R v Cahill

[2018] NSWDC 169

District Court

New South Wales

Medium Neutral Citation:	R v Cahill [2018] NSWDC 169
Hearing dates:	20 April 2018
Date of orders:	20 April 2018
Decision date:	20 April 2018
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is sentenced to an aggregate term of imprisonment for 7 years with a non-parole period of 3½ years. The offender is referred for assessment as to his suitability to enter the Compulsory Drug Treatment Program. Matters on s166 certificate are withdrawn and dismissed.
Catchwords:	CRIMINAL LAW – Sentence – Form 1 – Attempt to commit aggravated break and enter with intent to commit serious indictable offence – Break and enter with intent to commit serious indictable offence – Larceny – On parole at time of offending – Offences committed to fund drug habit
Category:	Sentence
Parties:	The Crown Raymond John Cahill
Representation:	Counsel: S Goodwin (Offender)   Solicitors: Director of Public Prosecutions (Crown) Legal Aid Commission (Offender)
File Number(s):	2016/143172 – 2016/226162

Judgment

1. HIS HONOUR: At the age of 57 Mr Cahill who appears for sentence today is finding that this time in custody is the hardest he has ever experienced it. He gave evidence before me that currently people in gaol have no respect for their elders, they do not live by any rules and he said that he simply “can’t put up with the idiots” he meets inside.

2. Mr Cahill is well experienced in knowing what life in custody is like and in a good position to describe the change in how he sees life in gaol over the years. That is because since he went into custody for the first time in 1993 he has spent about two‑thirds of his life in gaol. Mr Cahill has obviously had some time to reflect about the way he is living his life and what his future holds. He expressed the wish more than once when giving evidence today that he did not want to die in gaol.

3. He appears for sentence today having pleaded guilty to three offences. They are, an attempt to commit an aggravated break, enter with intent to commit serious indictable offence, namely larceny, knowing there was a person present inside. That is an offence that carries a maximum penalty of 14 years imprisonment.

4. He is also to be sentenced for an offence of aggravated break and enter and commit serious indictable offence, namely larceny, knowing there was a person present inside. That carries a maximum penalty of 20 years with a standard non-parole period of five years.

5. And finally, he is to be sentenced for an offence of aggravated break and enter and commit serious indictable offence, namely, larceny, knowing there was a person inside, again with a maximum penalty of 20 years and a standard non-parole period of five years.

6. When I sentence him for the second of those matters he asks that I take into account a number of matters on a Form 1. All of his offences, including those on the Form 1 were committed in a few short days in early 2016.

7. I have taken into account both the standard non‑parole periods and the maximum penalties in determining the sentences to impose upon Mr Cahill. My reasons for not imposing a standard non-parole period appear in these remarks on sentence.

8. I mentioned that Mr Cahill pleaded guilty to the three offences for which he must be specifically sentenced. That plea did not come at the earliest opportunity. He was committed for trial to this Court, but shortly before the trial was due to commence, about two weeks in fact, he did enter these pleas. In such circumstances the sentence I impose upon him will be about 15% less than it would otherwise have been.

9. The first of Mr Cahill’s offences was committed on the evening of Thursday 5 May 2016. He went to some premises in Nelson Street, Annandale, climbed over the rear gate and went into the backyard. He opened the laundry door. This made some noise and a resident inside who was watching television heard that noise. He headed towards the source of the noise, namely the laundry. The offender and the resident saw each other. Mr Cahill said that he was looking for someone. He then tried to walk to the front of the house but the house overlooks a small cliff and cannot be accessed by the street. He then turned around and walked through the backyard and climbed over the back fence into a laneway.

10. Not that long after that the offender committed another offence, this is one which appears on the Form 1. He took a wheelie bin from some premises and approached another house. He took off his shoes and his bumbag and left them on the ground, these were later to be of assistance in identifying who committed these offences that I am describing. He climbed onto the wheelie bin and in through an open window. Once inside he took a number of jackets before opening the closed front door and leaving. At the time there were three people asleep in the house. As he left, he left the backdoor open, and one of the jackets he had taken on the front fence. As he walked along the laneway he dropped the rest of the jackets. He left behind the sneakers and bumbag that I mentioned earlier.

11. The following morning one of the residents of the house woke up and noticed the front door had been left open. She looked around and could see that clothes had been disturbed, she saw the wheelie bin outside the window, and she saw all of the stolen jackets in the laneway outside. A little while later another person from inside the house found the sneakers and bumbag. Inside they found items clearly associated with the offender, DNA analysis later confirmed that relationship.

12. After the offender had stolen all the jackets and left them behind he went to another premises in Lilyfield. There was a ute parked in the driveway. The offender picked up some work boots from the ute and put them on. He made a noise as he did so. That caused someone to turn on a light, and the offender then left.

13. We now come to the second specific offence for which I must sentence Mr Cahill. Whilst in Lilyfield he approached another house. He walked through an open gate on the side of the house and into the backyard, taking a pair of garden shears from the open garden shed. He then opened the rear door of the house and entered the dining room area. There he picked up a wallet which contained some cash, a driver’s licence and other personal cards. He took a laptop computer from the dining table. At this time someone who was sleeping in the living room woke up, and yelled out “who’s there”. Not terribly convincingly Mr Cahill yelled back “no one is here”. He quickly walked out the rear door and left the premises.

14. He was later spotted by police about 3 kilometres away. He was wearing the work boots I mentioned earlier and when the room in the boarding house where he was staying was searched incriminating items were found, namely the laptop computer.

15. We now come to 9 May. The owner of a bed and breakfast accommodation completed a post rental inspection. On leaving it was noted that all the doors and windows were closed and the house was tidy and well kept. The owner locked the front door behind her as she left. Not that long after that the offender entered those premises, he took off his socks from his feet and used them to cover his hands in order to avoid leaving fingerprints. He opened a kitchen window and climbed in. He stole a number of items from those premises, a television, power plug adaptor, a carrycase with a speaker dock, but as he was leaving one of the socks fell off. He left it behind.

16. Later on when he was arrested it was noted that he was only wearing one sock and the sock he was wearing matched the sock that had been left behind. Further confirmation that the sock was the offender’s was found from more DNA analysis.

17. The third offence for which the offender must be specifically sentenced occurred in Glebe. Shortly before midnight on Monday 9 May 2016 the resident, who lived there by herself, closed and locked all the doors to the premises. She went to sleep while watching TV. At some stage that evening Mr Cahill entered her home through the rear ground level door. He opened her walk-in wardrobe and went through all of her handbags. They were empty. He then entered her office and found the handbag that the resident was using on a daily basis. He took that and left the house a short time later. It was a Louis Vuitton handbag that was quite valuable. Inside was a crocodile skin wallet that was also valuable. The wallet contained some cash, personal cards, as well as cosmetics.

18. The offender was arrested not that long later. He was spotted by police going for a walk at 4.30am. When they began to question him they could hear coins jiggling in his pocket. They searched him, located personal cards that belonged to the woman who lived in the Glebe premises and he was arrested. Some of the material he has stolen was recovered but some was not.

19. When Mr Cahill was asked whether he wanted to be interviewed he replied “no comment” to the allegations that were put to him.

20. These offences were of course all serious, especially those offences which involved the offender being inside someone’s premises when they were also inside. For many years offences of break, enter and steal have been regarded as serious because of their prevalence. They are also serious because of the harm that they cause. People lose property, sometimes that property is valuable and sometimes it is not, sometimes the property has sentimental value which far exceeds its monetary value. Perhaps more importantly the victims of such offences often lose a sense of security at their homes having been broken into by people like Mr Cahill. It is people like Mr Cahill who are responsible for bars on windows, burglar alarms, high insurance premiums and so on. People like Mr Cahill cause substantial harm to the community and members of it.

21. These offences are clearly ones where general deterrence is of considerable importance. Mr Cahill has a lengthy record, indeed he was on parole for a similar offence at the time he committed these offences. It is a matter of serious aggravation that he abused his liberty in the way he did. His parole was revoked because of the commission of these offences, so it is important I do not double count by selecting an inappropriate date for commencement of these offences at the same time as regarding the fact that he was on parole as being a matter of serious aggravation.

22. Mr Cahill describes himself as “a loner” and says he has always been. His background is set out in a psychological report, one of two tendered by Ms Goodwin today. I have said this many times but it is worth repeating, the moral culpability of an offender has to be assessed by taking into account the opportunities and the background that they were presented with as they grew up. Mr Cahill’s parents’ separated when he was an infant, something which is relatively common, but what also occurred to him is thankfully less common. When he was about four his mother took up with a man who was abusive towards her and Mr Cahill himself. When he reached the age of 12 Mr Cahill fought back against his stepfather before demanding that he leave the family home, something he subsequently did.

23. Mr Cahill also suffered the terrible experience of having been repeatedly sexually abused by a child‑minder between the ages of six and ten, which not surprisingly has led to him reporting that he feels scarred and untrusting.

24. Mr Cahill’s mother was always helpful and supportive at least as much as she could be given that she drank excessively, worked long hours and thus often left Mr Cahill unsupervised. It was this absence of supervision that led to the offender’s abuse of drugs, something which has been with him for the rest of his life and which explains much of his offending, including the offences for which I must sentence him.

25. Mr Cahill was not living on the streets, he had a home to go to but he spent a lot of time with older boys on the streets and he progressed into illicit drug use in his early adolescence. He began associating with twin brothers who were heroin addicts. Since then he has used drugs often and repeatedly. He has tried many times to give up drugs. He was aided by the Drug Court, he has spent time in a residential rehabilitation, but he still appears for sentence today as a person who committed offences to fund his drug habit, so those rehabilitation attempts have clearly failed.

26. More positively, Mr Cahill said that he had maintained drug abstinence since his incarceration in mid‑2016 and his custodial history tends to back that statement up.

27. Mr Cahill says that he is verging on being institutionalised. It appears that Mr Cahill has few skills to enable him to easily live in the community. The psychologist says he needs intensive support to reintegrate into life outside gaol. On the other hand, he did have supports available to him. He was living in supported accommodation as a parolee with access to various forms of counselling and assistance which he did not avail himself of. He recognises that that was wrong and that he does need to seek out assistance from those who are able to help him. When he is eventually released from custody he told me that he was going to ask for help. As I said he described himself as “a loner” but said that he realises now that he has to ask for help if he wants to avoid something he clearly fears, that is, spending more and more time in custody and perhaps even dying there.

28. No one would suggest that Mr Cahill’s prospects of rehabilitation are good but his prospects of giving up his life of offending are clearly intertwined with his prospects of giving up his drug habit. He needs a great deal of assistance in dealing with the enormous challenges he will face upon his release from custody after he completes the sentence I will shortly announce. For that reason I have made a find of special circumstances in his favour. Also, supporting that finding is the fact that this sentence will be partially accumulated on the balance of parole he was serving having been breached as a result of committing these offences.

29. As break and enter offences go these were not the most serious. They involved minimal planning, Mr Cahill did not have any tools with him, he came upon the wheelie bin and used it to climb in the open window, he had to remove his socks to use as makeshift gloves to avoid leaving fingerprints and had he been planning things better of course he would not have left behind his shoes and his bumbag and one of his socks which considerably aided the police and identified who had committed all these offences.

30. I mentioned before the importance of general deterrence but personal deterrence is also important in Mr Cahill’s case. What the psychologist described is an ‘entrenched pattern of offending’, lawyers would describe as a ‘continuing attitude of disobedience to the law’. Mr Cahill is going to be given an opportunity when he is released from custody to avoid that which he most fears but he must be made aware that if he offends again in the future then Judges will continue to send him to gaol, even at the risk that he will spend the rest of his life there.

31. I will impose an aggregate sentence of imprisonment.

32. Were I not to have done so, for count 1 I would have imposed a period of imprisonment of three years. For count 2, taking into account the Form 1 matters a sentence of imprisonment of five years with a three year non-parole period, and for count 3 a sentence of imprisonment of four and a half years with a two and a half year non-parole period.

33. I impose and set an aggregate sentence of imprisonment to date from 19 March 2017, that is a sentence of imprisonment of seven years with a three and a half year non-parole period.

34. The three and a half year non-parole period will expire on 18 September 2020 on which day Mr Cahill is eligible to be released to parole.

35. I refer him for assessment as to his suitability to enter the compulsory drug treatment program.

36. There are two matters on the s 166 certificate which are to be dismissed.

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Decision last updated: 26 June 2018