R v Babic
[2017] NSWDC 477
•2 August 2017
|
New South Wales |
Case Name: | R v Babic |
Medium Neutral Citation: | [2017] NSWDC 477 |
Hearing Date(s): | Wednesday 2 August 2017 |
Date of Orders: | Wednesday 2 August 2017 |
Decision Date: | 2 August 2017 |
Jurisdiction: | Criminal |
Before: | Tupman DCJ |
Decision: | 1. The offender is convicted on all counts. |
Catchwords: | CRIME — Property offences — Larceny — Break, enter and steal — Aggravated break enter and steal — Break enter with intent to steal — 10 substantive offences — 12 Form 1 offences — Offender pleaded guilty in the Local Court — Offences uncovered by a police strike force investigation — Offences committed primarily on licensed premises, automatic teller machines and floor safes — Connection between drug use and offending behaviour — Offender has substantial criminal record in New South Wales and Queensland — Offender is genuinely remorseful and contrite — Offenders prospects of rehabilitation dependent on his remaining free of illegal drugs. |
Legislation Cited: | Crimes Act 1900 (NSW): ss 112(1)(a), 112(2). |
Cases Cited: | R v Ponfield (1999) 48 NSWLR 327. |
Category: | Sentence |
Parties: | Regina (The Queen) |
Representation: | Solicitors: |
File Number(s): | 2017/00010399 |
JUDGMENT
The offender, Stephen Babic, is before the Court on 10 substantive charges, having been committed for sentence from the Local Court following his early pleas of guilty. They are specifically the following:
Sequence 1: A charge of break, enter and steal committed on 26 December 2015 at the Bogan Gate Golf Club where the offender stole property worth $260, being cash, alcohol and cigarettes.
Sequence 2: A charge of break, enter and steal committed overnight on 26 and 27 December 2015 at the Eugowra Bowling Club where the offender stole the sum of $5,100 in cash. Both of these offences are brought contrary to s 112(1)(a) of the Crimes Act 1900 (NSW) and each carries a maximum penalty of 14 years imprisonment.
The remaining 8 substantive charges are as follows:
Sequence 6: A charge of aggravated break enter and steal on 31 December 2015 at the Tumbarumba Golf Club where the offender stole property whilst in company with an unknown person.
Sequence 7: A charge of aggravated break, enter and steal on 31 December 2015 at the Rosewood Golf Club where the accused stole property, including $4,000 in cash, a small safe and 30 keys whilst in company with another person.
Sequence 9: A charge of aggravated break, enter and steal on 6 January 2016 at the Parkes Bowling Club where the accused stole property whilst in company with an unknown person.
Sequence 10: A charge of aggravated break, enter and steal on 8 January 2016 at the Grenfell Enhance Service Station where the accused stole an ATM and cash of between $2,000 and $2,400 whilst in company with another person.
Sequence 15: A charge of aggravated break, enter and steal on 28 January 2016 at a farm dwelling called Reyonaldsdale in Boorowa where the offender stole property whilst in company with another person.
Sequence 19: A charge of aggravated break, enter and steal on 30 January 2016 at Jingellic General Store where the accused stole property whilst in company with another person named as Chloe Beaver.
Sequence 20: A charge of aggravated break, enter and steal on 31 January 2016 at the Thurgoona Country Club where the offender stole property whilst in company with another person named as Chloe Beaver and another unknown person.
Sequence 23: A charge of aggravated break, enter with intent to steal on 27 December 2015 at the Cootamundra Country Club where the accused broke into those premises in company with another person named as Chloe Beaver with the intention of stealing from those premises.
These eight offences are all brought contrary to s 112(2) of the Crimes Act 1900 as aggravated break, enter and steal offences and each carries a maximum penalty of 20 years imprisonment and, where appropriate, there is a standard non-parole period of 5 years for each of these offences. In each case the statutory circumstance of aggravation is nominated as the offender’s being in company with another person or persons.
The offender asks that when sentencing him for sequence 9, the offence committed on the Parkes Bowling Club on 6 January 2016, I take into account 12 additional offences appearing in a schedule to a Form 1, signed by the him and exhibited in these proceedings. They are the following sequences: 3, 5, 8, 11, 12, 13, 14, 16, 17, 18, 21 and 22. They comprise a mixture of break enter and steal type offences, larceny, larceny motor vehicle, receiving and a property damage charge. I will deal with these offences specifically when addressing the general facts.
The Facts
The facts relevant on sentence are before the Court by way of a lengthy 15-page document which I am informed has been signed by the offender and, in any event, are before the Court acknowledged as agreed facts. The offences were uncovered by a strike force which had been formed to investigate a series of break, enter and steal offences committed primarily on licensed premises, service stations and similar premises in the southern and western regions of New South Wales. A common feature of most of these offences, and part of the task force inquiry, were that automatic teller machines and floor safes were targeted or were the subject of these offences.
Specifically, these are the facts for sequence 1. In the early hours of 26 December at about 2.45am the offender broke into the Bogan Gate Golf Club. He attempted access initially by removing the wooden window architraves around the front window and also tampered with the alarm switch on the front wall. He removed a bulb from a sensor light covering the front door. He, apparently, in fact entered by damaging the front door and forcing the lock. He also damaged a second internal door to gain access to the office storeroom. In the course of this, the alarm activated. He had brought with him an angle grinder or a similar tool. He cut out the locking mechanism of a floor safe in the office and removed $260 in cash. He had driven to the club and had taken the angle grinder with him for the purpose of accessing the safe.
That money has not been recovered. He spent it. There was damage to the premises, as stated, and to the safe. The damage included damage to the external door. The cost of replacement and repairing the damage as a result of this offence was just over $1,500. Some was recovered through an insurance claim, but the club remains out of pocket in the sum of $1,060 and seeks compensation for that amount, which I will order in due course.
Sequence 2 was an offence committed at about 12.30am, that is just after midnight, on 27 December 2015. The offender drove to the Eugowra Bowling Club. He broke into the back door, using a drill to damage the lock. He was dressed in some clothing, including a face covering, to disguise himself. Some of this clothing was of distinctive appearance and later found in his possession. He was captured on CCTV committing this offence. He went to the dome camera apparently activating the CCTV and removed the cover and then turned the camera towards the roof. He also tampered with the security lights at the back of the property, and he had already cut the power to the premises just before he entered at 12.31am. This triggered the back to base alarm and security was notified. After breaking into the property, he gained entry to the ATM in the premises and removed $5,100 in cash from it. He then left in the car.
Just over an hour later, the offender, in company with another person named as Chloe Beaver, attempted to gain entry to the Grenfell Bowling Club. He was disguised to an extent. He used a tool to try and gain access to the front doors by forcing the lock but was unsuccessful. This is sequence 3, an attempted break enter and steal, apparently, and is the first of the Form 1 offences.
Sequence 23 is a charge of aggravated break and enter with intent to steal on 27 December 2015 at the Cootamundra Country Club. At about 4.10am, the offender and a person named as Chloe Beaver broke into the Cootamundra Country Club via the front glass doors. The offender was disguised, including wearing a balaclava and some clothing worn earlier. Once inside, the ATM was pushed over and access gained. As a result, the ATM was extensively damaged and the electronic panels removed in an attempt to gain access to the money inside. This was not successful. This is the last of the substantive offences for sentence but the next in time after sequence 2. Nothing was stolen but there was extensive damage to the ATM as a result of this offence.
Three days later, on 30 December 2015, the offender broke into the Braidwood Servicemen’s Club by using a jemmy bar to force open the front glass door lock. The ATM was actually open and empty. When the offender noticed that, he fled the scene. This is a break and enter with intent to steal and is sequence 5, the second of the Form 1 offences. Nothing was actually taken but obviously there was damage to the door or some other damage because there is a claim for compensation of $577.50 for the damage, which is supported by evidence. There is no evidence that there is likely to be any insurance coverage for this and, ultimately, there will be an order for compensation in this amount.
The following day, 31 December 2015 at 1.43am, the offender went to the Tumbarumba Golf Club with a co-offender who is not named in the facts. They forced open the front glass doors of the club and then forced open a second door leading to the room where the CCTV system and safe were located. The offender Babic attempted to open a large steel and concrete safe in a room at the back of the golf club by using an angle grinder to try and cut away part of the safe’s locking mechanism. This was not successful, but it caused damage to the safe, namely a cut of about 8 centimetres long and 3 centimetres deep on the door. He stole the CCTV system located in a rear room. He forced open a poker machine and accessed the overflow compartment of that machine. There was in fact no money stored in the poker machine at the time. He did, however, remove the CCTV system which had a value of approximately $1,500. When he was charged with this offence, the offender told police that two others committed the offence with him. There was no money taken but the CCTV system was stolen and not returned and there was damage to the safe. It is the first of the aggravated break, enter and steal offences, namely sequence 6.
Sequence 7. About an hour later, at 3am on 31 December 2015, he entered the Rosewood Golf Club with a second co-offender by opening a sliding glass window. He crawled across the floor on his stomach to the bar area before forcing an internal door open to gain access to a storeroom. He there damaged a gyprock wall near the door. There was a smaller storage room inside this room, in which there were three safes used to store cash, documents and poker machine keys. He tampered with the larger safe but did not gain access. He loaded the smaller safe onto a trolley and it was removed by the co-offender. The offender Babic then carried out the medium sized safe. The offenders used trolleys to do this, apparently taken from inside the premises.
When he was arrested for this offence, he told police that there were two other offenders who had been involved in committing this offence; one who stayed outside in the car and, further, he identified himself from the CCTV footage. He told police that they had later cut open two safes with an angle grinder in a State forest nearby, before heading back to Canberra. The offenders shared the money found inside one of the safes, which was $4,000 in cash, and they stole the 30 keys from inside the other safe, none of which has been recovered.
On 2 January 2016 at about 3.30am, the offender broke into the Tumut Golf Club through a locked side access door. He pushed over and opened a freestanding ATM inside the club but did not gain access to the internal cashbox and no other property was stolen. This is another break and enter with intent to steal, the third of the Form 1 offences, namely sequence 8. There must have been damage to the premises and/or the ATM because there is a claim for compensation by the insurer to the golf club, Acerta, in the sum of $2,577.63, which has been paid out to the golf club under the terms of the policy. This will also be an order for compensation in due course.
Sequence 9. At about 2.43am on Wednesday 6 January 2016, the offender entered the Parkes Bowling Club via a side glass door by applying force to the door and thus removing the top hinge, which rendered the locking mechanism inoperable. He located an ATM inside the club and removed it completely. It had been bolted to the floor and fixed to the wall. It had recently been filled and contained $10,000 in cash.
I accept that this was a well-planned and relatively sophisticated offence because this was a very heavy safe, weighing about 115 kilos, as I have said was bolted to the floor and fixed to the wall and had to be transported a distance through the club and down a number of stairs to the car park. He committed this in company with another person. They took the ATM away in a ute and gained access to it later by using an angle grinder on the locking mechanism. The sum of $10,000 was removed.
When arrested, the offender told the police that he had committed this offence with two other people, one of whom he named as Chloe Beaver, and the three of them together had forced open the ATM using an angle grinder and a jemmy, that whole process then taking about an hour. He told police that these funds were used to pay off a drug debt.
Sequence 10. Two days later, on 8 January 2016 at about 3.05am, the offender drove to the Enhance Service Station in Grenfell in a white ute. He stood outside for a while, then drove away and came back again in the ute, towing a trailer. He then drove away again and came back in the ute without the trailer, this latter just before 4am. He then wedged a screwdriver into the front door of the service station to gain entry. The offender Babic and the co offender then entered the store and Babic attached a blue strap to a freestanding ATM inside. He then attached the other end to the tow-ball of the ute and it was driven backwards and forwards a few times to dislodge the ATM and drag it out onto the forecourt where, in company and with the assistance of two co-offenders, one of whom is named as Chloe Beaver, the tailgate to the ute was opened and the ATM was lifted onto the tray of the ute. The ATM was located the following day, not far from Grenfell. It had been cut open with an angle grinder and smashed open with heavy tools. The sum of $2,020 was stolen from this ATM. Damage was sustained overall by the Enhance Service Station at Grenfell amounting to $8,262.50 which is claimed as compensation by the insurer to the service station, namely the GIO. In due course a compensation order will be made for that amount.
It would appear that the trailer that was seen on one occasion driving to the service station had been stolen and that is the subject matter of a larceny charge, which is the fourth of the Form 1 offences, being sequence 11. I have no further facts than that about this Form 1 offence, except that the offender admits having committed it and it is a charge of larceny involving a trailer.
On 13 January 2016, at some stage during the day, between 6.15am and 8pm, a residential home in Primrose Valley was broken into by the offender, who gained entry through a rear window. He stole a Toshiba laptop, a computer bag and a camera from these premises. Whilst the facts do not make this clear, I infer that the house was empty at the time and the resident away for that period of the day. This offence of break, enter and steal is the fifth of the Form 1 offences, namely sequence 12.
Sequence 13. On 13 January 2016, the offender was driving along Jerangle Road at Jingera. He saw a Ford Ranger BJ 54 PE parked on the side of the road with the keys in it. It had a diesel tank stored on the back and apparently a quantity of tools. This road is a remote dirt road which links Cooma to Queanbeyan. The offender decided to steal the vehicle - he was apparently driving with another person initially - with the intention of selling the diesel tank and tools in the vehicle to another person. The vehicle was owned by Dry Plains Contractors. He sold the tools and diesel tank for $500 shortly afterwards and then dumped the vehicle in a nearby National Park and set it on fire. This is a charge of take and drive motor vehicle or larceny motor vehicle. It is the sixth Form 1 offence. The vehicle would appear to have been extensively damaged and the insurer paid out the sum of $13,589.74 for the repairs. That is also claimed by way of compensation to Allianz, the relevant motor vehicle insurer, and will be a compensation order made in due course.
The seventh Form 1 offence, sequence 14, apparently involved the offender and Chloe Beaver receiving motor vehicle 750SUV in Queensland, outside of New South Wales. The facts, as they are, indicate that they received that vehicle in Queensland, knowing it was stolen, and drove it about 926 kilometres into New South Wales until crashing it about 10 kilometres north of the township of Boorowa on 28 January 2016. As I have said, that is sequence 14, the seventh Form 1 offence.
Sequence 15 involves an aggravated break, enter and steal on that day, 28 January 2016, at Boorowa. Sometime just after 7.30am on that day the offender and the co-offender, named as Chloe Beaver, entered residential premises, being a property called Reyonaldsdale in Boorowa, about a kilometre from where they had crashed the stolen Queensland motor vehicle. It is a large rural property which has two residential houses, and some farm storage sheds on it.
The owner had left the premises about a week earlier, had closed up and secured the residences and closed and locked the access gates to the property. Chloe Beaver knocked on the doors to determine whether there was anyone home. The offender Babic then entered through a closed but apparently unlocked door. Inside, the offenders together stole a wireless modem and a laptop from inside one of the residences. There was a Toyota Landcruiser stored in one of the sheds and the keys to that were hidden somewhere. There was also a Bedford fire truck parked inside that shed, in the vicinity of the Landcruiser. The offender Babic tried to steal the Landcruiser by smashing a side triangle window but was unsuccessful. Together with the co-offender, they then stole the water tanker. The keys had been left inside the water tanker because it was set up, ready to be used quickly for firefighting. They then drove the fire truck out of the premises, crashing through and completely destroying a padlocked front gate. They later abandoned this fire truck at about 11.20am in the township of Boorowa. The aggravated break, enter and steal at these residential premises is the substantive count, sequence 15.
Sequence 16 is one of the Form 1 offences and is a charge of attempting to steal the Landcruiser by breaking the window. Sequence 17 is another of the Form 1 offences, namely being a driver or passenger in a vehicle, knowing it was stolen without the consent of the owner, a deemed larceny offence involving the fire truck and sequence 18 is another of the Form 1 offences involving the damage to the padlocked gate when they drove through it. Sequence 19 occurred at about 4.20am on Saturday 30 January 2016 when the offender broke into the Jingellic general store by smashing the front plate glass window. There he stole, for reasons apparently best known only to him, an empty cigarette cabinet by using an angle grinder to cut the padlock from the cabinet before removing the whole thing through the smashed front window. He was in company with Chloe Beaver during this offence. There is nothing more in the facts about this offence from which I can determine anything about it at all. There is no value attached to the cigarette cabinet nor the damage sustained to the property in the facts.
Sequence 20. At about 4.30am on 31 January 2016 the offender broke into the Thurgoona Country Club by forcing open the front glass doors. He had driven to the premises with Chloe Beaver and went back to the car and returned with a screwdriver and sledgehammer. He used these to force open the front doors. He then forced open a freestanding ATM inside which was not locked. He was able to open the door of the ATM and gain entry to the internal cash box from which he stole the sum of $7,130. There was damage sustained when he gained access to the premises. The cost of repairing that damage was $858.48. That, together with the $7,130 stolen from the ATM, is the subject matter of the compensation claim made on behalf of the Thurgoona Country Club and a claim for compensation for half of that is made, which is an order that will be made in due course. Eventually if this is a charge to which Chloe Beaver has pleaded guilty, I presume that an order for compensation for the remaining half will be made.
The same day, that is 31 January 2016, the two offenders went to Braddon Auto Mart and bought a VW Golf for $7,500 in cash which they paid for in $50 notes. This in large part from the Thurgoona Golf Club break enter and steal. This offence of knowingly deal with the proceeds of crime is sequence 22 another of the Form 1 offences.
The offender was arrested on 5 February 2016 together with Chloe Beaver at about 11am from the Talbingo Tourist Park where they were sharing a cabin. They were taken to Tumut Police Station and charged with breaking into the Cooma Golf Club, not one of the matters before me for sentence, but a matter for which the offender was subsequently sentenced in this Court in September 2016 by Judge Hoy. Police executed a search warrant at the cabin and seized a large quantity of items including clothing which matched the clothing seen in the CCTV footage for various of the break enter and steal offences, identity cards matching either him or Chloe Beaver, balaclavas and face coverings, poker machine keys, a large petrol angle grinder, grinding wheels, handheld grinders, numerous handheld tools and other items. There was also DNA testing undertaken on a Russell Athletic jumper which matched the appearance of a jumper worn by a person committing some of these break, enter and steal offences as seen on closed circuit television. Ultimately there was a DNA profile match for the offender Babic from this swab.
As I have said, he was arrested on 5 February 2016. He was interviewed and he indicated that the tools inside the vehicle were there with the intention of being used for committing crimes. At that stage he told police that he intended to make some money so he could go to western Australia. His possession of these items is the subject matter of the last of the Form 1 offences, namely sequence 21 being an offence contrary to s 114(1)(a) namely being armed with instruments including balaclavas, face covering, poker machine keys, tools, grinders and the other items set out in the court attendance notice, with the intention of committing an indictable offence, namely break enter and steal offences.
As I have said he was at that stage charged with a series of other very similar matters and refused bail from 5 February 2016 onwards. Those matters came for sentence before Judge Hoy in this court in September 2016. They involved one charge of larceny, one charge of break enter and steal and three charges of aggravated break enter and steal, each of those aggravated versions of the offence alleging that he was in company with another person. He was not in fact charged with the offences before me for sentence until 10 January 2017. He was then transferred from custody, where he was serving the sentence imposed by Judge Hoy, to the police station at Wagga Wagga. He there participated in an electronic record of interview and according to the agreed facts made full admissions to this raft of offences before me. The facts also indicate that he was cooperative with police and willing to assist in their enquiries. At that stage he told police that he committed the offences because he had accumulated a drug debt and in order to satisfy that debt.
They are the facts relevant for all of the 10 substantive counts and the 12 Form 1 offences.
Objective Seriousness and Specific Deterrence
All of these break, enter and steal offences are serious offences, particularly so the aggravated break, enter and steal offences of which there are seven before the Court. There is also one aggravated break and enter with intent to steal and two break, enter and steal. For the aggravated break, enter and steal, the maximum penalty of 20 years with a standard non-parole period, where appropriate of 5 years, is at least one indication of the seriousness of the offending.
In each case they are further aggravated because at the time the offender was subject to a form of conditional liberty. He was at the time on a 12-month suspended sentence from the Gladstone Magistrate’s Court in Queensland, which had been suspended for a period of three years after he served 56 days in custody. That was for a period of three years from 12 December 2014. Those offences were for very similar matters involving entering premises and committing indictable offences therein. In the large part they were offences of break enter and steal. He was also subject at the time to a bond imposed in the ACT Magistrate’s Court on 16 September 2015 for drive whilst disqualified. The fact that he was on these two forms of conditional liberty of course aggravates his commission of these offences.
In objective terms, it seems to me that, taken as a whole, these are round about the middle of the range or a little below. Some are more or less objectively serious than others. The amounts taken are in some cases relatively small, namely $260 for sequence 1, or relatively large namely $10,000 for sequence 9. For another offence $7,130, for another offence just over $5,000. In some cases, the extent of damage to the property is greater, in some cases less.
Many of the aggravating factors identified in R v Ponfield (1999) 48 NSWLR 327 are present, but not all. Two of the offences, either substantively or as Form 1 offences, are break, enter and steals committed in residential premises, which in objective terms generally would be considered more serious. However, in both cases, the Form 1 offence and the substantive offence in Boorowa, there was no-one present, and it would appear that this was clearly and obviously known to the offender.
In other cases, the premises were commercial premises. For all of those the break ins appear to have been committed in the early hours of the morning, where there was no risk of any person being present and the risk of anyone being present or stumbling on the premises would appear to have been very small. They are matters of fact to be taken into account in assessing the objective seriousness.
In most cases there was a degree of planning, although it would appear that the break enter and steal at the residential premises in Boorowa was more in the nature of a spontaneous break enter and steal committed just after the offender and Ms Beaver had crashed and abandoned the stolen car. On the whole however, they all demonstrate a degree of planning. In most cases the offender took tools to assist with the break ins or to enable breaking into ATMs or safes.
The commercial premises on the whole would appear to have been targeted to obtain access to ATMs or safes. There was a degree of sophistication in the way in which the offences were conducted, namely the use of heavy tools, tools capable of gaining access to large and heavy safes or to be able to access ATMs or drag them out. In most cases it would appear that nothing was returned, certainly none of the cash. There was however apparently no gratuitous damage, being one of the aggravating factors referred to in Ponfield.
Overall, it seems to me that they are more or less around the middle of the range, a little less than that for some of them. None of them is above the midrange in terms of objective seriousness in my view. For those for which there is a standard non-parole period, the fact that pleas of guilty have been entered also means that those standard non-parole periods are not strictly applicable. They must, however, be taken into account when fixing the appropriate penalty.
It seems to me that there is, in some cases, a higher degree of moral culpability than in others. That is especially so in relation to those licensed premises in the more remote rural communities or for those residential premises in Boorowa where a fire truck was stolen. The facts surrounding the offences like that attract a degree of moral approbation. Communities in rural New South Wales rely on community clubs like golf clubs and country clubs and the like as a place to meet, to have social interaction. Many small clubs in New South Wales are finding it difficult to make ends meet and to stay afloat. There would no doubt be a sense of community outrage that a focal point of their community activities, such as a local golf club in Braidwood or Tumut or one of those places is broken into, damaged and property taken, which no doubt these smaller clubs can ill afford.
Equally, presumably, the general community around Boorowa would depend on access to a ready-to-go fire truck with a key in, in the event that it was needed. These offences were committed, it must be noted, in January, a time at which the risk of fire would be higher. To steal something like that, effectively as a getaway car, it seems to me attracts a degree of moral culpability a little above what would normally be seen in any ordinary Form 1 take and drive offence.
The sentences for these offences must also incorporate a significant degree of general deterrence. It must be clear that engaging in an offending spree such as this will mean a term of imprisonment for a relatively significant period of time. Obviously, the s 5 threshold is reached for these offences and the contrary is not argued.
The offending, however, took place over a relatively short period of time, but was sustained offending, and also added to the offending of April, May and November for which the earlier sentence was imposed by Judge Hoy.
The circumstance of aggravation, namely being in company, in general terms is towards the bottom of the range factually for matters that are statutory circumstances of aggravation.
There is a need for specific deterrence in the sentences imposed here. When taking into account the offender’s criminal record, he has a substantial criminal record in New South Wales and in Queensland. I will not at this stage, in order to save time, go through that, but note that there is an entry as a juvenile for a break enter and steal offence. There are convictions as an adult for break enter and steal offences in New South Wales. There are also entries in the Queensland record for similar offending and as I have said, one of those was the subject matter of a suspended sentence bond that was current at the time he committed these offences. There is a need for specific deterrence given this history.
The offender pleaded guilty to these offences in the Local Court, at the first available opportunity, and is entitled to a discount of 25 per cent to reflect the utilitarian value of those pleas. That was significant in these matters. The proof of these offences, should it have been necessary for them to go to one, two or more trials, would have meant quite lengthy periods of trials with a number of people needing to come to court to give evidence from all over New South Wales. The utilitarian value is relatively high given the pleas and the timing of them.
As I said he was sentenced in December 2013 by his Honour Judge Hoy in this Court to an aggregate sentence of 4 years and 6 months, with an aggregate non-parole period of 2 years and 6 months. I repeat that these were for largely similar offending, at roughly the same period of time and he was in fact arrested for them in February 2016, on 5 February 2016, and the search warrant executed at the time highlighted many of the items and connections which were the proof necessary to prove the matters before me. It is unfortunate that the matters were not all charged together so that they could have all been sentenced together in September last year. No doubt there was good reason for that.
The Subjective Case of the Offender
I now then turn to the subjective case before me, which is largely the same subjective case as was before Judge Hoy in September last year. The offender is now 34. I have a pre-sentence report which was before Judge Hoy in September last year. Because the offender has been in custody, not much has changed, although he has taken more steps towards his rehabilitation since then.
He comes from a stable childhood with no significant social issues. His parents are present in court to support him and have supported him throughout these rather lengthy sentence proceedings since September last year and now into this period and will continue to do so. He has five siblings with whom he also has a close relationship. His parents reside in the Goulburn area and in due course the offender would plan to live with them, which is supported by his parents.
When he was 16 the offender witnessed a very traumatic event, namely his best friend passed away in his company after suffering from a brain aneurism. He tried to revive him but was unable to do so. He was in a remote country area, and it took about an hour before help arrived. The offender’s mother is of the view that this has had a long-lasting impact on him and there is reason to accept her opinion in that regard.
At the time he was sentenced in September last year, he had been in a relationship with Chloe Beaver for about a year. At that stage it was intended that the relationship continue, but it seems unlikely that that is the case in the future. He does have two children aged 5 and 3 from a previous relationship but does not have contact with them because his ex-partner refuses that because of what was then his ongoing drug use. That would appear to be the major motivator for his offending on this occasion, on the occasion before Judge Hoy and as an explanation for many of the offences on his record.
He started using alcohol and drugs at the age of 15. His drinking was a problem, but he stopped at about 20, but he then also used a cocktail of drugs including amphetamines, methamphetamine (the drug known as ice), cannabis, cocaine and ecstasy. Over the period of w years up to his arrest in February 2016, his use of the drug ice, escalated considerably and he was using it from 10;to 15 times a day at the time he was arrested. He expressed a desire to enter a residential rehabilitation program to deal with his addictions in due course. Whether or not that is both appropriate and available when he is ultimately released to parole, time will tell.
He had been employed in the mining industry in Queensland for about five years up until three years before his arrest. In February last year he was going to go to Western Australia, but that did not occur. Then he was unable to return to his other job. He has had no income since 2014 and since then, because of his increasing drug use, has relied on this offending to both sustain that drug use and for his daily living.
He also had a significant gambling addiction and would gamble away money as well. He did in fact attempt suicide at the age of 25. He has not taken much advantage of mental health counselling or treatment that has been offered to him in the past. Again, his mother has connected his suicide attempt to the trauma that he witnessed when he was 16, and there would seem to be good reason to make that connection. However, he has not yet made the connection to the extent that he has actively engaged in any treatment to deal with it.
He wrote a letter to the Court when he was sentenced in September last year. I accept from that letter that he is genuinely remorseful and contrite for his commission of the offences. He shows a degree of insight and acknowledges the connection between his offending behaviour and his drug addiction at the time. I accept that he feels exactly the same now as he did back then. He mother has written a letter to the Court as well. I accept both from the submissions made and from the letters, that since the offender went into custody in February last year, he has taken considerable steps towards his own rehabilitation. He has stopped using drugs and also undertaken some education. There are certificates before the Court setting out some TAFE qualifications that he has obtained. He is undertaking some training or certificates in cabinetmaking. He is hoping to get whatever tickets he can whilst in custody, to work in that field when he is released on parole.
There are no institutional offences on his custodial record. He would appear to be taking full advantage of what is offered to him in custody. One of the recommendations made by Judge Hoy when he sentenced him in September was that he undertake the EQUIPS program. That may well help but is not available to him until he gets close to the end of his non-parole period.
In fact, this period of imprisonment was the first time he had ever been in prison in New South Wales serving a sentence. He did, as I have said, serve 56 days in Queensland for something that was subsequently suspended. He appears, as I have said, to have taken advantage of everything that has been offered to him to effect his rehabilitation.
His mother has hopes that he has turned the corner. His prospects of rehabilitation, it would appear to me, are largely dependent on his remaining free of illegal drugs when he is next free in the community. It appears to me there is likely to be some connection between his use of drugs and the trauma that he suffered as a 16-year-old and it seems to me that he would benefit from undertaking some psychological or psychiatric treatment or counselling, either whilst he remains in custody or on his release.
The sentence, as I have said, imposed by Judge Hoy was for 4 ½ years with a 2 ½ year overall non-parole period, all of which commenced on 5 February 2016.
The issue for me is what each of these sentences ought to be and also the commencement date of them to give effect to overall totality. I also am of the view that the appropriate way to deal with these ten substantive counts is by way of aggregate sentences pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). To determine what that should be, it is necessary to look at what the indicative sentences would be. Fortunately, a guide to that and the application of a degree of relativity is provided by the indicative sentences stated by Judge Hoy for the break, enter and steal offence and the aggravated break enter and steal offences. As I understand it, for the break, enter and steal offences he indicated a sentence of 2 years was appropriate and for the aggravated break, enter and steal offences he indicated an overall term of 2 years and 9 months with a non-parole period of about 1 year and 9 months, not exactly the same for each.
The offending before me would appear to be similar, during a similar period, with similar subjective circumstances. There is no difference, it seems to me, in factual terms between sequences 1 and 2. There is little difference in the factual criminality in the remaining seven aggravated break enter and steal offences, except for sequence 9 as a result both of the larger amount involved and also the fact there are 12 Form 1 offences to be taken into account as well. I also note that the maximum penalty for sequence 23, an aggravated break and enter with intent to steal is also 14 years imprisonment, the same as sequences 1 and 2.
So, looking at what would be the indicative sentences for sequences 1, 2 and 23 and using Judge Hoy’s sentence as a guide, they would each be 2 years. The indicative sentence for sequence 9 would be 3 years and 6 months with a 2-year non-parole period. The indicative sentences for each of the other sequences would be 2 years and 9 months with a 1 year and 9 months non-parole period.
If each of these indicative sentences was actually imposed, and of course that is not what an indicative sentence means, but if each of them was actually imposed and totally accumulated on each other, it would be a very large head sentence, somewhere well in excess of 20 years. That of course is too much in the circumstances. I will then be imposing an aggregate sentence. I have come to the conclusion that for all of the substantive offences an aggregate sentence of 6 years overall with a 4 year overall non-parole period is appropriate. There are special circumstances, largely being the fact of partial accumulation with the pre-existing sentence.
The issue then becomes when should they all start. I must take into account overall totality and effectively ask the question, what would have been the appropriate overall term of imprisonment had all of these matters been sentenced at the same time, namely those sentenced by Judge Hoy and those sentenced by me. I have ultimately come to the conclusion that it ought to have been 6 ½ years overall with 4 ½ overall non-parole period. That, if my maths is correct, will have the impact of his being required to spend an extra 2 years in custody before he is due to be released on parole with a remaining parole period of 2 years thereafter. For that reason, I will be commencing my aggregate sentences on 5 August 2016 to give effect to that.
Formal Sentence Orders
For those reasons I make the following formal orders:
(1)The offender is convicted on all counts.
(2)Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999, I set an aggregate sentence for each of sequences 1, 2, 6, 7, 9, 10, 15, 19, 20 and 23 of 6 years comprising a non-parole period of 4 years commencing 5 August 2016 and expiring 4 August 2020, with parole thereafter of 2 years commencing 5 August 2020 and expiring 4 August 2022.
(3)The indicative sentences as follows:
Sequences 1 and 2: 2 years.
Sequences 6, 7, 10, 15, 19, 20, 23: 2 years, 9 months with a 1 year and 9 months non-parole period.
Sequence 9: 3 years and 6 months with 2-year non-parole period.
(4)I have taken Form 1 offences, sequences 3, 5, 8, 11, 12, 13, 14, 16, 17, 18, 21 and 22, into account when sentencing for sequence 9.
(5)I recommend that he be released to parole at the expiration of the non-parole period, to be subject to supervision with special reference to drug and alcohol relapse and psychiatric/psychological counselling and treatment.
(6)I make the following orders for compensation:
Sequence 1: $1,060 to be paid to Bogan Gate Golf Club.
Sequence 5: $577.50 to be paid to Braidwood Return Soldiers Club.
Sequence 8: $2,577.63 to Acerta.
Sequence 10: $8,362.50 to be paid to GIO.
Sequence 20: $3,994.24 to be paid to Liverpool Catholic Club.
Sequence 13: $13,589.74 to be paid to Allianz Australia Insurance Ltd.
**********