Police v VIMPANI

[2008] NSWLC 14

Local Court of New South Wales

CITATION:	Police v VIMPANI [2008] NSWLC 14
JURISDICTION:	Criminal
PARTIES:	POLICE VIMPANI, Dean
FILE NUMBER:	H14675968; H18808541; H141799293; H33391687 H29670130; H30761803; H32376662;
PLACE OF HEARING:	Albury Local Court
DATE OF DECISION:	07/15/2008
MAGISTRATE:	Magistrate G Lerve
CATCHWORDS:	Multiple offending – Break Enter and Steal – cumulation of sentence – breach of conditional liberty – efforts at rehabilitation prior to sentence
LEGISLATION CITED:	Crimes Act, 1900
CASES CITED:	Pearce –v- The Queen (1998) 103 A Crim R 372 R –v-Barlow [2008] NSWCCA 96 R –v- Bolter [2002] NSWCCA 435 R –v- Doan (2000) 50 NSWLR 115 R –v- Dodd (1991) 57 A Crim R 349 R –v- Gordon (1994) 71 A Crim R 459 R –v- Harris [2007] NSWCCA 130 R –v- Jones unrep. NSWCCA 30.6.1994 R –v- Kite [2008] NSWDC 7 R –v- Merrin [2007] NSWCCA 255 R –v- Nguyen [2007] NSWCCA 14 R –v- Tolley [2004] NSWCCA 165 R –v- Wallace [2006] NSWCCA 63 R –v- Zamagias [2002] NSWCCA 17
TEXTS CITED:
REPRESENTATION:	Mr. R. Kanakaratne, Solicitor, Office of the DPP Sgt. A. Seccull, Police Prosecutor Mr. T. Hemsley, Solicitor
ORDERS:

1. These matters came before me on 23 June 2008, a list day. There are seven different sets of papers relating to an equal number of series of offences. Many of the offences on which I have to pass sentence are Break Enter and Steal offences. When the matters came before me on 23 June 2008 I took the view that they required consideration beyond what was possible on a busy list day. Accordingly, I adjourned the matters in order that I could properly consider the matters. Given the significant number of offences, and some of the issues involved, I have reduced my remarks on sentence to writing.

H14675968 – Steal from the Person; Fail to Appear

2. I will deal with the series of matters in chronological order. The first matters are contained within the papers H14675968, and are offences of Steal from the Person and Fail to Appear. The offences occurred on 25 May 2002 and first came before a Court on 18 September 2002. The notation on the papers is unclear as to whether the offender was in attendance on that date but the matter was adjourned to 11 October 2002. There was no appearance of the offender on that date and a warrant was issued for the arrest of the offender. The matters then came before the Court on 18 October 2007, 22 October 2007 and 23 October 2007. Pleas of Guilty were entered in October. The matters have then had a number of appearances before the Court waiting on decisions as to what was to occur with some of the other matters. Given the non-appearance I allow what I consider to be a generous 15% for the utilitarian value of the plea of guilty. The utilitarian value in the plea is the authorities not having to resurrect the file and find witnesses in respect of something that occurred many years ago.

3. The offence of Steal from the Person arose out of an incident at and near the railway station at Glenfield, near Campbelltown. Cameron MacRaild, the complainant was on a train in the morning of 25 May 2002 travelling from Campbelltown to Sydney. He had with him his laptop computer and other items of personal property in a backpack at his feet. The offender sat opposite the complainant in the train carriage. As the train approached Glenfield railway station the offender grabbed the backpack containing the computer and other personal items and fled from the train carriage and over the footbridge at the Glenfield Station. CCTV was obtained from both Campbelltown and Glenfield Stations. That footage clearly shows the offender. The offender was arrested on 11 June 2002.

4. The facts indicate that the offender was acting in concert with another person at the time. Those facts also allege that the co offender punched the complainant a number of times. The charge on which I am to pass sentence is a charge of Steal from the Person and not a charge of robbery. I ignore the issue of the punching.

5. The Fail to Appear is unremarkable, as most of those offences are. However, the offender was at large for over 5 years. The offence of Steal from the Person I assess at being at or slightly lower than the halfway mark on the scale of seriousness for such offences.

H18808541 – Break Enter and Steal

6. The offence occurred on 8 February 2003 but first came before the Court on 22 October 2007. A plea of guilty was entered on 23 October 2007 and accordingly, I allow the full 25% discount for the utilitarian value of the plea of guilty. This matter has also had a number of mentions before the Court, essentially because of issues relating to some of the other matters with which I now have to pass sentence.

7. On or about 5 February 2003, Kerry McIntosh, the victim in the matter secured her premises at 9 McCubbin Way, Claymore and thereafter went to Queensland on holiday. A trusted neighbour had access to the premises. That neighbour went into labour on 8 February and was released from hospital on 11 February 2003. On 11 February 2003 it was discovered that entry had been gained to the premises by smashing a front window. A significant quantity of household electrical goods were stolen, namely, two television sets, a DVD player, a CD player, an electric guitar and a Sony Playstation. The total value of the property was $1300. Fingerprints were detected at the premises that were later identified as belonging to the offender. Attempts to locate the offender were unsuccessful.

8. This offence occurred at residential premises. Although the intrinsic value of the property taken is not particularly high, the offence would have cause considerable inconvenience to the householder. I assess this matter at about the mid range of seriousness of break enter and steal type offences.

H141799293 – Break Enter and Steal; Goods in Custody

9. These offences occurred on 30 March 2003 at Tuross Head on the south coast of New South Wales. There is no Court Attendance Notice or Charge Sheet as such in respect of these offences, but there are copies of the relevant First Instance Warrants. The offences involve the breaking and entering into a storeroom of the Tuross Head Country Club and stealing alcohol, soft drink and meat therefrom and having $10 of 10 cent coins that were reasonably suspected of being stolen. The facts are apparently to be gleaned from a “COPS” entry. The offender was at the Club premises drinking. CCTV footage shows the offender going to a locked storeroom area. Entry was obtained by manipulating a window. Staff at one stage challenged the offender who was in the kitchen area. He was observed by some staff members to be carrying some of the alcohol. Two cartons of beer, a bottle of rum, some ginger beer and tray of lamb chops was taken. Fingerprints were found at the premises that were later identified as belonging to the offender. While at the Club the offender changed a quantity of coins that were suspected to have been part of the proceeds of another break and enter offence. As previously indicated, warrants were issued for the arrest of the offender.

10. These matters first came before a Court in October 2007. My interpretation of the notes on the Court papers indicates that a plea of guilty was entered at either the first or second appearance, and accordingly, I allow the full 25% for the utilitarian value of the plea.

11. I assess the criminality in respect of the Goods in Custody as being well towards the lower end of the scale, and the break and enter offence at below the half-way mark on the scale of seriousness for such offences, noting that they were commercial premises and the amount of property taken was not significant. This offence appears to be, and I deal with it on the basis that it was very much a crime of opportunity with little or no planning.

H33391687 – Break Enter and Steal; Take And Drive Conveyance

12. Between 8.30pm and 10.30pm on 1 December 2006 the offender broke into and entered the premises of Mr. Matthew O’Connor at 91 Wollomai Street, Finley. While inside the premises he looked around and stole a set of car keys belonging to the victim’s vehicle, some DVDs and a bottle of liquor. The offender then left the premises and went to the vehicle, which was parked outside the premises. Using the keys he took from the premises he started that vehicle and drove it away. The victim was woken by his vehicle being driven away.

13. The vehicle was recovered some short distance from the premises. The DVDs and the bottle of liquor were still within the vehicle. Swabs were taken from the bottle and sent for DNA analysis that revealed a profile consistent with the offender.

14. The offender was arrested in respect of these matters on 17 October 2007 at the Federal Hotel, Finely, where he was working at the time. When questioned the offender told police that he could not remember committing this offence. He submitted to a buccal swab.

15. Given that the charge on which I have to pass sentence is brought as a charge of Break Enter and Steal simpliciter contrary to s. 112(1) of the Crimes Act, 1900 I am obliged to ignore the fact that the victim was actually within the premises at the time of the commission of the offence. However, despite the limited amount of property taken, I am of the opinion that this is a relatively serious example of a break enter and steal offence, committed as it was at night at private residential premises. Although the property taken was limited, and that property was later recovered I am of the opinion that this break and enter offence is at or about the halfway mark on the scale of seriousness. The take and drive motor vehicle is an unremarkable example of that type of the offence and indeed, in the circumstances is below the halfway mark on the scale of seriousness. A plea of guilty was entered to these matters at the first available opportunity, and accordingly, the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty.

H29670130 – Break Enter and Steal

16. This matter involves a break enter and steal offence that occurred at the premises of Lorraine Harvey at Appin. There is no fact sheet or other material on the Court file. However, the averment in the Court Attendance Notice indicates that the property taken was a laptop computer, numerous items of jewellery, a camera and $300. The C.A.N. also indicates that the offence occurred between 11.30am and 3.53pm on 26 September 2006.

17. The matter is a break, enter and steal offence and private residential premises from which a significant amount of property was taken. Even on the limited information available, I am of the opinion that this matter is at least at the halfway mark on the scale of seriousness. There was a plea of guilty at the first available opportunity and accordingly, the offender is entitled to the full 25% discount for the utilitarian value of the plea.

H32376662 – Break Enter and Steal (two counts); Take and Drive Conveyance

18. This set of papers involves two offences of break enter and steal and one count of “Take and Drive Motor Vehicle”. The first of the Break and Enter offences relates to the Ambulance Station at Finley. Between 5pm on 30 November 2006 and 8am the following day the offender went to the Ambulance Station at Wollomai Street, Finley and gained access by removing a fly screen from an unlocked bathroom window. Once inside the premises he took medical bags containing medical equipment including needles and syringes and drugs from two different ambulance vehicles. The offender injured himself inside the premises. A swab was taken that when analysed revealed a DNA profile consistent with that of the offender. The offender was interviewed after his arrest. He told police that because of his “heavy addiction to drugs and alcohol” he was unable to recall the incident.

19. The amount of the property taken was $1685.21. Although the intrinsic value of the property was not particularly substantial, I am of the view that this offence is very serious. Finley is a relatively isolated community on the Newell Highway, the main inland route between Melbourne and Brisbane. The Newell Highway carries a significant amount of vehicular traffic, particularly heavy trucks. Potentially, the offender, by taking and interfering with equipment, could well have caused substantial interference with the ability of ambulance officers to carry out vital work.

20. I now turn to the other matters on this set of papers. On the evening of 15 December 2006 Mr. Kieran Pascoe parked his 2003 model Holden Commodore SS utility under the carport of his house at 109 Coree Street, Finley. At some time between 1.30am and 6.30am on 16 December 2006 the offender gained access to those premises by cutting a hole in the flyscreen door and thereafter unlocking it. The main door was closed but unlocked. The offender went to the kitchen, took the keys belonging to the utility and drove it from the premises. The vehicle was later recovered. Fingerprints of the offender were found within the vehicle, as were items of personal property. When arrested the offender told police that due to heavy drug and alcohol addiction he could not remember the incident. He could not give police any reasonable explanation for the presence of his fingerprints and other personal items being within the vehicle.

21. The offence at the Ambulance Station in my assessment is at or slightly above the halfway mark on the scale of seriousness for break and enter offences. Again, with the matter at Mr. Pascoe’s premises I am obliged to ignore that Mr. Pascoe was within the premises. However, that it a matter committed at night at private residential premises. Accordingly, that matter is at or about the halfway mark on the scale of seriousness. The take and drive offence taken by itself is an unremarkable example of that type of offence. The offence is entitled to the full 25% discount for the plea of guilty in respect of the offence at the Ambulance Station. However, initially, a plea of not guilty was entered in respect of the offences committed at Mr. Pascoe’s premises. A brief was ordered and served but the matter was never set down for hearing. Accordingly, I will err on the side of generosity to the offender and allow 20% for the utilitarian value of the plea.

H30761803 – Take and Drive Conveyance; Be Carried in Stolen Conveyance

22. These matters relate to offences of Take and Drive a Conveyance and Allow to be Carried in Stolen Conveyance. Both matters relate to the same vehicle, a Hyundai Excel registered VIG-496, owned by Mr. John Wilson of Brighton le Sands in Sydney. The police fact sheet indicates that the keys were taken from the coffee table from within Mr. Wilson’s premises. I am dealing with a charge of Take and Drive Stolen Conveyance, and accordingly, must ignore the means by which the keys were taken.

23. Police observed the vehicle travelling at a vastly excessive speed at about 1.45am on 22 October 2006. A pursuit commenced but was terminated due to weather and the speed. The vehicle was located at Bexley on 25 October 2006 in an undamaged condition. The vehicle was towed to a police compound were an empty VB beer bottle was located. DNA consistent with the profile of the offender was located on this bottle.

24. The contents of the Police Fact Sheet with the papers cannot sustain both charges as there is no indication of a separate offence of Knowingly be Carried in Stolen Conveyance. However, the offender pleaded guilty to both offences on 22october 2007, the first time these matters came before the Court. As a matter of pragmatism more than anything else I will deal with the charge of Knowingly be Carried in Stolen Conveyance by disposition pursuant to s. 10A of the Crimes (Sentencing Procedure) Act 1999.

25. I assess the charge of Take and Drive as a serious example of that type of offence because of the driving that occurred. The driving involved a police pursuit and very high speed – up to 180 km/h. No charges contrary to the traffic legislation can be brought because of the limitation period of 6 months.

Maximum Penalties

26. The offences of Break Enter and Steal contrary to s. 112(1) of the Crimes Act, 1900 carry a maximum penalty of 14 years imprisonment on Indictment. The offence of Steal from the Person contrary to s. 94 of the Crimes Act carries this same maximum penalty. However, they are matters to which the principles enunciated by the Court of Criminal Appeal in R –v- Doan (2000) 50 NSWLR 115 apply. Grove J. (Spigelman CJ and Kirby J. agreeing) in that decision said at [35]:

The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted must be rejected. As must also be rejected the corollary that a sentence of two years imprisonment should be reserved for a ‘worst case’”.

27. The offence of Goods in Custody is a purely summary matter and carries a maximum sentence of 6 months imprisonment. By virtue of s. 154A of the Crimes Act 1900 the offences of Take and Drive Motor Vehicle carry the same maximum penalty as Larceny, namely, five years on Indictment with the jurisdictional limit in the Local Court being two years imprisonment. In the matters presently under consideration, I am able to cumulate to a total of five years.

Criminal History of Offender

28. In 2000 there are a number of entries relating to warrants issuing because of the non-appearance of the offender. In October 2000 the offender was sentenced to four months to be served by way of Periodic Detention in respect of a number of charges relating to fraudulent cheques. In December 2000 the offender was sentenced to six months imprisonment, wholly suspended in respect of offences of Break Enter and Steal and Goods in Custody. In February 2001 he was sentenced to 6 months imprisonment for Larceny of a Motor Vehicle and the Possession of Car Breaking Implements. He was also sentenced to 3 months imprisonment for Escaping Lawful Custody. In 2002 he was before the Liverpool Local Court for relatively minor regulatory offences relating to unregistered and uninsured motor vehicle and driving while unlicensed.

29. The offences on which I now have to pass sentence were committed at various times in 2002, 2003 and 2006. A significant difficulty faced by the offender comes from the Queensland record. At Bundaberg Magistrate’s Court on 2 March 2003 the offender received a number of suspended sentences for offences of Enter Dwelling and Commit Indictable Offence. The sentences were suspended for three years after serving a period of 9 months. Accordingly, the offender was on conditional liberty, namely suspended sentences, for a very similar type of offending. The commission of further offences whilst on conditional liberty is a matter of “major aggravation” – see for e.g. R-v- Jones unrep. NSWCCA 30.6.1994; R-v- Wallace [2006] NSWCCA 63. Finlay J. (Carruthers & Badgery-Parker JJ agreeing) said in Jones:

“Here the applicant committed this offence whilst on conditional liberty following his conviction for an identical offence. That is, undoubtedly, a matter of major aggravation. When offenders are given conditional liberty - be it on parole or when they are subject to periodic detention orders, community service orders, or on recognizance to be of good behaviour or, indeed, on bail for alleged offences - the commission of additional offences is a serious matter.

It would, in my view, accord with the moral indignation of the community these days that severe sentences be imposed by the courts upon those offenders who abuse their conditional liberty to which they have been allowed for prior offences (or alleged prior offences in the case of a person allowed to bail) by breaking into citizens' homes and stealing therefrom.”

Matters of General Principle

30. I am dealing, inter alia, with six counts of Break Enter and Steal, four of such offences being committed at private residential dwellings, one at commercial premises and the remaining matter at the Ambulance Station at Finley.

31. The Court of Criminal Appeal has on several occasions emphasised the seriousness of the offences of break enter and steal. The effect of the offence of break enter and steal on the victims and the community at large were referred to by the Court of Criminal Appeal in the decision of R –v- Bolter [2002] NSWCCA 435. Sully J (Howie J. agreeing) cited with “complete and respectful agreement” observations made by the learned sentencing judge at first instance, namely (see par [6] – [7] of CCA judgment):

“It has been said time and time again that the invasion of people’s homes and the plundering of their property is a social evil from which the community looks for protection. Householders should be able to leave their homes confident that their belongings will be there upon their return. The trauma of entering a home to find that it has been broken into and property stolen is no light matter. Particularly where the victims are elderly…Added to this of course is the emotional distress at the loss of treasured items of jewellery…Of course the sentimental value far outweighs their monetary value. Even those who are not the immediate victims of burglaries nevertheless feel the effects in escalating insurance premiums by insurers for insurance of the risk of its occurrence”.

32. I too, with unfeigned respect, add my “complete and respectful agreement” to the remarks on her Honour at first instance.

33. In Harris [2007] NSWCCA 130 the Court (McClellan CJ at CL, Hulme & Hislop JJ said at [30]-[31]:

“30 It is also to be observed that nowhere in Attorney-General’s Application (No 1) under s26 of the Criminal Appeal Act, R v Ponfield and Ors was doubt cast on the appropriateness of most of the remarks the Court has quoted from the earlier cases. Indeed in R v Scott [1999] NSWCCA 434, one of four cases considered and in which judgement was delivered at that same time as the guideline judgment, Sully J, with whom the other judges agreed, quoted remarks of the sentencing judge in that case and observed that they were correct in principle. These remarks were: -
“The incidence of break, enter and steal throughout the State, but in particular on the Central Coast of New South Wales, is such as to cause grave disquiet in the community.
In the court of the first trial, a fingerprint expert gave evidence to the effect that he attends some ten locations a day in the course of investigating burglaries. The burglar seems to act with impunity, such is the frequency of this crime, which is carried out with brazen contempt for the law and the rights of innocent householders.
Right thinking members of the community are understandably angry and frustrated at the seeming immunity enjoyed by the burglar. Their dwellings are ransacked. Their goods spirited away where they will be inevitably received by some Cash Converter, loan office or pawn broker. The operators of such businesses deal with vast volumes of stolen goods on a daily basis. The fact that successive governments neglect to pass efficacious laws which might tend to hinder the daily conversion of stolen goods into money is of great comfort to the burglar and of no assistance whatsoever to the victim.
It is a notorious fact that householders face huge premiums, as well as the vast expense of endeavouring to make their homes secure, against those who apparently consider it their right to break into households and take whatever goods suit their purposes.
Clearly the community has the rightful expectation that judicial officers will act responsibly and impose meaningful penalties on the rare occasion when the burglar is apprehended and convicted.
Other would-be burglars just might be deterred when it is learnt that the crime of break, enter and steal is regarded as being grossly serious and will attract serious punishment.”
31 Although in Attorney-General’s Application (No 1) under s26 of the Criminal Appeal Act, R v Ponfield and Ors the Court declined the Crown’s application to provide a guideline in quantitative terms, the Court indicated that a court should regard the seriousness of an offence contrary to s112 (1) as enhanced and reflect that enhancement in the quantum of sentence if any of a number of specified factors are present. Included among the factors mentioned and relevant to the situation of the Respondent here were:-
(i) The offence is committed whilst the offender is at conditional liberty;
(ii) The offender has a prior record, particularly of like offences;
(iii) The multiplicity of offences (reflected either in the charges or matters taken into account on a Form 1 pursuant to s21 of the Criminal Law Procedure Act);
(iv) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value.

34. A little later in 2007, the Court of Criminal Appeal handed down its decision in R –v- Merrin [2007] NSWCCA 255. Howie J. (Gyles JA, Fullerton J. agreeing) said at [38]:

38 In relation to multiple offences of break enter and steal the appropriateness of concurrent sentences has been specifically considered by this Court in R v Harris [2007] NSWCCA 130, a decision handed down a month before the Judge sentenced the respondent. That was a case that emphasised that heavy sentences should generally be imposed for break enter and steal offences committed by repeat offenders on domestic premises, whether or not they were aggravated forms of the offence.

Clearly enough the Court of Criminal Appeal has indicated that deterrent sentences need to be imposed on offenders who break enter and steal from private dwellings.

35. R –v- Merrin is also authority for the proposition that concurrent sentences should not be imposed in respect of multiple Break, Enter and Steal offences. Howie J. (Gyles JA, Fullterton J agreeing) said at [36]:

36 This Court has been at pains to make it clear that sentences for multiple offences are not made concurrent simply because they arise from a single incident of criminality or because they are of a similar nature and committed in similar circumstances. The statement of Simpson J in R v Hammoud (2000) 118 A Crim R 66 concerning the discretion of a sentencing judge in respect of the structuring of offences has to be read subject to what is required in a particular case to reflect the totality of the criminality before the Court. With respect, the Judge has simply failed to approach the structuring of the sentence according to established principle.

36. On this same issue of concurrent sentences for multiple offending, in R –v- Nguyen [2007] NSWCCA 14 at [12] Howie J. (Sully and Price JJ agreeing) said:

“It seems obvious from a number of matters that have been before this Court recently, that there is abroad an insufficient understanding of the principles of totality and of the relevant factors to be taken into account when determining whether to order than sentences be served concurrently or made, at least partially cumulative. There is no rule that sentences committed on the same day or in the same criminal enterprise should be served concurrently. The issue has been considered in a number of decisions of this Court that should make it plain that the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other offence; see generally R –v- MMK [2006] NSWCCA 272. The position was explained in Cahyadi –v- R [2007] NSWCCA 1 as follows:

“27…there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is no regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both”.

37. In any event, not all of the offending in respect of which I have to pass sentence could be classified as one series of offending. Two of the Break Enter and Steal offences occurred in February and March of 2003. The remaining matters occurred at various times between September and December 2006. I am of the view there should be at least partial cumulation.

Pre Sentence Report

38. There is a Pre Sentence Report dated 7 December 2007 on file H32376662. Mr. Hemsley on behalf of the offender asks me to take the contents of that report into account in passing sentence on the offender. By way of background he resides with his mother in Berrigan and relocated to the Berrigan area after the death of his father. He maintains that he had the benefit of a good upbringing. He left school at the age of 14 after completing Year 8 because of his disruptive behaviour. At the time of the preparation of the report he was employed as a chef at the Berrigan Hotel.

39. The offender told the author of the report that he had no memory of the offences, but he accepts the objective fingerprint and DNA type evidence. He concedes that his illicit drug use contributed to his offending behaviour. He also told the author of the report that he has been a heavy user of alcohol since 16 and he has also abused illicit drugs namely cannabis, amphetamines and heroin. He maintains he has abstained from illicit drugs since the death of his father, and further, he has substantially moderated his use of alcohol.

40. Overall, the author of the report was optimistic about the offender’s prospects. Factors leading to this optimism include the fact that he has stability in his life with accommodation and employment. The offender is willing to seek drug and alcohol counselling. It is recommended that if supervision is ordered the offender complete a residential rehabilitation programme. The offender is not suitable for community service and is ineligible for periodic detention.

Plea in Mitigation

41. Mr. Hemsley is to be commended on the manner in which the plea was presented. Everything that could have been done and said on behalf of the prisoner was in fact done and said. I was reminded of the pleas of guilty. I have set out within these remarks the consideration for the plea in each matter.

42. It was put, and I accept that the offender was heavily intoxicated at the time of the commission of each of the offences and as a result of that intoxication he has little if any recollection of the events. The offender accepts responsibility for the offences, and accepts the DNA, fingerprint and other objective evidence implicating him in these offences. In respect of the issue of intoxication, it is with unfeigned respect that I gratefully adopt what was said by Knox SC DCJ in R –v- Kite [2008] NSWDC 7 at [109] in that:

“Intoxication is relevant in determining the degree of deliberation involved in the commission of the offence. In some cases it may mitigate the crime because it caused the offender to act out of character: R v Gordon (1994) 71 A Crim R 459 at 467. In other cases it may aggravate the offence because of the recklessness with which the offender became intoxicated. The voluntary ingestion of alcohol or drugs by an offender, who knows he has a problem with alcohol/drugs and has a history of committing offences while intoxicated may be an aggravating factor: R v Fletcher-Jones (1994) 75 A Crim R 381; R v Sotheren [2001] NSWCCA 425. In many cases intoxication will be neither an aggravating nor mitigating circumstance: R v Gordon at 467-468; R v Wright (unrep, 28/2/1997, NSWCCA, at pp 6-7).

43. In the matter presently under consideration there may well be an argument for taking the issue of intoxication into account as an aggravating feature. It could perhaps be argued that the offender has a history of committing offences while intoxicated. However, in all of the circumstances I will proceed to sentence on these matters on the basis that the issue of intoxication is neither an aggravating or mitigating circumstance.

44. Further on the issue of intoxication, Mr. Hemsley submitted, and I accept, that the offender has ceased the use of illicit drugs since his father died. That apparently, was relatively recently. Still further, the offender has substantially decreased his alcohol intake, and has reduced that intake to one or two beers had with a meal. The offender has work in a hotel in Berrigan. Mr. Hemsley submits, and I accept that the offender’s employer is prepared to have him back. Mr. Hemsley submits that his employer, as a hotel licensee, would be particularly well placed to determine whether or not the offender was every under the influence of liquor.

45. Mr. Hemsley reminded me of the testimonial references tendered on behalf of the offender. Significantly, one of these references is from his partner’s mother – akin according to Mr. Hemsley of obtaining a reference from one’s mother-in-law. I presume that the inference I am asked to draw is that that is no mean feat. Ms. Harte does in fact speak well of the offender, and inter alia, maintains that she has found the offender to be well mannered and respectful, and helpful caring and supportive. Mr. Michael Curtin, the Licensee of the Federal Hotel at Berrigan also speaks highly of the offender, and to his observations, the offender is making a conscious effort to better himself. Mr. Curtain is obviously aware of these matters, and is prepared to continue to offer the offender employment.

46. There is also a letter from the offender’s mother. She accepts that her son has made some bad decisions in the past and accepts that he has had a significant issue with drugs and alcohol. She then goes on to recount how the offender has become an active member of the local Berrigan community. The offender’s mother’s letter is very touching. She is obviously a frail and ill lady. She is concerned as to who shall assist her if her son goes into full time custody. I proceed on the basis that this is directed towards the possible impact of a custodial sentence on a third person or family member. The Court of Criminal Appeal recently reviewed the authorities in this regard in R –v- Hopley [2008] NSWCCA 105 at [39]-[41]. At [39] Johnson J. (Beazley JA, McCallum J. agreeing) said

“The fact of imprisonment almost inevitably leads to hardship, sometimes very serious hardship to third parties. Justice will not have been seen to be administered even-handedly if exceptions are made (on this account) in cases which are not truly, wholly or highly exceptional: R v Edwards at 516; R v Day at 277; R v Gip; R v Ly at 179 [29]”.

In the matter presently under consideration, on the material available I am quite unable to find that the circumstances are “truly, wholly or highly exceptional”.

47. It was then submitted on behalf of the offender that his partner lives at Tuross Heads on the coast of New South Wales. He visits her every few weeks, which entails him taking busses and a travelling time of 12 to 14 hours each way. Mr. Hemsley submitted that no one suffering the affects of drugs and alcohol would undertake such a trip. That much is accepted. It also speaks well of the relationship.

48. Further, there is some advance on the issue of rehabilitation. Although there are no regular arrangements in place the offender speaks occasionally to a drug and alcohol counsellor. There is of course, the issue of Berrigan being quite isolated area.

49. Mr. Hemsley emphasised that the offender has full time employment. I was reminded of the reference provided by the offender’s employer. It was put on behalf of the offender, and I accept, that given that reference it is very unlikely that the offender is involved with illicit substances. As the offender is in full time employment, he is in a position to pay any amount of compensation that is ordered. I note that there is a claim for compensation in respect of the offence relating to the Ambulance Station.

Crown submissions

50. Sgt. Seccull, who appeared in the matters that the Director of Public Prosecutions did not “take over”, submitted that full time custody was the only appropriate sentence. In particular, Sgt. Seccull submitted the fact that a number of the offences were committed while the offender was on conditional liberty was a matter of aggravation.

51. The Crown’s representative maintained that the offences, particularly the offence involving the Ambulance Station were very serious and that a custodial sentence was called for. However, the Crown also conceded that the offender had a particularly strong subjective case given what has occurred in the way of rehabilitation since his arrest. I may have misinterpreted the submissions made by the Crown, but I did not understand the Crown to concede that it would be appropriate to suspend any sentence imposed.

General Remarks

52. I accept that it is the issue of the rehabilitation and steps taken by the offender since his arrest makes a strong subjective case. However, I remind myself of what the Court of Criminal Appeal said in the decision of R –v- Dodd (1991) 57 A Crim R 349. In that decision, the Court of Criminal Appeal (Gleeson CJ; Lee CJ at CL and Hunt J.) said at p. 354:

“As Jordon CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No. 2) (1988) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and the subjective features will vary: see for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 . Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case: Rushby [1977] 1 NSWLR 594.”

The added emphasis on the last sentence of that extract is mine.

53. The situation with the offender presently under consideration is analogous to the situation in R –v- Gordon (1994) 71 A Crim R 459, where the offender in that case had made substantial efforts towards rehabilitation while in custody awaiting sentence. Hunt CJ at CL (McInerney & Sully JJ agreeing) in Gordon said at 468-9:

An important element in the sentencing of the respondent, as the judge correctly recognized, was the positive steps taken by him towards his rehabilitation since being in custody. The reports from the gaol indicate that he had made a very constructive use of his time, undertaking both education and industry. He had been given responsible positions which he had filled with remarkable success. And, as pointed out earlier, he had maintained a co-operative and positive attitude towards members of the staff and his peers. As it is not unknown for drugs and alcohol to be available inside the gaols, this achievement cannot be dismissed simply upon the basis that the respondent has always behaved well when not intoxicated. Indeed, the respondent should be commended for his efforts.

But the sentence to be imposed for any crime must take into account the many different purposes which that sentence is expected to serve - the protection of society, personal and public deterrence, retribution and reform - even though those purposes overlap and sometimes are in conflict: Veen v The Queen (No 2) (1988) 164 CLR 465 at 476. It is important always to have regard first of all to the gravity of the crime viewed objectively for, without such an assessment, the other factors requiring consideration before arriving at the proper sentence to be imposed cannot properly be given their place: Regina v Dodd (1991) 57 A Crim R 349 at 354. Except in well defined circumstances such as the youth or the mental incapacity of the offender, public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular offender (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed: Regina v Rushby [1977] 1 NSWLR 594 at 597-598. Retribution, or the taking of vengeance for the injury which was done by the offender, is also an important aspect of sentencing: Regina v Goodrich (1952) 70 WN 42 at 43; Regina v Cuthbert (1967) 86 WN (Pt 1) 272 at 274; Regina v Rushby (at 598). Not only must the community be satisfied that the offender is given his just deserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done.

What all of those principles make clear is that rehabilitation (or reform) - the hope that the offender will be released back into the community a better person than when he or she left it - is only one of the purposes of punishment and that, even when some measure of rehabilitation has been achieved, such a subjective consideration remains necessarily subsidiary to the need for the sentence to act as a deterrent to the public.

Clearly enough, the issue of rehabilitation is subsidiary to the issue of general deterrence.

54. I am obliged to give proper regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. It is inappropriate to impose any sentence of imprisonment unless I come to the conclusion that imprisonment and no other sentence is appropriate. In the matter presently under consideration, I am very firmly of the opinion that no other sentence than a sentence of imprisonment is appropriate, especially for the break enter and steal offences that were committed while the offender was subject to suspended sentences in respect of similar offences. I am also obliged to give proper effect to the principles enunciated by the High Court in Pearce –v- The Queen (1998) 103 A Crim R 372. I have referred to a number of the binding authorities on the issues of concurrent or cumulative sentences and totality under the heading “Matters of General Principle”.

55. Having concluded that a custodial sentence is the only appropriate sentence, I then consider whether it should be suspended. In R –v- Zamagias [2002] NSWCCA 17 Howie J. said (paragraph [32]):

“Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is to protect the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate.”

Recently, in R –v- Barlow [2008] NSWCCA 96 the Court of Criminal Appeal affirmed the earlier decision in Zamagias.

56. There could be no reasonable argument suggesting that a suspended sentence is not as severe as one that is not suspended. Howie J. in R –v- Tolley [2004] NSWCCA 165 said at [22]:

“A suspended sentence has often been described as a ‘sword of Damocles’ hanging by a thread over the head of an offender while the period of the period of the bond is current. However in R –v- Brady (1998) ABCA 7 (Alberta Court of Appeal) Fraser CJ and Cote J said at [46]:

‘This metaphor exaggerates the severity of a conditional sentence. Even if a conditional sentence could be equate to a sword, it does not hang by a thread, but by a rope, and the only way that this rope can break is if the offender himself cuts it. And with each passing day of the sentence, the ‘sword’ shrinks until if finally becomes a butter knife’.”

57. In the matter presently under consideration, the offender had already received the considerable leniency of the sentences imposed at the Bundaberg Magistrates Court being suspended. It is significant that the matters in Bundaberg were similar type of offences (enter dwelling and commit an indictable offence) to those on which I now have to pass sentence. Given the fact of the offender being on suspended sentences for similar offending at the time of the commission in September, October, November and December 2006, taken with the need for general and specific deterrence, and considering what was said by the Court of Criminal Appeal in the decisions of R –v- Harris (supra) and R –v- Merrin (supra) in all of the circumstances I am of the opinion that the sentences I am about to impose should not be suspended, despite what I have found are the very considerable efforts made towards rehabilitation.

58. In all of the circumstances taking into account the criminality and the various aggravating and mitigating circumstances to which I have referred I assess the total criminality deserving of a total sentence of no less than three years. This illustrates the significance of the decision of R –v- Doan (supra). The criminality is initially assessed without reference to the jurisdictional limit that applies in this Court. From that figure of 3 years must be deducted the allowance for the various pleas of guilty. There is some pragmatic “rounding down” in favour of the offender, and some consideration for totality. I am able to find special circumstances being, inter alia, the need for supervision upon release from custody to ensure that the rehabilitation that has commenced will continue.

Formal Orders

59. In respect of each of the matters to which the offender has pleaded guilty he is convicted. Consequent upon those convictions, I make the following orders:

H146675968 – Steal from the Person; Fail to Appear

In respect of the Charge of Steal from the Person the offender is sentenced to a fixed term of 4 months imprisonment to date from 15 July 2008 and Expire on 14 November, 2008.

In respect of the Charge of Fail to Appear, I deal with by the provisions of s. 10A of the Crimes (Sentencing Procedure) Act 1999 and record a conviction and impose no further penalty.

H18808541 – Break Enter and Steal

I impose of sentence of a fixed term of 6 months imprisonment to date from 15 July 2008 and to expire on 14 January 2009.

H141799293 – Break Enter and Steal; Goods in Custody

In respect of the charge of Break Enter and Steal I impose a sentence of a fixed term of 6 months imprisonment to date from 15 July 2008 and to expire on 14 January 2009.

In respect of the Charge of Goods in Custody, given the custodial sentences I have and will impose this date, and given the nature of the criminality, I also deal with this matter by s. 10A of the Crimes (Sentencing Procedure) Act 1999 and impose a conviction and no further penalty.

H296670130 – Break Enter and Steal

I impose a sentence of a non-parole period of 9 months to date from 15 September 2008 and to expire on 14 June 2009. Thereafter, I specify a balance of term of 9 months to date from 15 June 2009 and to expire on 14 March 2010. Parole is to be supervised.

H33391687 – Break Enter and Steal; Take and Drive Conveyance

In respect of the charge of Break Enter and Steal (Sequence 1) I impose a sentence of a non-parole period of 9 months to date from 15 September 2008 and to expire on 14 June 2009. Thereafter, I specify a balance of term of 9 months to date from 15 June 2009 and to expire on 14 March 2010. Parole is to be supervised.

In respect of the charge of Take and Drive Conveyance, I impose a fixed term of 4 months to date from 15 September 2008 and to expire on 14 January 2009.

H3237662 – Break Enter and Steal (2 counts); Take and Drive Conveyance

In respect of Sequence 1, i.e. the Break Enter and Steal from the Ambulance Station at Finley, I impose a sentence of a non-parole period of 11 months to date from 15 November 2008 and to expire on 14 October 2009. Thereafter, I specify a Balance of term of 9 months to date from 15 October 2009 and to expire on 14 July 2010. Parole is to be supervised.

In respect of Sequence 2, i.e. the charge of Take and Drive Conveyance, I impose a sentence of a fixed term of 4 months imprisonment to date from 15 November 2008 and to expire on 14 March 2009.

In respect of Sequence 3, i.e. the charge of Break Enter and Steal from the home of Mr. Pascoe, I impose a sentence of a non-parole period of 9 months to date from 15 November 2008 and to expire on 14 July 2009. Thereafter, I specify a Balance of Term of 9 Months to date from 15 July 2009 and to expire on 14 April 2010. Parole is to be supervised.

H30761803 – Take and Drive Conveyance; Be Carried in Stolen Conveyance

In respect of Sequence 1, i.e. the charge of Take and Drive Conveyance, I impose a sentence of a fixed term of 4 months imprisonment to commence on 15 September 2008 and to expire on 14 January 2009.

In respect of Sequence 2, i.e. the charge of Be Carried in Stolen Conveyance, I deal with by virtue of s. 10A of the Crimes (Sentencing Procedure) Act 1999 and record a conviction and impose no further penalty.

Where I have imposed fixed terms, those terms are wholly subsumed by non-parole periods of greater length(s) than those sentences of fixed terms.

Gordon Lerve

Magistrate

Albury Local Court

15 July 2008.