R v Box

[2019] NSWDC 786

District Court

New South Wales

Medium Neutral Citation:	R v Box [2019] NSWDC 786
Hearing dates:	17 December 2019
Decision date:	17 December 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 4 years 6 months with a non parole period of 2 years 6 months.
Catchwords:	CRIME - SENTENCE - attempted robbery armed with an offensive weapon - break and enter and commit serious indictable offence - possess prohibited drug - drive motor vehicle with illicit drug in blood - dishonestly obtain financial advantage by deception.
Legislation Cited:	Crimes Act 1900 (NSW) ss97(1),112(1); Drug (Misuse and Trafficking) Act 1985 (NSW) s 10(1); Road Transport Act 2013 (NSW) s111(1)(a)
Cases Cited:	R v Henry (1999) 46 NSWLR 346; R v Ponfield (1999) NSWCCA 435
Category:	Sentence
Parties:	Regina (Crown) Timothy Michael Box (Offender)
Representation:	Mr Diggins (ODPP Campbelltown) Ms Tawagi (Solicitor for the offender)
File Number(s):	2018/00350979
Publication restriction:	Nil

Judgment

1. Timothy Michael Box you appear for sentence today in relation to two principal offences.

2. First, attempted robbery armed with an offensive weapon (sequence one). This involves a contravention of s 97(1) of the Crimes Act. The maximum penalty for that offence is 20 years’ imprisonment and there is no standard non-parole period.

3. Secondly, break and enter a dwelling house or a building and committing a serious indictable offence, in this case stealing (sequence five). This involves a contravention of s 112(1) of the Crimes Act. The maximum penalty for that offence is 14 years’ imprisonment and again there is no standard non-parole period.

4. Although the two offences to which I have just referred do not contain a standard non-parole period, they each have a relevant guideline judgment from the Court of Criminal Appeal, respectively being R v Henry and R v Ponfield.    

5. In addition to those two principal offences, you have consented to this Court dealing with two matters on s 166 certificates.

6. The first of those offences is possessing a prohibited drug (sequence three). This involves a contravention of s 10(1) of the Drug (Misuse and Trafficking) Act. The maximum penalty for that offence in the Local Court is 2 years’ imprisonment.

7. The second of those offences is driving of a motor vehicle with an illicit drug being present in your blood (sequence four). This involves a contravention of s 111(1)a) of the Road Transport Act. The maximum penalty for that offence in the Local Court is 20 penalty units and there is a disqualification period of 6 months.

8. In addition to these four offences, you have consented to this Court calling up a bond imposed upon you in the Local Court for the offence of dishonestly obtaining a financial advantage be deception. In connection with that offence you were on a Community Correction Order for a period of 12 months.

9. I pause to observe that yet again the Court is substantially unassisted by the manner in which your criminal history comes before the Court. I have, for over 10 years, complained about the New South Wales Police Force computer printout. It would be a simple matter of programming to provide the Court with a chronological list of offences and penalties so that the Court could have a clear idea of any offender’s criminal trajectory. But that is not what the Court is provided with. The Court is provided with a list that looks like a shuffled deck of cards. Why the Commissioner does not accede to the requests of many judges of this Court I do not know.

10. The facts surrounding your offending, Mr Box, are contained in an agreed statement of facts and can be summarised as follows.

11. On 14 February 2019, you were on parole for the offence of aggravated break and enter with intent and break and enter a house. You were also on the Community Corrections Order to which I have just referred.

12. Whilst on parole, and whilst the subject of that order, at 9.45 on 14 February 2019 you went to a petrol station at Camden. You went there with the intention of robbing the shop; and you were armed with a weapon, a 30 centimetre screwdriver.

13. You approached the counter and confronted the attendant with that weapon - the dangerous nature of which cannot be underestimated; it had a capacity to cause real harm if it came into contact with any person.

14. Having confronted the attendant (whose age, I interpolate, has not been provided to the Court) with this weapon, in an almost hysterical voice, you demanded that the money in the cash register be handed over.

15. The only reason the robbery did not succeed was because of the metal wires between you and the attendant.

16. The attendant had the presence of mind to press the emergency panic button and to call triple-0 and you fled the scene.

17. In terms of objective seriousness for an offence of its kind, Mr Box, it is somewhere equidistant between the middle and the bottom of the range.

18. It is additionally aggravated by the fact that you were on parole and the subject of the order from the Local Court.

19. About two hours later, you went to the Oakdale Workers Club. It is a small community club. The club was closed by this time - but you had a crowbar with you and used it to force entry into the community club and you stole some of their money.

20. In terms of its objective seriousness it is towards but not at the bottom of the range.

21. Like your earlier offence that night, it is additionally aggravated by the fact that you do were on parole and the subject of the Local Court order.

22. About half an hour after you left the Workers Club, you were pulled over by police. Your motor vehicle was of interest to them because, when you left the service station, your registration number was clearly visible so the police knew which vehicle to look for.

23. When they pulled you over, you were given a random drug test and you proved positive to methylamphetamine.

24. The police searched the motor vehicle and they found 1.60 grams of methylamphetamine.

25. The objective seriousness of each of those latter offences for an offence of its kind is a midrange offence.

26. They are the facts surrounding the four offences for which you are to be sentenced principally, and initially, in this Court.

27. But, as I have already said, you have also consented to me calling up the bond - which I now set aside.

28. The facts surrounding that offence of obtaining benefit by deception were as follows.

29. On 27 September 2018, you had somehow obtained a photograph of a Mastercard of one of your work colleagues and, using that card, you used your mobile phone to provide the details of your work colleague’s credit card to make an online purchase. This was not done to support your drug habit, which was how the other four offences had their origins. This was done to purchase a luxury gift for a friend.

30. In terms of its objective seriousness for an offence of its kind, it is towards, but not at the bottom of the range.

31. Your subjective circumstances (that is, the things about your background) have come to me through an affidavit made by you. Unlike so many offenders who seek to give their subjective circumstances second hand, through the security of the ubiquitous psychologist’s report, you have been prepared to make an affidavit yourself and to tell me in your own words something about your background.

32. You have come from a loving family. You were well raised. You completed the School Certificate and then you began a meaningful workforce career. You started work as a general labourer, and as a carpet layer’s assistant, and as a bricklayer’s labourer - all honest good work.

33. When you were 18 years of age you were involved in a serious motor vehicle accident and you broke your back.

34. This of course had a direct and immediate impact on your employment because as a labourer you needed to work physically. A broken back impeded that and you were off work for two years with rehabilitation.

35. You had wanted to join the navy but your broken back prevented that from occurring. After two years, you then went back to work.

36. You worked for a fire protection company for about three years.

37. At 26 you began to work as a welder. You did that difficult and hard work for five years. In 2012 you actually set up your own welding business.

38. Parallel with this good work history, and your successful struggle to overcome a serious physical injury, was your development of both a gambling addiction and an addiction to illegal drugs. You received a very significant payout for the motor car accident in which your back was broken - and most of it, Mr Box, you put through “the pokies”. And you also developed an addiction to methylamphetamine.

39. It will not come as a surprise to anyone that you have a significant number of offences - and a significant number of them (at least) are clearly connected with your gambling and illicit drug addictions. There are offences of aggravated break and enter, goods in custody, larceny and the like.

40. You have tried on a number of occasions to overcome your drug addiction and your gambling addiction, but without success.

41. There was a point when you were released to parole when it looked as if you might have got over the drug addiction. You were in a relationship with a young lady; but then that relationship came to an end, and you relapsed.

42. That is how these offences came about.

43. With your long term drug addiction, it is very disappointing, Mr Box, that the Community Corrections officers did not supervise you as closely as they might have. I understand the stress and the pressure that those officers are under because they are underfunded. But, nevertheless, if there had been closer supervision, your relapse might have been detected earlier and addressed ,but it was not.

44. You have expressed remorse in the witness box today and I believe that you were telling me the truth. You struck me as an honest witness, Mr Box.

45. Of course, remorse is an important factor in considering a person’s prospects of rehabilitation.

46. Another factor is what they have done in the past to address the causes of their offending – and, on that aspect, your history is not as good as it might have been.

47. But I am told, and I have no reason to doubt it, that your family stands behind you; and that if you do not receive appropriate treatment in gaol (or indeed, even if you do) they will fund you - out of their own pockets (not taxpayers’ money, your family’s money, for which they have worked hard) - they will pay for you to go to residential rehabilitation.

48. I think your prospects of rehabilitation are guarded, Mr Box, but they would be enhanced by a longer period on parole. Therefore, at the end of this judgment, I am going to be making a finding of special circumstances to vary the ratio of the head sentence.

49. Both general and specific deterrents are fully engaged; as is the need to protect the community; but also is the need to encourage your rehabilitation.

50. In relation to all of the offences, except the driving matter, the s 5 threshold is crossed and no sentence other than one of fulltime custody is appropriate.

51. I am going to impose an aggregate sentence and therefore it is necessary for me to state the indicative sentences which underpin that aggregate sentence.

52. In this context I have noted that you entered early pleas of guilty and therefore, in relation the indicative sentences, there will be discounts of 25%.

53. In relation to sequence one, the attempted robbery, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 4 years 6 months. Because of the plea, the indicative sentence is 3 years and 4 months.

54. In relation to sequence five, the break and enter, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 2 years 6 months. Because of the plea, the indicative sentence is 1 year and 10 months.

55. In relation to sequence three, possessing the prohibited drug, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 4 months. Because of the plea, the indicative sentence is 3 months.

56. Finally, in relation to the dishonestly obtain financial advantage offence (which has been called up), except for your plea of guilty, I would have sentenced you to a term of imprisonment of 4 months. But again because of the plea, the indicative sentence is 3 months.

57. In the result Mr Box I sentence you to an aggregate term of imprisonment of 4 years and 6 months.

58. As I indicated earlier, I make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. I have done so because I have come to the conclusion that your prospects of rehabilitation would be enhanced by a longer period on parole, notwithstanding that you have already served a period of time in custody.

59. The non-parole period that I fix is 2 years 6 months to date from 22 March 2019 and which will expire on 21 September 2021.

60. I fix a balance of two years to date from 22 September 2021 and which will expire on 21 September 2023.

61. I recommend that you be considered for the compulsory drug treatment program.

62. Insofar as the driving offence is concerned, you are disqualified for a period of six months to date from 22 September 2021 when you will be eligible for parole, not before.

63. Thank you, Mr Box, you will now go with the officers.

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Decision last updated: 06 February 2020