R v Attard

[2019] NSWDC 722

District Court

New South Wales

Medium Neutral Citation:	R v Attard [2019] NSWDC 722
Hearing dates:	31 October 2019
Decision date:	31 October 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 6 years with a non parole period of 4 years 6 months.
Catchwords:	CRIME - SENTENCE - aggravated break and enter and commit serious indictable offence; break, enter and steal.
Legislation Cited:	Crimes Act 1900 (NSW), ss112(2) and 112(1)(a)
Category:	Sentence
Parties:	Regina (Crown) Joshua James Attard (Offender)
Representation:	Mr Ranadive (ODPP) Ms White (Counsel for the offender)
File Number(s):	2018/00312897; 2019/00022668
Publication restriction:	Nil

Judgment

1. Joshua Attard, you appear for sentence today in relation to two offences.

2. First, the offence of aggravated break and enter and commit serious indictable offence. This offence involves a contravention of s 112(2) of the Crimes Act. The maximum penalty for the offence is 20 years imprisonment and there is a standard non-parole period of 5 years’ imprisonment.

3. Secondly, the offence of break, enter and steal. This involves a contravention of s 112(1)(a) of the Crimes Act. The maximum penalty for that offences is 14 years imprisonment. There is no standard non-parole period for that offence.

4. In addition to these two principal offences, you have asked me to take into account, in relation to each of them, one matter on a relevant Form 1, each of which I have certified.

5. In addition to the two principal offences and the two matters on the two Form 1’s, you have consented to me dealing with one matter that remains on a s 166 certificate, namely furnishing false information to a licensee. The maximum penalty for that offence is a fine of $5,550. There is no term of imprisonment for that offence. By reason of the penalties that I shall be imposing upon you in relation to the two principal offences, that s 166 certificate matter is, pursuant to s 10, dismissed.

6. The facts surrounding the two principal offences and the matters on the two Form 1’s are contained in two statements of agreed facts. Slightly recast by me as to style but not substance, those facts are as follows.

7. On 12 October 2018, Ms Sylvia Benavente lived with her mother and her two children in residential premises in Casula. At about 12.30pm, Ms Benavente’s mother and the children left those premises. Ms Benavente took the opportunity to have a nap in the front room of her house, and it would seem she slept soundly between 12.30pm and 5.30pm.

8. But at some time between those hours, you managed to gain entry into her house. First, you tried to push open a window to the garage, but that was unsuccessful. Then you broke the window in the kitchen. Again, you were unsuccessful in gaining entry. Finally, you removed the window in the living and dining area of the house, broke it and cut the fly screen using a butter knife that you had in your possession. You then entered Ms Benavente’s home and ransacked it.

9. During all of this, Ms Benavente remained asleep in that front bedroom, even when you entered that room – because, amongst all the items that you stole that day, you stole a set of headphones from a tall boy cupboard in the bedroom.

10. You also took a wide variety of other items. They are set out in the agreed facts. I do not propose to read out all of them, but some were quite valuable, including a gold ring with diamonds, a car key and a mobile phone.

11. In 2019, Mr Attard, a mobile phone is a vital piece of equipment for most people’s lives. It’s not just used to communicate orally, it contains a great deal of personal data.

12. In any event, about half past 5, Ms Benavente woke up and no doubt she was astonished, if not frightened, to have seen that: pieces of furniture in her house had been moved; the house had been ransacked; and the back door was wide open.

13. Ms Benavente contacted a friend and then the police. They swiftly came to the premises and later that evening, using a tracker dog, you were found not far from her house.

14. When you were discovered by the police, they found on you quite a lot of what you had stolen from Ms Benavente and, by virtue of their diligence, the police found the balance of what you had stolen - which had either been discarded or, for some reason or other, was on a path or a track that you had either run or walked along. So that all of the items that you stole from her were ultimately returned to her.

15. It is these facts which constitute the first principal offence of aggravated break and enter and commit serious indictable offence. It is the possession of the butter knife, being an implement capable of house breaking, which constitutes the matter on the relevant Form 1.

16. In terms of its objective seriousness for an offence of its kind, the first principal offence hovers somewhere equidistant between the middle and the bottom of the range.

17. That first principal offence was additionally aggravated by two considerations: first, it was committed within the home of the victim; and secondly, your long criminal history engages the considerations of Veen (No 2).

18. The matter on the relevant Form 1 can properly be regarded as part of the criminal conduct captured by the first principal offence and therefore there will be no meaningful or significant increase in the sentence by reason of that matter.

19. After you were arrested in relation to the first principal offence, you were granted bail.

20. Less than two weeks later, you went to residential premises at Parklea. These premises were occupied by Ms Mozafari and Ms Rahimi. About 8.30am, each of them left those premises, presumably to go to work. All the doors and the windows were securely locked. Sometime between 8.30am and 5pm you broke into that residence and, again, you ransacked the place.

21. When Ms Mozafari returned home at half past five, she discovered that the back sliding door was open and she discovered the ransacking of her home. Unlike the first principal offence, the very significant quantity of items which you stole (some of which had sentimental value to your victims) has never been recovered. You disposed of those items and it is the disposition of the property which constitutes the matter on the relevant Form 1.

22. In terms of its objective seriousness for an offence of its kind, the second principal offence is a mid‑range offence. It is additionally aggravated by three considerations: first, it occurred in the home of the victims; secondly, your criminal history which, as I have already said, invokes the considerations of Veen (No 2); and thirdly, because you were on bail.

23. You are now 37 years of age and so in 2018 you were 36.

24. You have been offending since you were a juvenile. Your offences as a juvenile cannot be held against you. But since you were an adult (since about 2000) you have consistently and repeatedly come before the Courts for offences of stealing, break and entering, car stealing, demanding money with menaces and the like.

25. Yet again, it is difficult for the Court to form a clear impression of your criminal history or trajectory because, yet again, the criminal history appears like a deck of shuffled cards. There is no clear chronological order to the material contained in the printout. But the complaints of the judges of this court are persistently ignored. But it is sufficient for my purposes to note that, in the years since you first came before the Local Court as an adult, you have, over and over and over again, committed offences involving similar offences to the ones that you appear before the Court for today. Hence, Veen (No 2) is engaged as an additional aggravating factor.

26. Why have you committed these offences? Why do you repeatedly commit these types of offences?

27. In my judgment, you have been doing this because of the quite appalling childhood that you had. Your father was a drunken brute who repeatedly inflicted violence against your mother in the presence of you and your siblings; and he repeatedly and excessively physically abused you and your siblings.

28. Having damaged your mother and you and your siblings both physically and undoubtedly psychologically, he went out of your life when you were very young - about eight years of age.

29. A couple of years later, your mother formed another relationship with a man you regarded as your stepfather. He was a good role model for you. Tragically, he was murdered in 2012. He was shot dead in his own home. It would seem that the attackers intended their violence for a next door neighbour who was a drug dealer.

30. Your tragedies in life were not limited to what I just described. Your brother was the subject of an attack on his life, but he has fortunately survived.

31. Not surprisingly, you have sought to self-medicate in relation to what can only be described as a dysfunctional upbringing in the sense used by the High Court in R v Bugmy. You have been abusing drugs since you were 7 years of age. When you were 7, you secretly smoked a bong that your father had left lying around the house. Then you seriously started to abuse drugs when you were 11 years old. First, cannabis. Then, when you were 13, heroin - and that has been your drug of choice since. But you have also used (or abused) benzodiazepines, cocaine, ecstasy, ice, and alcohol.

32. At one point, you were spending three and a half thousand dollars a week to maintain your drug habit. Of course, that three and a half thousand dollars a week was not being paid for by honest work. You were committing crime over many years to support a drug habit that, in my judgment, was a direct result of the abusive childhood you received.

33. At 13 years of age you were living on the street.

34. You have, during the course of your long engagement with the criminal justice system, had opportunities to address your drug and alcohol issues. But you have quite frankly told the author of a report given to me today that you weren’t sufficiently motivated to benefit from treatment at those times. You admitted that you “…only sought treatment to tick the boxes following criminal charges and not because [you] intended to abstain from drugs.”

35. I regard that admission, Mr Attard, as being quite impressive. To admit to lying to a court involves a degree of insight that one often does not see. Rather than being something for which you are to be criticised, the fact that you were frank and honest and said that you had not been a willing participant in the past is something that positively goes to your prospects of rehabilitation.

36. You have had two relationships. To the first one there are 2 boys who are now early teenagers. You have not been a good father for them. They are now in the care of the Minister but, fortunately, they are with their mother’s brother. You have, from a more recent relationship, a 3 year old daughter. It seems that she is, in part at least, responsible for what I believe is your current intention to reform your life.

37. A crucial step that you have taken (and which cannot be, in my view, underestimated) is that, whilst you have been in custody recently, you have referred yourself to trauma counselling. The counsellor has provided me with a report. It tells me that you have not previously received any counselling to address the significant and life-long impacts of your complex childhood trauma.

38. My experience Mr Attard is that a person does not really have prospects of addressing long term drug abuse - if that abuse is caused by childhood trauma - unless and until the trauma is addressed. In other words, the drugs are a consequence of the trauma; and in order for the drug addiction to be beaten, the trauma must be addressed and you have now started to do that.

39. Although you did not give sworn evidence of your remorse, I am prepared to accept that you are now remorseful. The Court of Criminal Appeal has more than once said that sentencing judges are entitled to look with scepticism at expressions of remorse which are not made in the witness box. And, generally, I do look with scepticism on such expressions. But in your case, by having regard to the contents of the psychologist’s reports, I am prepared to accept it as being genuine.

40. At this stage in your life, I do accept that you are at a “crossroads.” I can well understand the submission made by the Crown that the “crossroads” in your case is in the rear view mirror. You criminal history supports such a submission. But ultimately I do not agree with it.

41. In your case, both general deterrence (that is, imposing a sentence that will discourage others from doing what you did) and specific deterrence (that is, imposing a sentence that will discourage you) are engaged (although, the significance of general deterrence is subject to the reduced moral culpability arising from your dysfunctional upbringing) - as is the need to protect the public - and as is the need to encourage you to rehabilitate.

42. No sentence for either offence other than one of full-time imprisonment is appropriate and the contrary was not submitted by your experienced counsel.

43. Your counsel, however, has submitted that the start date of the sentence should be backdated to 12 November 2018 to take into account the other matters for which you are currently serving sentences of imprisonment.

44. The Crown has challenged that submission and has submitted that the start date should be, in effect, 11 August 2019 at the time that the drive vehicle under influence sentence expires.

45. I do not accept either submission. In my view, the start date of the sentence should be 12 May 2019 which was the start date of another break and enter offence. It would have been reasonable for all three break and enter offences to have been sentenced on the one occasion. The fact that they got separated and fractured is not really your fault.

46. Your counsel has also made a submission that there should be a finding of special circumstances. Given your history, and notwithstanding the subjective matters to which I have referred, I decline to make a finding of special circumstances. The non-parole period which you will serve will be sufficient to encourage your rehabilitation, as will (what I regard to be) a lenient head sentence. In that regard, the common law has always been that a sentencing judge is entitled to exercise leniency. The sentence I am going to impose, in my view, is lenient and it is deliberately so.

47. I intend imposing an aggregate sentence. It is therefore necessary for me to state the indicative sentences which underpin or inform that aggregate sentence.

48. In so far as the first principal offence of aggravated break and enter is concerned, and taking into account the matter on the relevant Form 1, except for your plea of guilty, the indicative sentence would have been 5 years imprisonment. Because of your early plea, the indicative head sentence is 3 years and 9 months and the indicative non-parole period is 2 years 9 months.

49. In so far as the second principal offence is concerned, and taking into account the matter on the relevant Form 1, except for your plea of guilty, the indicative sentence would have been 6 years imprisonment. After the discount of 25% for your early plea, the indicative sentence is 4 years 6 months.

50. Joshua Attard, for the offences of aggravated break and enter and commit serious indictable offence and break and enter and steal, I sentence you to an aggregate term of imprisonment of 6 years.

51. I fix a non-parole period of 4 years and 6 months to date from 12 May 2019 and which will expire on 11 November 2023.

52. I fix a balance of 1 year and 6 months to date from 12 November 2023 and which will expire on 11 May 2025.

53. I refer you to the Parramatta Drug Court for assessment as to your suitability to participate in the compulsory drug treatment correctional centre program.

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Decision last updated: 03 December 2019