R v Borg

[2015] NSWDC 393

District Court

New South Wales

Medium Neutral Citation:	R v Borg [2015] NSWDC 393
Hearing dates:	3 December 2015
Date of orders:	03 December 2015
Decision date:	03 December 2015
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Custodial sentences imposed. For orders see [17] – [19].
Catchwords:	CRIMINAL LAW – Sentence – First offence on indictment: break, enter and steal in company – Property damage of $500, theft of charity tins – No persons present – Co-accused discharged at committal – Second offence on indictment, larceny from Woolworths to the value of $982.34 – Committed in company – Co-offender pleaded guilty, sentenced to 18 month good behaviour bond – First and second offence committed 10 days apart – Offender spent one year, five weeks and two days in custody before being granted bail – Offender 45 at sentence hearing, 43 at time of offence and 17 at commencement of criminal history – Lengthy criminal history reflecting longstanding addiction to illicit drugs and the need to obtain money to support drug habit – Offender actively addressing drug addiction and has been drug-free for eight months – Has obtained stable employment and is well-regarded by employer – Special circumstances found, statutory non-parole period varied
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) (Crown) Jason James Borg (Offender)
Representation:	Solicitor for the Director of Public Prosecutions (NSW) Mr Stitz(Offender)
File Number(s):	2014/00058137
Publication restriction:	No

Judgment

1. HIS HONOUR: Jason James Borg stands for sentence as a consequence of adhering to pleas of guilty to two charges. The Crown accepts that the offender pleaded guilty to each of the two charges at the earliest possible opportunity and therefore he is entitled to the maximum discount on the sentence because of the utilitarian value of his early pleas of guilty. That discount is 25%.

2. The first offence was that on 11 February 2014 at Arncliffe he did break and enter a shop known as Elzein Bakery situated at 1A Firth Street, Arncliffe, and in the said building did commit a serious indictable offence, namely, stealing in circumstances of aggravation, namely, that he was in company with another person, Christos Filipopoulos. The thing to note about that offence is that it was committed shortly after 12.20am on Friday 11 February 2014. The bakery was then unattended. The offender and an accomplice forced the doors of the bakery inward, which caused the glass panels in the doors to crack. They then entered the bakery and the co-offender removed four charity tins, each containing money from the counter area, and handed them to the offender who placed them in a bag. After briefly inspecting the counter and the cash register, the pair left the building.

3. The owner of the bakery, Mr Elzein, estimated the damage to the doors and lock at the front of the premises to be $500. He also made an estimate of the cash contained in the four charity tins, but the estimate is absurd and clearly grossly exaggerated, for what purpose I know not. However, the fact that the offender took charity tins can only be described as a “low act”, words that Mr Borg himself used to describe this offence, when being interviewed for the first time about the crimes, by Corrective Services personnel preparing the original pre-sentence report. It is highly likely that the damage to the bakery doors resulted in a greater economic loss than the theft of the charity tins.

4. The second offence was an offence of larceny committed shortly after 3pm on 21 February 2014 from the Woolworths supermarket at Kingsgrove. The agreed facts indicate that the offender was in company with Mr Filipopoulos on this occasion as well. The pair managed to load a shopping trolley with $982.34 worth of groceries and left the supermarket without paying for them. The stolen goods included a large number of caffeine‑charged “energy” drinks, a large amount of canned tuna, a dozen muffins, chips, popcorn, two kilograms of Milo and one kilogram of apples. The bulk of the stolen goods, the valuable stolen goods, were the large amount of energy drinks and the large amount of tuna.

5. Mr Filipopoulos was charged with the same offences, but was discharged at committal on the charge of aggravated breaking, entering and stealing. He pleaded guilty to larceny at the Kingsgrove Woolworths supermarket. He was placed on a bond to be of good behaviour for 18 months.

6. The offender was arrested on 24 February 2014 and remained in custody until being granted bail by my colleague, Hanley DCJ, on 1 April 2015. All told, the offender spent one year, five weeks and two days in custody, essentially for the crime of aggravated breaking, entering and committing a serious indictable offence. That is a serious crime. The maximum penalty is 20 years’ imprisonment. There is a standard non-parole period of five years. However, considering that these were commercial premises which were not occupied at the time of the breaking and entry, that there was little damage to the premises and there was a small amount taken, and that there was no-one present who could have been alarmed by the fact that the offender was in company, this offence is at the very bottom of the range for an offence of aggravated breaking, entering and stealing.

7. The offender is currently 45 years old. At the time of these offences he was 43 years old. He has a very lengthy criminal history which commences with a driving offence at the age of 17. The first relevant charge appears to be one that was laid on 22 July 1991 when the offender was 21. The charge was goods in custody for which he obtained the benefit of s 556A of the Crimes Act 1900, the then equivalent of s 10. However, at the same age he appeared before this Court for supplying a prohibited drug and was placed on the equivalent of a s 9 bond to be of good behaviour for a period of three years. Thereafter the offender committed a number of offences of relating to stealing such as goods in custody, larceny, possession of housebreaking implements, entering a building with intent to commit an indictable offence, receiving stolen goods, trespass, breaking and entering with intent to steal and breaking and entering and stealing. Interspersed with those sorts of charges have been charges relating to the possession of prohibited drugs.

8. The offender’s criminal record extends over 19 pages. He has been in and out of gaol since 1997. His first period of imprisonment appears to be from 15 April 1997 to 13 February 1998. His next period of imprisonment was from 14 August 2002 until 12 February 2003. There was another period of imprisonment from 11 July 2003 to 9 February 2004, a further period of imprisonment between 7 February 2005 and 26 April 2005, then from 2 March 2006 to 16 June 2006 when he was granted bail, but was put back into custody on 27 November 2006 until being granted bail again on 8 March 2007, but was taken back into custody on 9 April 2007 and not granted parole until 16 July 2009. There was a further period of over eight months imprisonment in 2010, a further four months imprisonment in 2011 and another period of four months imprisonment in the early part of 2012 and then another period of imprisonment from 9 April 2012 until 29 February 2013 and then one from 13 March 2013 until 12 June 2013 prior to his being again arrested on 24 February 2014.

9. The offender’s criminal record reflects his longstanding addiction to illicit drugs and the need to obtain money to support his drug habit and also, the pre‑sentence reports tell me, his keeping company with other persons who are addicted to drugs whom he had, on one view, assisted, but on another view of it, been exploited by. Various attempts over the years to wean himself from his illicit drug habit have failed. The offender commenced using alcohol at the age of 14 and became a heavy consumer of alcohol until the age of 17. He started using cannabis at the age of 13 and gave that up at the age of 15 because it interfered with his asthma, however, by the age of 20 had commenced using heroin intravenously until going into the methadone programme in his thirties. He, however, also used amphetamines commencing at the age of 15 and up until the time of his incarceration on 20 February 2014 had been giving himself intravenous injections of amphetamines daily.

10. The first pre-sentence report tells me that the offender had a, “long standing unresolved substance abuse issues and a correlating criminal history”. After being granted bail by Judge Hanley the offender commenced an opiate replacement treatment programme. He admitted to using heroin within the two weeks of commencing that programme because he forgot to attend to obtain his usual dose of the opiate replacement. However, that has not continued. The offender eventually completed the SMART recovery group programme. He has been attending Narcotics Anonymous and continues on the opiate replacement treatment programme. The pre-sentence reports tell me that the offender has been trying “really hard” to get himself off the illicit drugs.

11. In the pre-sentence report of 4 September 2015 it is recorded the offender was working six days per week as a labourer. The most recent report, that prepared for today’s sentencing hearing, tells me that the offender is currently working three days per week, the reduction in the number of days he works being due to work availability. The employer of the offender describes the offender as “a good worker” and he is well‑regarded by his employer, who was prepared to continue to support him as he knows that the offender is actively addressing his drug addiction problem.

12. Community Corrections believe that the offender would benefit from a period of supervision by Community Corrections to assist him with his determination to stay away from illicit drugs and support the steps he has taken in that regard, namely, to continue to attend Narcotics Anonymous and to participate in the opiate replacement program.

13. The Crown has submitted, very properly in my view, that this is a case in which there are special circumstances to break the statutory nexus between the head sentence and the non-parole period.

14. The offender’s criminal history of course does not permit the Court to allow any leniency, but the fact that the offender is now actively addressing his drug addiction, has been drug-free now for eight months and prior to that was in custody for over a year in which, if drugs were available to him, they would have been hard to obtain, indicates that there is a good chance on this occasion of the offender’s staying away from illicit drugs in the future, and therefore staying away from breaching the criminal law.

15. I have come to the view that, allowing for the 25% discount, the appropriate head sentence for the aggravated breaking, entering and stealing is a period of two years and that the time spent in custody, thus far one year, five weeks and two days, is an adequate non-parole period. The offender will, accordingly, be entitled to stay on parole until the expiry of his sentence on 23 February 2016.

16. In respect of the second charge, the charge of larceny, I believe it appropriate to impose a fixed term of imprisonment of six months, to be wholly concurrent with the sentence for the greater offence.

17. Jason James Borg, on the charge that on 11 February 2014 at Arncliffe you did break and enter the shop, Elzein Bakery, situated at 1A Firth Street, Arncliffe, and in the said building did commit a serious indictable offence, namely, stealing in circumstances of aggravation, namely, that you were in company with another person, you are convicted, I sentence you to imprisonment. I set a non-parole period of one year, five weeks and two days commencing on 24 February 2014 and expiring on 1 April 2015. I impose a further period of imprisonment of 46 weeks and five days, to commence upon the expiration of the non-parole period and expiring on 23 February 2016. The total sentence is therefore two years, comprising the non-parole period and the balance of the sentence.

18. I have found special circumstances. You are to be released to parole at the expiration of the non-parole period. You are to report to the City Community Corrections Office within seven days.

19. On the charge that on 21 February 2014 at Kingsgrove in this State you did steal certain property of the value of $984.34, the property of Woolworths Kingsgrove, you are convicted. I sentence you to imprisonment for six months commencing on 24 February 2014 and expiring on 23 August 2014.

**********

Decision last updated: 19 May 2016