Regina v Caine FOX

Facts

1. The facts are before the court by way of sets of agreed facts. There is a separate set of facts for the matters on H262471897 and another for the matters on H70550519. Neither set of facts is particularly easy to follow. I will initially go to the matters on H262471897.
2. By way of background, either late at night on 28 December 2018 or in the early hours of the morning of 29 December 2018 an offence of Break Enter and Steal was committed at the home of Heather and Eric Heinjus at an address at Coolamon. During that offence various items of property were taken including a mobile phone, jewellery and the keys to a 2014 model Mitsubishi ASX motor vehicle registered CRS-95G. That vehicle was also stolen from the location.
3. Going to sequence 3 on H262471897, the offence of Break Enter and Steal, Ms Lynda Berben of an address in Angels Lane Coolamon was away from Coolamon on 28 and 29 December 2018 and a friend was house sitting. Between 8pm on 28 December 2018 and 6.37pm on Sunday 29 December 2018 the premises were broken into with entry being gained by a closed but unlocked door. The premises were ransacked with drawers being pulled out and items strewn around the rooms. The linen cupboard and filing cabinets were rummaged through. A mobile phone and a necklace were taken from the premises. The victim located a pair of socks that had been removed from the premises and placed in the recycling bin. A DNA profile consistent with the offender was found on those socks.
4. The premises were residential. They were unoccupied but if they were a more serious charge would have been appropriate. The premises were ransacked and items strewn around the premises. There was no damage occasioned on the entry into the premises. I am not informed of the intrinsic or monetary value of the property. The matter is an example of a typical or unremarkable example of a break, enter and steal offence contrary to s 112(1) of the Crimes Act.
5. The facts then go to give the background to sequences 4 and 5 on H262471897 which are matters on the Form 1 document. Sequence 4 is a charge of Intentionally Throw Object at a Vehicle and Sequence 5 is a charge of Deal with the Proceeds of Crime. Essentially the background contains details of what is commonly known as a "ram raid" at a bottle shop in the central business district of Wagga Wagga. It would appear from the facts that significant damage was occasioned to the premises and about $3,000 of liquor was stolen. CCTV footage showed that all offenders had their faces covered and were wearing gloves.
6. At about 1.55am on 30 December 2018 police sighted the Mitsubishi ASX registered CRS-95G in Pinaroo Drive, Glenfield, a suburb to the south-west of the CBD of Wagga Wagga. All warning devices were operated but the vehicle failed to stop. A police pursuit ensued, during which cans of alcohol were thrown at the pursuing police vehicle. The pursuit was terminated because of the reckless manner of driving.
7. Police back-tracked and seized some of the cans thrown at the pursuing vehicle, the cans being pre-mixed bourbon and cola. A DNA swab from one of the cans was consistent with that of the offender. The facts recite, "Due to the DNA match on one of the cans collected police believe that the accused was one of the occupants of the stolen car and participated in throwing cans at the police vehicle." This relates to one of the matters on the Form 1 document of Intentionally Throw Object at Vehicle (sequence 4). Sequence 5 (Deal with Proceeds of Crime) relates to the offender drinking some of the stolen liquor. It is not suggested that the offender participated in the offending at the bottle shop.
8. The facts then go to sequences 6 and 7 which are two of the substantive matters for which the offender appears for sentence. Between 10.30am on 14 January 2019 and 7am on 15 January 2019 a break and enter occurred at the home of Barry and Barbara Belt at an address in Keneally Street, Wagga Wagga. During that break and enter a mobile phone, hand bag and car keys were taken. The car keys enabled the offenders to take a silver Ford sedan registered BEJ-19D from the carport. By using the mobile phone the offenders were able to access the victim's bank account and transferred $1500 into a bank account in the name of the co-accused Jordan Widders and $2890 into an account in the name of this offender. A card-less cash transaction for $500 was also sent from the victim's mobile Commonwealth Bank "App" sending the authorising code to the co-accused's mobile phone.
9. About 6.20am on 15 January 2019 the offender and Widders were collected by taxi from an address in Sepik Road, Ashmont. They were driven to the Commonwealth Bank ATM at the South City shopping centre where $500 was withdrawn using the authorisation code sent to the co-accused's mobile phone. CCTV footage depicts the offender and the co-accused using the ATM and the offender is captured on CCTV footage taking the money from the ATM.
10. Bank records obtained in the name of the offender confirmed that $2890 had been unlawfully transferred into his account from the victim's bank account.
11. The charge of Dishonestly Obtain Financial Advantage contrary to s 192E(1)(b) relates to the unlawful transfer of the $2890 into the offender's bank account and the charge of Deal With Proceeds of Crime contrary to s 193C(2). Sequence 7 relates to the withdrawal of $500 from the ATM. So far as the Dishonestly Obtain Financial Advantage charge is concerned the amount of money is not significant but neither is it trifling. There is some degree, but not a significant degree of sophistication to the commission of the offence. Both are examples of offending towards the lower end of the scale of seriousness.
12. The facts then go to sequence 9, which is a charge of Carried in Stolen Conveyance and is one of the offences on the Form 1. A Nissan Pulsar sedan, the property of Grant Darling was stolen from an address in Ashmont on 19 January 2019. The owner had the keys to the vehicle and the means by which the vehicle was stolen is unknown. At about 4.40am on 21 January 2019 the vehicle was involved in a fail to pay for fuel at the Coles Express Service Station involving 22.33 litres of fuel. The vehicle was later involved in a police pursuit in Albury and the vehicle was abandoned. Fingerprints matching those of the accused were found inside the vehicle.
13. I now turn to the matters on H70550519. Sequence 1 is a charge of Break Enter and Steal contrary to s 112(1) of the Crimes Act and Sequence 2 is a charge of Take and Drive Conveyance without Consent of the Owner contrary to s 154A(1)(a) of the Crimes Act. Shortly before 5am on 11 February 2019 the offender gained entry to premises of Man Yi Peng at an address in Bourkelands, a suburb of Wagga Wagga. Entry was gained through an open attached garage and walking through an unlocked internal door. The victim was woken by a flashlight in the premises and when she went to investigate found the door open, the garage open and her vehicle, a white Toyota Camry DXM-09Z, missing.
14. The victim then found that her car keys and her black handbag containing a purse which in turn contained her driver's licence, three bank cards and $50 were missing. The break and enter was committed at residential premises at a relatively early hours when it could be expected that persons would be at home. However the owner was not confronted. There was no damage to the property. The property is not of significant value noting the charge of Take and Drive Conveyance Without Consent is brought in respect of the taking of the motor vehicle. The Break and Enter is a typical example of that type of offence.
15. Shortly after 11.45am on 11 February 2019 the stolen vehicle pulled into a service station in Hammond Avenue, East Wagga Wagga. Police officers who were at the service station in respect of unrelated matters recognised the vehicle and attempted to stop the vehicle without success. CCTV captured images of the vehicle containing two occupants.
16. The facts then go to sequence 3, which is a charge of Drive Manner Dangerous in a Police Pursuit contrary to s 51B(1) of the Crimes Act and given the facts is some of the most serious offending in the various matters for which the offender appears for sentence.
17. At about 8.10am on 12 February 2019 Senior Constable Carswell of the Wagga Wagga Highway Patrol saw the vehicle driving along Murray Street approaching Edwards Street. The officer turned the police vehicle around and activated the warning devices on the police vehicle, the stolen vehicle ignored the attempts to stop it and a police pursuit was commenced. At the intersection of Brookong Avenue the stolen vehicle turned right at speed and commenced to travel west. At the intersection of Docker Street the vehicle turned left, "running" the red stop light without stopping and then accelerated to no less than 100 km/h and commenced to travel on the incorrect side of the road towards oncoming traffic at which point police terminated the pursuit.
18. The areas where the driving took place are within the central part of Wagga Wagga. From my local knowledge of living in Wagga Wagga the area around the intersection of Brookong Avenue and Docker Street is the medical precinct where a number of medical specialists have their rooms and it is where the Base Hospital is located. The area is signposted at 50km/h. Docker Street is also a major thoroughfare. Significant pedestrian and vehicular traffic could be expected at that hour of the morning. I am not informed of the time over which the pursuit lasted. Even so, given the speeds and the area where the driving occurred, the matter is a serious example of a Police Pursuit and at least mid-range.
19. Sequence 4 on H70550519 is a charge of Dishonestly Obtain Property by Deception involving the theft of 13 litres of fuel valued at $16.29 and is on the Form 1 document. Sequence 5, also on the Form 1, is likewise a charge of Dishonestly Obtain Property by Deception and involves the theft of fuel to the value of $4.69. The facts in respect of sequence 5 also recite that police attended an address at The Esplanade in Wagga Wagga where the offender was sighted jumping from the back window and running from police. The offender jumped a number of fences evading police.
20. Sequence 6 on H70550519 is one of the substantive matters for which the offender appears for sentence and is a charge of Break Enter and Steal contrary to s 112(1) of the Crimes Act committed at the premises of Rachelle Auld at an address in Murray Street, Wagga Wagga on 12 February 2019. Ms Auld left her premises shortly before 8am on that date with the premises being secured. Between 7.50am and 12.55pm the offender entered the premises through the rear window or back door. While inside the premises the rooms were rummaged through and items strewn all over the floors of various rooms in the premises. A watch and gold and white sapphire ring were stolen.
21. The victim arrived home at 12.55pm and found the front door open and found the back fly screen over the window was pulled out and the window sash wide open. Police were contacted. A blood-stained shirt was found in the bedroom, a chisel near the front door and a backpack containing drink bottles and an asthma "puffer" were found inside the premises. A scientific examination was conducted revealing DNA matching that of the offender found on the shirt. Fingerprints of the offender were located on the perimeter fence.
22. The break and enter occurred in daylight hours when it was unlikely there would be people home. The premises were ransacked and two items of jewellery were taken. The matter is below mid-range but not significantly so.
23. Sequence 7 is also one of the substantive matters and is a charge of Break and Enter with Intent to Commit a Serious Indictable Offence contrary to s 113(1) of the Crimes Act. The offence occurred on 12 February 2019 at the premises of Jeremy Rowe at Murray Street, Wagga Wagga. Mr Rowe left for work at about 7.15 am and at about 1.30pm received a call from a friend who indicated that someone was in his yard and was suspicious. Mr Rowe went to his home and arrived at the same time as police who spoke to him. He looked around the yard and nothing was stolen. He noticed that a fly screen had been removed from the window on the right hand side of the house. Fingerprints of the accused were found at this window. The matter is a typical or unremarkable example of an offence contrary to s 113 of the Crimes Act.
24. Sequences 8 and 9 are offences of Enter Inclosed Lands, which are offences that carry a fine only. The offences relate to the accused entering two different yards while fleeing from police.
25. Sequence 12 to H70550519 is a charge of Aggravated Break Enter and Steal contrary to s 112(2) of the Crimes Act. The offence occurred at the premises of Brooke and Cameron Roberts at an address at Yentoo Drive, Glenfield, a suburb of Wagga Wagga between 10pm on 15 February 2019 and 7am the following day. Brook and Cameron Roberts and their three children were home.
26. Entry to the premises was gained through an unlocked but closed side kitchen window. The kitchen area was rummaged through and a Samsung Smart Watch to the value of $400, a Samsung Galaxy Smartphone to the value of $300 and a Jack Daniels wrist watch to the value of $50 was stolen. The victims discovered the break in at about 6.30am on 16 February 2019. Fingerprints matching the offender's were found.
27. The offence to which sequence 12 relates carries a standard non-parole period. The break and enter occurred at night at residential premises. The circumstance of aggravation pleaded on the Court Attendance Notice is the offender knew persons to be inside the premises. There was no damage to the property. Larceny is at the cusp of being a serious indictable offence. The amount of property taken was not significant. Noting what Adams J said in Hunter v R [2011] NSWCCA 141 at [52] the matter is moderately below mid-range.
28. The offender was arrested on 20 February 2019 an address in Dalgety Street, Narrandera. Police observed the offender look through a side window. The offender's partner informed police the offender was not present but gave permission for them to enter. The offender was found in a deep freeze in the kitchen. The offender declined to participate in a record of interview.

Criminal History

1. The offender was born on 27 January 1998 and accordingly is now 22 years of age; he would have been 20 or 21 at the time of offending. He has numerous matters recorded against him in the Children's Court. In May 2017 the offender was convicted of a number of dishonesty matters including Take and Drive Conveyance and Dishonestly Obtain Property by Deception. He was released on section 9 bonds. He was also convicted of a domestic violence assault for which he received a short sentence of imprisonment.
2. On 8 February 2018 he was dealt with at the Albury Local Court by way of call-up but also on charges of Take and Drive Conveyance, Drive Under Influence of Illicit Drug, Drive While Disqualified, Drive Manner Dangerous in a Police Pursuit and Predatory Driving. He was sentenced to an aggregate sentence of 18 months with a non-parole period of 8 months.
3. Then on 20 May 2019 the offender was sentenced at the Wagga Wagga Local Court for an offence of Break Enter and Steal to a total sentence of 18 months with a non-parole period of 11 months. The sentence and non-parole period commenced on 7 April 2019 and the non-parole period expired on 6 March 2020. The offence was committed on 21 January 2019 and accordingly was part of the same episode of offending for which he now appears for sentence. Mr Wilson argues that the commencement date of the sentence should be back-dated to when the offender went into custody after parole was revoked, namely the date of his arrest 20 February 2019.
4. The Cover Sheet on the Crown tender bundle exhibit A on sentence indicates that parole was revoked. The cover sheet also sets out that the offender was on parole for break, enter and steal. However closer inspection of the record seems to indicate that he was in fact on parole for the multiplicity of offending for which he was sentenced on 8 February 2018 (which does not appear to include a break enter and steal offence) noting that the 18 months head sentence dated from 14 December 2017 and expired on 13 June 2019 with the non-parole period commencing on 14 December 2017 and expiring on 13 August 2018.

Subjective Case for the offender

1. No oral evidence was called from or on behalf of the offender. However a report from Robyn Fowkes was tendered and became exhibit 1 on sentence. The report is unusual but I suspect that has more to do with the offender's reluctance to properly engage with the author of the report.
2. The report sets out (p 2) that the offender's mother was killed in a car accident when he was 6 years of age. He has seven siblings all of whom are in conflict with the law. He himself now has two children aged three years and one year. He left school in Year 8.
3. The offender told the author of the report that he did not want to remember his childhood because "it was shit" in respect of his parents, "all they did was drink…I just did break and enters to survive". A little later in the report (also p 3) it appears that the offender commenced using alcohol when he was 13 and commenced using ice (methyl amphetamine) and "weed" (cannabis) at 14. He would steal "grog" from his parents or fund his drinking from break and enters.
4. The offender identifies as indigenous. There is scant detail but what detail is contained in the report is utterly consistent with evidence I have heard many times on the issue of deprivation during formative years. I have no doubt that the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened reducing the offender's moral culpability.
5. Further, the report sets out that the offender has completed the EQUIPS programmes while in custody addressing addiction and aggression. The author said (p 4) that when discussing these programmes was the only time the offender showed any enthusiasm. The offender was obviously very reluctant to participate, saying a number of times that he did not want to do the assessment and he resisted engaging with the author of the report.
6. Under the heading "conclusions" the author of the report states that the offender was a very reluctant interviewee. She goes on to say (p 6) that if the offender's parents drank constantly as reported it is highly likely that he received little affection, that his childhood was probably quite traumatic and that he has never learned to live a normal life. These are matters that go to the finding already made that the "Bugmy factors" are enlivened.
7. Curiously the author of the report at p 7 says: "While I understand that it is not the purpose of this report, I can't help feeling that Caine could actually benefit from incarceration if he can be offered education, work experience and counselling. He does not have the skills necessary to function in society and I believe he would return to what he has been doing because he simply doesn't know what else to do. It is hoped that as Caine develops some skills he can be placed in a less restrictive environment with sufficient supervision to transition in to society successfully."
8. Despite the breach of parole and the offender's criminal history this is one aspect that in my opinion justifies what might in the circumstances of the offending and the record as a reasonably generous finding of special circumstances. Clearly the offender will need extensive and intensive supervision, inter alia to assist in his effective reintegration into the community. Other reasons that go to justifying a finding of special circumstances are the need for supervision to ensure that the offender remains free from illicit substances and in order to ensure that the offender receives the appropriate assistance so far as rehabilitation is concerned.
9. Near the end of the report the author sets out that she asked the offender whether there was anything he wanted her to say to the judge, to which he replied, "Yeah, I want you to write down how sorry I am. I don't want to do that anymore. I want to get a job back and do the right thing".
10. Even so, the statement is absolutely untested. I am not prepared to find on balance that the offender is remorseful based on that utterance to the author of the report. Noting the offender's record and breach of parole I am not able to find on balance that he is unlikely to re-offend. If the offender can receive the appropriate guidance and assistance and undergo some drug rehabilitation his overall prospects of rehabilitation will certainly improve but on the material before me I am quite unable to find on balance that there are good prospects of rehabilitation.

Submissions of the parties

1. Mr Wilson for the offender provided written submissions which became MFI 1 on sentence. He submits, appropriately, that the factors enunciated in Bugmy v The Queen are enlivened. I have found that to be the case.
2. The submissions then go on to submit in some little detail that the sentence imposed in respect of the offending for which the offender now appears for sentence should be backdated to the revocation of parole i.e. 7 February 2019. Parole was revoked on that date but the offender was not arrested until 20 February 2019. The submission is made that "if the Wagga Wagga offences (i.e. the offences for which the offender was sentenced by the Local Court on 20 May 2019) were included in the list of the subject charges before this court then the court would be invited to backdate the sentences to the date of revocation of parole, namely 7 February 2019".
3. This is why I took some time with the commencement dates of the sentences when dealing with the criminal history. The sentence imposed by the Wagga Wagga Local Court in respect of the Break Enter and Steal offence on 20 May 2019 commenced on 7 April 2019. The Albury matters for which the offender was on parole in December 2018 and January 2019 were a series of serious driving matters.
4. In the course of oral submissions taken by telephone from Mr Wilson he referred to the decision of Little v R [2018] NSWCCA 63. On the issue of backdating there are also the authorities of R v Niass unrep. NSWCACA 16 Nov 1988 and Hampton v R [2014] NSWCCA 131 and Hamilton v R [2016] NSWCCA 59. I also note and have regard to the decision of Refaieh v R [2018] NSWCCA 72 at [41]ff per N Adams J. None of these authorities in my view assist Mr Wilson in his submission. I will however date the aggregate sentence to be imposed in this matter from 7 April 2019 in the interests of complying with the principle of totality. Given that the sentence will be for practical purposed partially cumulative upon that balance of parole is another reason for a finding of special circumstances.
5. It is uncontroversial that the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty. The other subjective matters raised have been dealt with.
6. The Crown submitted, correctly in my view, that the Form 1 matters would have little impact on the sentence to be imposed in this matter. I understood the Crown to submit that little weight should be given to the report of Robyn Fowkes noting the reluctance of the offender to engage and the number of assumptions that she made in her conclusions. The Crown opposed the back dating of the sentence to February, putting in effect that the offender would be receiving nothing for the breach of parole. There is some substance in that submission.

General Remarks

1. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. Section 3A sets out the purposes of punishment, namely: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, and (g) to recognise the harm done to the victim of the crime and the community.
2. Section 5 provides in effect that a court should not impose a sentence of imprisonment unless, having considered all possible alternatives, no other sentence is appropriate.
3. I indicated at the sentence hearing that I proposed to impose an aggregate sentence. I did not understand either party to dissent from that suggestion. These remarks have been reduced to writing and will be made available to the parties upon pronouncement of sentence. I will set out the sentences that would have been imposed had separate sentences been imposed in a table which appears hereunder. Both parties were provided with the table (obviously without the indicative sentences) at the sentence hearing.
4. If separate sentences were imposed there would need to be some partial accumulation to recognise the different offending and the different victims. However the sentences in respect of the substantive matters on H262471897 there would be a substantial degree of concurrency. There would also be substantial concurrency with the sentences in respect of the two matters relating to the victim Yi Peng.
5. H262471897 Seq. Offence Description Max. penalty Indicative sentence 3 Break Enter and Steal - s 112(1) Crimes Act Break and enter and steal at premises of Lynda Berben at Coolamon on 14 years 18 months (starting point 2 years) 29 Dec 2018 6 Dishonesty Obtain Financial Advantage - s 192E(1)(b) Crimes Act Transfer of $2890 to bank account on 14/15 January 2019 10 years 12 months (starting point 16 months) 7 Deal with Proceeds of Crimes -s 193C(2) Crimes Act Withdrawal of $500 of moneys deposited on 3 years 3 months 15 January 2019 (starting point 4 months)

1. H70550519 Break and Enter and steal at home of 18 months 1 Break Enter and Steal -. 112(1) Crimes Act Yi Peng at Bourkelands on 14 years (starting point 2 years) 11 Feb 2019 2 Take and Drive Conveyance - s 154A(1)(a) Crimes Act Take and Drive 5 years 9 months (starting point 12 months) Yi Peng's Toyota Camry DXM-09Z on 11 Feb 2019 3 Drive Manner Dangerous in Police Pursuit - s 51B Crimes Act - 2nd offence Police pursuit on 12.2.19 involving Yi Peng's vehicle driven by offender in central Wagga at speeds to 100 km/h on 12 Feb 2019 5 years 18 months (starting point 2 years) 6 Break Enter and Steal - s 112(1) Crimes Act Break enter and steal at home of Rachelle Auld at Wagga Wagga on 12 Feb 2019 14 years 1 year 10 months (starting point 2.5 years) 7 Break and Enter with Intent - s 113(1) Crimes Act Break into premises of Jeremy Rowe at Wagga Wagga on 10 years 15 months (starting point 20 months) 12 Feb 2019

12 Aggravated Break enter and Steal (company) s 112(2) Crimes Act Break enter and steal at premises of Brooke and Cameron Roberts at Glenfield Park in company on 15 Feb 2019 20 years with SNPP 5 years Taking into account matters on the Form 1 Form 1 with 8 matters attached NPP 1 year 10 months with balance of term of 1 year 2 months (starting point 4 years)

1. Note - form 1 matters: 2 counts of Dishonestly obtain property by deception - both on 12.2.19 2 counts of Unlawful Entry on Inclosed Lands - both on 12.2.19 2 counts of Carried in Stolen Conveyance - 28/29.12.2018 and 19/20.12.2019 1 count of Intentionally Throw Object at vehicle - 30.12.2018 1 Count Deal with Proceeds of Crimes 30.12.18 Section 166 Certificate - one count of Drive While Unlicensed.

Orders

1. In respect of the matters to which the offender has pleaded guilty he is convicted.
2. In respect of the charge of Driving While Unlicensed attaching to the Certificate pursuant to s 166 of the Criminal Procedure Act the offender is convicted and no further penalty imposed.
3. In respect of the charge of Drive Manner Dangerous in Police Pursuit (sequence 3 of H70550519), the offender is disqualified from driving for the automatic period.
4. The offender is sentenced to an aggregate sentence of 5 years and 3 months with a non-parole period of 3 years and 3 months. The non-parole period will date from 7 April 2019 and will expire on 6 July 2022. Thereafter there will be a balance of term of 2 years from 7 July 2022 and which will expire on 6 July 2024.
5. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
6. The non-parole period is approximately 62% of the total sentence. The reasons for the finding of special circumstances have been enunciated earlier in these reasons but include the need for intensive and extensive supervision relating to reintegration into the community and rehabilitation so far as substances are concerned and the partial accumulation of sentence.

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: 03 July 2020