularised serious indictable offence was larceny. There was limited damage to the premises as entry was obtained by the offender removing the flyscreen and forcing the lock of a ground floor side window which was cracked in doing so. No property was taken but the offender was seen by the victim at the premises. This offence was also, in my opinion, in these circumstances, towards the bottom of the range of offending for this type of offence.
6. I will now assess the level of objective seriousness for the offences under s 112 of the Crimes Act. In relation to the offence that occurred at 24 Garfield Road, McGraths Hill, sequence 10, the offender gained entry by forcing the lock on the ground floor rear door, $2,000 in cash was taken from the premises which was recovered by police at the time of the arrest of the co-offender. Given the limited damage to the property and the recovery of the items stolen, I assess the objective seriousness to be towards the bottom of the range.
7. In relation to the offence at 6 Coreen Place, Blaxland, sequence 13, I note that to gain entry to the home the lock on the front door was broken, $2,500 worth of jewellery was taken and an award, with no doubt great sentimental value for the owner, was also taken. I do note that property was recovered by the police later that day. Given the limited damage to the premises and the recovery of the property, I consider that the objective seriousness to be towards the bottom of the range.
8. In relation to the offence at 28 Perkins Drive Kellyville, sequence 19, I note that was an attempted offence; that the victim saw the offender outside her premises through her kitchen window and saw that he was trying to open her sliding backdoor with a tool; when he saw her he ran away. In these circumstances I consider the objective seriousness to be at the bottom of the range for such an offence.
9. In relation to the offence at 161 Russell Street, sequence 20, I note that the offender gained entry by kicking open a locked main door. I note that a backpack containing a police uniform was taken along with keys to two police stations. I note that property was recovered by the police. Again, given the limited damage to the property and the fact that the stolen items were recovered later that day, the level of objective seriousness is towards the bottom of the range.
10. In relation to the offence at 196 Nepean Street South Leonay, sequence 21, I note the bedrooms of the premises were ransacked, I note a bag containing police uniforms, two jewellery boxes containing a large amount of jewellery, electronics and money were taken from the premises. I note also that all the property except a Samsung tablet and jewellery valued at $28,000 was recovered. Given the ransacking of the premises and the value of the property not recovered, I consider that this offence falls a little below the mid-range of objective seriousness. I note that it is this offence that the Form 1 is attached to, although that does not impact upon my assessment of the objective seriousness of the offence.
11. In relation to the offence at 10 Power Street Prairiewood, sequence 23, I note there was no damage to the premises, the property taken was not insignificant, being the guitar valued at $5000, a Tiffany necklace and pearls valued at $2000, a bracelet worth $1000 and $200 in cash. It does not appear that any of the property was recovered with much of it being pawned by the co‑offender. This offence, given the unrecovered property involved, is not at the bottom of the range of objective seriousness.
12. In terms of the Form 1 offences, the offence that occurred at 1 Sydney Joseph Drive Seven Hills, given the stolen items was a serious offence. Similarly, the offence that occurred at 10 Patrick Avenue Castle Hill.

Consideration of the offender's subjective case

1. I turn then to consider the offender's subjective case. He is currently 31 years of age. He has a significant criminal history which disentitles him to leniency here. It commences when he was a juvenile and I note that while a juvenile he received his first custodial sentence for break enter and steal and that as a juvenile he received a number of custodial sentences for such offending. As an adult he has received custodial sentences in the past for break enter and steal offences as well as for other offences. I note that he has in the past been sentenced in the Drug Court for a number of offences including for break enter and steal.
2. On 9 August 2017 after an appeal to this Court he received a sentence of 12 months with a non-parole period of six for an offence of steal property from a dwelling house. That sentence commenced on 18 February 2017, so sequences 1 and 19 were committed while on conditional liberty which is an aggravating factor.
3. In relation to his most recent period on parole I note there is a breach parole report dated 3 November 2017 recording that he failed to attend the EQUIPS Foundation program as directed, although he was considered to have been generally compliant with supervision and no action was taken in relation to his parole at that time. There was a further breach parole report in December 2017 where he failed drug testing, again no action was taken in relation to his parole.

Sentence Assessment Report

1. There is a Sentence Assessment Report before me. That report records that he is no longer in a domestic relationship with the co-offender. It notes he has two children from a prior relationship. The report records that since being in custody he has associated with negative peers. He told the author of that report that at the time of the offence he felt overcome by his addiction to heroin. The report records his chronic substance abuse issues, he was assessed as having a medium to high risk of re-offending.

Psychological report

1. There is also a psychological report before me by Emma Hubner, a psychologist, dated 10 April 2019. That report details the offender's early life which the psychologist considered left him vulnerable to the development of personality pathology later in life and to associated problems of emotional dysregulation and substance abuse. The psychologist records his early exposure to drugs and alcohol and that over time being exposed to negative family and social influences, he has developed ingrained borderline and anti‑social attitudes. The psychologist considered that the offender appeared motivated to make changes in his life. I note that in relation to his expressed attitude the psychologist said: "Despite this favourable sign the combination of problems he is reporting suggests that treatment is likely to be quite challenging and that the treatment process is likely to be arduous with many reversals."
2. The psychologist makes the obvious point that intensive drug rehabilitation is required if the offender is to have any hope of properly dealing with his addiction and remaining offence-free.
3. The offender gave evidence and confirmed the details of his difficult upbringing recorded in the psychologist's report. He detailed his early use of heroin to "get away from things". In his evidence he expressed the desire to get on top of his drug issues, which I consider is a genuine desire, but to date he has failed to grasp the opportunities he has been given in that regard.

Plea of guilty

1. The offender entered an early plea of guilty, as I say, and I will allow him a 25% discount of his sentence for the utilitarian value of his plea. Having heard from the offender and noting his early plea of guilty I consider that he has some genuine remorse from his offending. His prospects for rehabilitation are guarded bordering on poor, when I have regard to his prior record and his previously failed attempts at rehabilitation.

Early life and background

1. The evidence satisfies me that he was exposed to drugs and alcohol at an early age and there was an incident involving considerable trauma to him in his early life. I consider that the principles concerning the relevance of social disadvantage to sentencing as discussed in Bugmy v The Queen (2013) 249 CLR 571 are applicable here. I consider the offender has guarded bordering on poor prospects for rehabilitation as I say. Given his entrenched drug problem I consider that it will be in his interest and the community's interest if he has a longer period on parole than provided by the statutory ratio. His prospects of rehabilitation will be assisted if he has a longer period on parole. I therefore find special circumstances when fixing the non-parole period. There was no suggestion in the submissions that I need to consider the issue of parity with the co-offender given the different roles that they each played.

Determination

1. He has been in custody since 3 March 2018 and served until 13 March 2018 by way of balance of parole for the matter I referred to earlier. I have decided to commence the sentence that I will impose from 3 March 2018. I will impose an aggregate sentence. In indicating the indicative sentences and in determining the aggregate sentence I have had regard to all the subjective factors I have discussed in these remarks. Clearly, given the number of offences and the number of different victims involved if I had not been using the aggregate sentencing provisions there would have been a degree of accumulation to properly reflect the criminality and the different victims involved.
2. I have had regard to the objects of sentencing referred to s 3A of the Crimes (Sentencing Procedure) Act. Offences of break enter and steal or with intent to steal are very prevalent in our community. They cause great upset and trauma to the residents involved and great cost to the community by way of the increase in insurance premiums. Significant sentences must be imposed in order to deter the offender concerned and others from engaging in such offending. Clearly, the only appropriate sentence is one of full-time custody. I have had regard to the maximum penalties as legislative guideposts.
3. I will firstly record the indicative sentences. On sequence 1, the offence concerning 14 Guardian Crescent Bligh Park, there is an indicative sentence of 12 months imprisonment. On sequence 7 which concerns 15 Bowaga Avenue Blaxland, there is an indicative sentence of 16 months imprisonment. On sequence 11, the offence at 10 Plimsoll Street McGraths Hill, there is an indicative sentence of 16 months imprisonment. On sequence 10, the offence at 24 Garfield Road McGraths Hill, there is an indicative sentence of two years imprisonment. On sequence 13, the offence at 16 Coreen Place Blaxland, there is an indicative sentence of two years imprisonment. On sequence 19, the offence at 28 Perkins Drive Kellyville, there is an indicative sentence of 12 months imprisonment. On sequence 20, the offence at 161 Russell Street Emu Plains, there is an indicative sentence of two years imprisonment. On sequence 21, the offence which occurred at 196 Nepean Street South Leonay, having regard to the matters on the Form 1 there is an indicative sentence of four years imprisonment. On sequence 23, the offence at 10 Power Street Prairiewood, there is an indicative sentence of three years imprisonment.
4. I will not require Mr Warren to stand because he is appearing via AVL. You are convicted of the offences to which you pleaded guilty, you are sentenced to an aggregate sentence of five years and three months' imprisonment with a non-parole period of three years and six months. The sentence commences on 3 March 2018 and will expire on 2 June 20123. You will be eligible to be released to parole on 2 September 2021. I order pursuant to s 18B of the Drug Court Act that the offender be referred to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order. The earliest date you may be released to parole is the date of the expiry of the non-parole period which is 2 September 2021. Whether you are in fact released to parole is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison in determining whether to release you then or on another date.

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