R v Weir

AGREED FACTS

1. There is an agreed facts document at tab 4 of exhibit 1, a summary of which follows:
2. The victim Brandi Sanese resides at unit 10/138‑144 Campbell Street, Woonona. The bathroom has a large, sliding window which faces the front yard of the address. The bathroom window is locked via a latch. At the time of the offence there was a current, enforceable domestic apprehended violence order between the accused and the victim until 16 March 2019.
3. The accused and the victim had known each other for about three years at the time of this offence. For two of these years they were in an intimate relationship. Since the enforceable domestic apprehended violence order was granted the victim and the accused have remained in contact with each other by use of telecommunication services and in person.
4. About 7am on Sunday 28 January 2018 the accused gained entry to the victim's premises by forcing open a locked bathroom window. This window had been locked the previous night by the victim. The accused entered the victim's bedroom whilst she was sleeping and removed her purse from her handbag which was beside the bed. The victim's purse contained her personal identification, bank cards and about $100 in various Australian currency. The offender was confronted by the victim's younger sister. He left the premises by the front door. It would appear that he then used the bank card to engage in two transactions at a Woonona ATM which the victim discovered when she did an internet search of her bank statement.
5. A fingerprint matching that of the accused was found on the edge of the bottom metal frame of the bedroom window.
6. On 3 February 2018 the offender was arrested. He did not make any admissions to the offence, however, stated he was staying at a friend's place at Nelson Bay, on the night of the offence, with his nephew Brendon Chapman and they were watching television. He said he had used the ATM in question whilst he was living in the area. Brendon Chapman was interviewed and did not support the version given by the offender.

OBJECTIVE SERIOUSNESS

1. Break, enter and steal has long been regarded as a serious crime by the legislature and the degree of criminality involved should not be underrated by sentences. General deterrence is a particularly important sentencing consideration for break and enter offences, the Courts need to send a very clear message to others who may be minded to conduct themselves in a similar fashion that if they come before the Courts they will be punished severely.
2. In assessing the objective seriousness I have taken into account the matters listed in R v Ponfield (1999) 48 NSWLR 327, except for guideline (iii) as it was disapproved by the full bench in R v McNaughton (2006) 66 NSWLR 566 at [23] ‑ [24] and [66] ‑ [76].
3. The offender entered his former girlfriend's unit through a locked bathroom window. He entered with an intent to steal. At the time of entry he knew that there were persons in the unit. In assessing the objective circumstances I have taken into account the following: 1. the amount stolen was small, a purse containing bank cards and $100. 2. it was committed in daylight hours. 3. the period within the apartment was short. 4. no damage or ransacking occurred. 5. he left immediately upon detection. If it were not for the younger sister his entry would have been unknown. 6. it was a non-violent incursion. 7. if there was planning it was limited and unsophisticated, especially with the offender leaving his own fingerprint at the house.
4. I accept the submission that the offence is at the low end of objective seriousness.
5. Although general deterrence is important it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the Court: R v Moon [2000] NSWCCA 534, Howie J at [81].

SUBJECTIVE CIRCUMSTANCES

1. The offender was assessed by Anita Duffy, psychologist, and I have before me her report dated 27 May 2019 which is exhibit D1. The report assists me in relation to the subjective circumstances of the offender.
2. The offender was born on 8 November 1988 and is currently 30 years of age. He grew up in Wollongong with his mother and siblings; his parents had separated when he was about two. He then remained with his mother and her partner. He reported to the psychologist that her partner was a bad alcoholic and often aggressive. There was frequency in conflict with his stepfather and the offender ran away from the family home at the age of 16.
3. He has had a three-year de facto relationship with Crystal Johnson between 2007 and 2010 which ended when he went to gaol. He had a short term relationship until he met Brandi Sanese in 2006.
4. He left high school in year 10 and reported behavioural problems including fighting. He attended TAFE the following year for a six-month pre‑apprenticeship course in boilermaking. After leaving home at 16 he travelled around the coast of New South Wales with some mates and worked as a labourer engaged in road works and drainage.
5. When he went to Newcastle he lived with his sister and worked with his father as a machine operator in the underground coal mines in the Hunter Valley. He was employed at Ravensworth Underground Mines for two years and then Glennies Creek Mines. After he was released on parole in 2012 he was employed with Downunder Mining at Glennies Creek for several years, operating machinery. He said that being in custody for two years had affected his life such that he had lost everything, including his long term girlfriend, and had come out to nothing.
6. He was employed as a labourer, constructing retaining walls, in the Hunter Valley until he was in gaol on remand for a charge for about eight months in 2016 and was subsequently acquitted. In 2017 he and a few friends formed a company, Roof to Floor Restorations, with a view to undertaking a NEIS program to assist in the start-up of their small business. He had made an application for a business name when he was remanded in custody for a charge that was ultimately overturned, however, due to his incarceration he had lost the money that he had invested in the business by purchasing tools and equipment. When he was released in November 2017 he tried to salvage his roofing business and picked up his tools which he had stored, however, he was unsuccessful and was unemployed until his arrest in January 2018. He currently has a job as a head sweeper in the John Moroney Correctional Centre. He has an offer of employment by his former boss at Valley Longwall to work in the mines and a friend has also offered him a job as a painter.
7. He had been the victim of a botched robbery attempt in 2006 where he was stabbed in the lungs, liver and kidney and spent two weeks in the intensive care unit of the John Hunter Hospital.
8. He has had in the past a problem with alcohol. He stopped in 2010 when he went to gaol. He remained abstinent after release but started drinking again towards the end of his parole until he was apprehended and charged with special range PCA. He stated that he has not touched alcohol since then. He described a very heavy gambling habit that coincided with his drinking at hotels and clubs where he played poker machines. During 2008 to 2010 he was a heavy gambler but since then has only had the odd flutter on the poker machines and no longer has a habit.
9. After a period of abstinence from all substances Mr Weir was introduced to ice after leaving gaol in 2016. He used ice to deal with his problems and he described having binges of ice rather than regular daily use. He reported using ice on three occasions after he came out of gaol in November 2017, most recently two days before his arrest for the index charge; he had not slept for days and was paranoid. Since coming to gaol he has detoxed from ice and has remained drug free. He has kept himself busy by working as well as doing educational courses such as computer skills.
10. In relation to the offence he told the psychologist that he attributed his action of entering the house to his poor judgment as a result of paranoia and not sleeping for days due to ice use. The psychologist assessed that his risk of recidivism is moderate to high. She also said in the report that he would benefit from a period of supervision post release to facilitate his adjustment into the community.

PRIOR HISTORY

1. The prior convictions may be relevant to the determination of whether leniency should be extended. The offender has had three relevant court appearances in relation to dishonesty matters, he has some driving offences but I do not take those into account.
2. He was dealt with on 27 July 2011 at the Sydney District Court for an aggravated robbery and was sentenced to three years and nine months' imprisonment with a non-parole period of two years. On 24 January 2017 he was sentenced by the Liverpool Local Court to a shoplifting offence where he received a s 9 bond that was to run for 18 months; this offence breaches that bond. On 22 August 2018 whilst he was in custody for this offence the magistrate at the Wollongong Local Court sentenced him to two months imprisonment for a shoplifting. One suspects that the magistrate did not have many options available to him for sentencing as the offender was in custody in relation to these offences.
3. His prior convictions in my view do not disentitle him to a degree of leniency.

PROSPECTS OF REHABILITATION

1. The offender has reasonable prospects of rehabilitation. He has two job offers, one in the mines or as a painter with his friend. He needs to take up employment upon his release, regular employment is a protective factor against reoffending.

SPECIAL CIRCUMSTANCES

1. I find special circumstances to assist with the offender's reintegration into society and to avoid the risk of institutionalisation of the offender. The psychologist says that, "He would benefit from a period of supervision post release to facilitate his adjustment into the community". I take that matter into account in forming the view that special circumstances have been satisfied.

COMMENCEMENT DATE OF SENTENCE

1. I accept the submission that the two months gaol imposed for shoplifting while he was on remand should be concurrent with this sentence and I intend to backdate this sentence to the date when he went into custody.

S 166 OFFENCE

1. The offender admits his guilt in respect to the offence of contravening an apprehended violence order. Despite the order the offender and the victim continued to have consensual contact. The breach of the order is the entry into the unit; it is at the low end of the scale and I impose a fine of $800 in relation to that offence.
2. The offence breaches a s 9 bond imposed on 24 January 2017 at the Liverpool Local Court for shoplifting that was to run for a period of 18 months. In light of the sentence of imprisonment that I am about to impose I call up the bond and take no further action.

SENTENCE

1. The offender is convicted and sentence to two years and two months imprisonment with a non‑parole period of 16 months. The sentence is to commence from 3 February 2018 and will expire on 1 April 2020. The non‑parole period is to commence from 3 February 2018 and the offender will be eligible for parole on 2 June 2019.

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: 09 July 2019