R v Chidgey-Politis; R v Dalby; R v Reddy; R v Eldridge
[2012] NSWDC 231
•01 November 2012
District Court
New South Wales
Medium Neutral Citation: R v Chidgey-Politis; R v Dalby; R v Reddy; R v Eldridge [2012] NSWDC 231 Hearing dates: 1 November 2012. Decision date: 01 November 2012 Before: Berman SC DCJ Decision: Sentenced to imprisonment - see paragraphs [55] [56] [57] [58] [59] [60]
Catchwords: CRIMINAL Law - Sentence - Blowing up automatic teller machines - Break enter and steal in company - Supply prohibited drugs - Category: Sentence Parties: The Crown
Paul William Chdigey-Politis
Sean Aaron Dalby
Nathan Keith Reddy
Jason John EldridgeRepresentation: Mr T Baily - Crown
Mr P Winch - Offender Chidgey-Politis
Mr L Brasch - Offender Dalby
Mr S Grant - Offender Reddy
Mr B P Jones - Offender Eldridge
Director or Public Prosecutions
File Number(s): 2009/193635 2009/216638 2009/74516 2009/052623 2009/052624
SENTENCE
HIS HONOUR: Appearing today for sentence are four offenders who are each to be sentenced for offences committed as part of a fairly successful operation to break into automatic teller machines and steal money out of them. These were not any subtle offences either. Not for these offenders was there a clever manipulation of locks, a surgical use of equipment or other minor actions. To the contrary, the offenders were engaged in a scheme to blow apart the ATMs. They did this with spectacular success, causing damage not only to the ATM, but also to surrounding premises and of course, as the offenders apparently now acknowledge, creating significant risk to members of the public.
I will not, in these remarks on sentence, detail the method used by the offenders to blow the ATMs apart. It is, to my mind, remarkably simple and requires no special skill or equipment. For obvious reasons, therefore, it would be better that knowledge as to how these offences were committed was limited as much as possible.
The four offenders for sentence today all performed different aspects of different offences and they all have different subjective features. As well as these four offenders, I should also make reference to an offender by the name of King who was sentenced for an offence common to these four offenders by Judge Williams some time ago. Of course, no offender should have a justifiable sense of grievance when he compares the sentence I am about to impose upon him with the sentence imposed upon any of his cooffenders. That said, there are many aspects of the material before me which indicate a need for significant disparity in the ultimate result.
Perhaps that is best illustrated by looking first at the accused, Nathan Reddy. He is to be sentenced for but one offence, and that was an offence of a conspiracy, specifically to break, enter and steal in company. That is a common law offence with no specific maximum penalty, but had the offence been committed there would have been a maximum penalty of twenty years' imprisonment. There would also have been a standard non-parole period of five years, but that of course is to be ignored when sentencing Mr Reddy.
I might, before getting into specific details about Mr Reddy's case, refer to a general matter which affects many of the offences before me today. Firstly, the circumstances that the offenders were in company, whilst providing a specific form of statutory aggravation of the offending, does not really add to the criminality very much. The usual reason that an in company offence is more serious than an offence committed alone is the effect that the former has on the victims of the offence. Thus, they are confronted by more than one person and risk injury from more than one person. Here, the offenders, for obvious reasons, took steps to ensure that there was no-one around when they committed their offences.
Also, I note that the offence of break and enter with intent to commit an indictable offence covers a great many indictable offences, many, if not most, of which are more serious than the offence of larceny. These matters are to be borne in mind when assessing the objective gravity of the offending and when comparing the sentences I will ultimately impose with the maximum penalties for that offence and also, where relevant, for the standard non-parole period.
Since I have mentioned the circumstance that many offences before me do have a standard non-parole period, I should say at this stage that, I have taken that into account, along with the maximum penalties, in determining the appropriate sentences. My reasons for not imposing the standard non-parole period in any matter before me are to be found in these remarks on sentence.
I was dealing with Mr Reddy's matter. As I said, he pleaded guilty to an offence of conspiring to break, enter and steal in company. That related to an ATM. The plan was for Mr Reddy to assist others to blow up the ATM at Umina Beach so that they could steal money from it. Police had by now set up a task force to investigate offences of this kind, and so what happened at Umina Beach in May 2009 was the subject of a great deal of surveillance. Part of that physical surveillance may well have been noticed by the offenders because, despite undertaking a great deal of preparation, including the purchase of various bits of equipment from a hardware store, travelling to Umina and parking various vehicles in locations to assist in the commission of the offence, the offenders ultimately called off the offence when they noticed, probably, that they were being observed.
In assessing Mr Reddy's criminality, it is to be noted that he did not give up because of any attack of remorse or anything of that kind. Instead, it was the fear of being caught that led to the offenders not proceeding with the present offence.
That is the only matter for which Mr Reddy is to be sentenced. In some respects his case is similar to that of Mr King who was sentenced for the same offence many years ago now. Mr King received a suspended sentence of two years imprisonment having spent some time in custody awaiting sentence. Mr Reddy, on the other hand, has been in custody now for three years, two months and twenty-four days, after having been arrested on 13 August 2009. That is an astounding period to be in custody awaiting sentence. The reasons for it apparently relate to the size of the investigation and the size of the brief that had to be prepared. It is, however, disturbing that in 2012 a man facing trial and then sentence in the District Court should spend so long in custody before his matter can be dealt with.
This is Mr Reddy's first time in custody too. He has some matters on his criminal history but as I have said he has not previously gone to prison. He has work available for him upon release from custody. The circumstance that he has now spent some considerable time in prison awaiting sentence means that there has been no challenge to the submission made on his behalf that he should be released immediately. Indeed once that submission was made and the Crown indicated that they had no contest with it, I granted Mr Reddy bail. He has thus been free for the last three hours, rather than in custody.
I will return to the appropriate sentence to impose upon Mr Reddy at the end of these remarks.
I turn now to Mr Chidgey-Politis. He was only twenty years of age when he started his involvement in these offences. Despite being young he appears to have been deeply involved with what this group of offenders did. He told those who interviewed him for the purpose of preparing reports to assist me that his role was that of a lookout, after having been introduced to the scheme by one of his co-offenders, a person to whom he looked up to.
He is to be sentenced for four offences of break, enter and steal in company, all relating to the destruction of an ATM by means adopted by this criminal gang.
The first of those occurred on 2 February 2009. Although only about $15,000 was taken, because the explosion was so large the total loss occasioned by that offence was $176,000. The next matter concerns an offence committed on the 4 February 2009. This time the offenders were more successful, obtaining more than a quarter of a million dollars in cash from the ATM. Then on 11 February there was another offence. Once more a small amount only of cash was taken, $3,600 on this occasion, but the loss incurred by the bank was more than $400,000. Then there was an offence on 23 April 2009 where $75,000 was stolen but more than $300,000 loss was caused. When I sentence him for the second of those matters, that is the offence on 4 February 2009, he asks that I take into account a large number of other offences. They all relate to criminality engaged in by the offender at about this same period as part of this criminal enterprise. There were offences such as that on 15 January 2009 where the offence was not completed and the damage to the ATM was quite small or relatively small and there are offences where the ATM was blown up but because the canister where the cash was kept was not breached, no money was stolen. Then there are charges relating to the damage caused to premises and surrounding shops when the offences on the indictment were successfully completed.
As far as Mr Chidgey-Politis is concerned, the total of the money taken in his offending was more than $400,000 and the total damage caused was more than $800,000. These figures alone are enough to indicate the seriousness of his misconduct.
As I said earlier, Mr Chidgey-Politis was quite young when he commenced this series of offences. He had no prior convictions, yet it is to be noted that, whilst these are his first offences, they are very serious offences indeed.
Not, in fact almost all offenders, who appear for sentence in this Court have problems with drugs. Three out of the four offenders for sentence today fall into that category, but not Mr Chidgey-Politis. It is not to say that drug use has not harmed him, it clearly has, but it was the drug use of his parents, who were addicted to heroin as the offender grew up. Perhaps because of the harm that he has seen, caused by drug addiction, he, himself, has never used drugs, but his parents' addiction led to a great deal of instability in his early life.
He went to live with his grandparents when his parents could not look after him appropriately, and he saw his mother not very often for some time. He now has a good relationship with his mother, who appears to have overcome many of the problems she faced.
He was in custody for a while, but was granted bail some time ago. Since that time, he has been a hard-worker and industrious. He has changed his attitude, too. One of the reasons he got involved in these offences was so that he could make quick money. At the time of the offending he was struggling financially, and when someone he admired made an offer to him which involved him committing these crimes for significant financial return, he took up that offer, a decision he now regrets, describing what he did as "silly".
Since his release, he has been doing his best to act in a way which appears to be more consistent with his underlying character. He gained qualifications as a diesel mechanic early in his life and has been working in various occupations since then. A number of references were tendered to me. They all speak highly of the offender's work ethic and his remorse. Mr Chidgey-Politis has been able to demonstrate, rather than just promise, that he is capable of leading a law-abiding lifestyle. That is a very significant matter in assessing the appropriate sentence to impose upon him. The fact that he is able, as he has demonstrated, to live a life that does not involve the commission of offences and does involve worthwhile endeavours means that there is little need for a sentence to be imposed upon the offender which would contain a substantial component of personal deterrence. Of course, the other purposes of sentencing remain important.
Whilst on bail, the offender has been subject to fairly strict conditions, reporting daily, and, until fairly recently, the subject of a nighttime curfew. The psychological report tendered to me today indicates the offender has significant problems with depression.
Despite everything I have said, Mr Winch, who appears for the offender, concedes that the offender has to be returned to custody today. Whilst he has been working he has made arrangements with his employer, on the understanding that he will not be able to work for them tomorrow or for some period of time to come.
I will speak now about the offender's pleas of guilty. They were entered late, at around the time the trial was due to commence. This circumstance led to a submission from Mr Winch as to the appropriate level of a discount which should be allowed for the pleas of guilty. Other lawyers appearing for the other offenders adopted what Mr Winch had said, sometimes with elaboration, so what I am about to say applies to all offenders.
It is apparent that the offenders made an offer to plead guilty to the offences to which they have pleaded guilty much earlier than the time at which the pleas of guilty were actually entered. It was said that this entitled the offenders to a discount greater than ten per cent which would ordinarily be the level allowed for a late plea of guilty. It may not have been wise, as a matter of tactics, to actually enter the pleas of guilty in circumstances where the offenders were denying their guilt in other matters, but it remains the case that by failing to plead guilty early, a great deal of preparation was required. It was certainly not the case that because of the earlier offer to plead guilty the Crown did not need to prepare its case in relation to those offences.
It has to be recognised that the discount for pleading guilty is a discount based on the utilitarian benefit that those pleas bring. Although there was a great deal of advantage to the pleas when they were entered, as that avoided a lengthy and complex trial, it remains the case that the pleas of guilty had a limited utilitarian benefit because of the stage at which they were entered. At one stage a submission was put, not by Mr Winch, that a discount for a plea of guilty of twelve and a half per cent was more appropriate. I do not believe that sentencing has reached the stage where it is so mathematically precise. Even when a discount of ten per cent is allowed it does not often lead to sentences involving years, months and days. Therefore for those reasons the discount on sentence I will allow for the utilitarian benefit of the pleas of guilty is approximately ten per cent.
I mentioned the issue of parity earlier. There are many matters working in Mr Chidgey-Politis' favour as regards his co-offenders. His youth, his lack of any prior convictions, his demonstrated rehabilitation, and the role he played, all mean that he will receive a sentence which is significantly lower than that of his co-offenders.
I turn now to Sean Dalby. Mr Dalby is to be sentenced for four offences of break, enter and steal in company relating to various ATM machines. There was one at Umina on 20 December 2008 where a significant amount of money again about a quarter of a million dollars was taken, with some being left behind and the total loss being caused around $300,000. Then there is the offence committed at the National Bank ATM in Neutral Bay on 4 February 2009 which I have already referred to in dealing with Mr Chidgey-Politis. A similar thing can be said about the offence at St Ives on 11 February 2009 and Umina Beach on 20 May 2009 where the offenders, as I said earlier, abandoned their plan apparently because they observed police surveillance in the vicinity.
Mr Dalby asks that I take into account a number of other matters when I sentence him for the Neutral Bay ATM matter. They predominantly relate to offences committed in the course of the offences on the indictment. One involves the theft of a motor vehicle on 23 August 2008. Then there are other offences where ATMs were damaged but no money was taken. Other vehicles were stolen and there was another offence unrelated to these matters of concealing a serious indictable offence when the offender became aware of a plan by another person to steal a boat which had been advertised for sale.
Mr Dalby has a fairly lengthy criminal history and has spent some time in custody in the past. He has been on parole on occasions and at times his parole has been revoked. Mr Dalby has a drug history which became quite significant after his father's sudden death. He was not living with his father at the time but it appears to have affected him, not surprisingly, quite significantly.
Mr Dalby was living in his early life with his mother and his step-father, his parents having separated when he was quite young. At first he had a positive relationship with his step-father but then at the age of ten he discovered that his step-father had been sexually assaulting his sister. Not surprisingly his relationship with his step-father changed but so did his relationship with his mother because she remained living with his step-father, the man who had been perpetrating offences on his sister.
At fourteen the offender went to live with his biological father, but after a very short period of time Mr Dalby went to live with his elder brother. This was not a terribly good idea. Mr Dalby was left with little supervision, boundaries or guidance and was living with his brother and partner who were dependent on heroin. Mr Dalby took on the role of caring for their children and told a psychologist who prepared a report for the Court that he engaged in crime in an effort to improve the family's financial standing.
He was thus living in an environment where he was exposed to drug abuse and financial hardship during much of his formative years. It is perhaps not terribly surprising therefore that he, himself, became involved in drug use, and the crimes that were associated with it. And things only got worse when his father died suddenly when Mr Dalby was twenty. It was that that led to a deterioration in Mr Dalby's functioning and to his involvement in hard drug use.
Mr Dalby committed these offences in circumstances where he was short of money. He was short of money for three basic reasons. One is that he was spending a lot of his money on drugs and they were expensive. Secondly, he was gambling, and not surprisingly, he lost. The third reason is a matter of some concern to Mr Dalby. He has a child and there have been issues regarding whether his son will live with him or his ex-partner. Those issues have been unpleasant and involved the Family Court of Australia. At one stage Mr Dalby had his son living with him, but of course since going into custody that has become impossible. All of this involved a great expense with significant legal costs being incurred by Mr Dalby. That was another financial incentive for Mr Dalby to become involved in the current offences.
He is quite upset at the situation that he now sees his son very irregularly. His son and his ex-partner have moved to Queensland and so it is very difficult to come to New South Wales to visit him in custody.
Mr Dalby has, as I have mentioned, a history of drug use. The report that I mentioned earlier suggests that Mr Dalby would like time to take the compulsory Drug Treatment Correctional Centre Program at Parklea Gaol. There are some constraints as to whether he can be referred to that program. I want to emphasis that it would be quite wrong for me to fashion a sentence designed to ensure that he can be referred. What I will do is choose the appropriate overall sentence and then, if he is suitable, make the necessary order.
Mr Dalby is also remorseful. He pleaded guilty at a late stage and committed offences where no people were the immediate victims of those crimes. Mr Dalby has made substantial efforts to improve his ability to read. He has taught himself to read newspapers and magazines and plans to better himself upon his release from custody.
He has spent some time awaiting sentence in conditions of custody which are quite harsh. He was locked in a small cell for twenty-three hours and forty minutes each day. Fortunately that was the case for only about four and a half months of his pre-sentence custody rather than the entirety of it, but for that period of time he did his time harder than in the general prison population, a matter that I have taken into account.
The total loss related to his offending was $2,100,000. Mr Brasch points out that that includes loss of profits and if one was to remove that figure from the $2.1 million dollars we are left with something a little less, $1.6 million dollars. I have got a couple of things to say about that.
The first is that the difference is not significant. But more fundamentally, why would I exclude in assessing the harm that an offence has caused, harm that flows from a loss of profits? One of the most important matters in determining the objective gravity of an offence is the harm that it causes. If the harm includes a loss of profits then that is an appropriate matter to take into account.
I now come to Jason Eldridge. He too is to be dealt with for offences involving ATMs, one of which is the conspiracy at Umina Beach, but he also has an offence of supplying a prohibited drug. That related to 59.0 grams of methylamphetamine that the offender supplied as a means of funding his own drug habit once it became impossible to commit further offences involving blowing up ATMs.
The offender has pleaded guilty to the ATM offence in Umina on 20 December 2008, an offence I have already described when dealing with Mr Dalby. Then there is the Neutral Bay offence on 4 February 2009, another matter that I have already described. But the third one is an offence which I have not yet mentioned. On 23 April 2009 the offender was involved in the destruction of an ATM at North Sydney. About $75,000 was taken. There was a total loss incurred of more than $300,000. The final ATM related matter Mr Eldridge must be sentenced for concerns the Umina Beach conspiracy which I have mentioned on a couple of occasions before.
When I sentence him for the Neutral Bay ATM matter he asked that I take into account a number of matters on a Form 1 relating to the theft of motor vehicles, and the damage by explosion of ATMs where money was not taken because of various circumstances. The total loss incurred by Mr Eldridge's offences was some $2 million.
Mr Eldridge has spent an enormous proportion of the last twenty years in gaol. He gave evidence, and explained his custodial history which had a consistent pattern. The offender would go to gaol and commit offences soon after his release which saw him going back into gaol. These offences started when he was a fairly young man. He grew up in Minto and got involved with a group of young boys who spent a great deal of their time smoking cannabis, and in order to get money to buy that drug they would commit relatively minor offences such as shoplifting and stealing. Matters deteriorated when he started mixing with older people who committed more serious offending. He then also started using harder drugs, and so the pattern commenced of going to gaol, getting out and going back in fairly soon afterwards.
For a while he was continuing to use drugs in prison. He gave evidence that drugs are freely available in prisons, both in New South Wales and South Australia where he spent some time. But as he grew up there were periods where he was abstinent. At one stage he was at Odyssey House and did not use drugs for about four months, and at other times he has taken advantage of the isolation of prison to give up drugs. It has been repeatedly the case that if he gets out of prison without, at that time, using drugs he relapses in various circumstances, some of them involving a football club he plays for.
It was after one of those relapses that he committed these offences. He was consuming significant amounts of drugs, costing him enormous amounts of money. On top of that he was gambling at the casino as well and losing money there. He says that he was losing money at the casino because he was not really in a fit state to be gambling. It goes without saying that he would have been losing money at the casino even if he had been in a fit state to be gambling.
He, too, has taken advantage of the lengthy period during which he has been on remand to, once again, spend a period where he is not using drugs. Now that he is thinking clearer, now that his mind is not affected by drugs, he recognises that they have destroyed his life. He is thirtynine years of age and I understand that it is quite a sad thing for a man to reach that age having spent most of his adult life in prison.
He has at times, in the community, worked well. Indeed, he is quite proud of the circumstances that, during one of his periods of liberty, he was able to obtain a Certificate IV in Fitness Instruction, commence a job and then start up his own business with a number of clients. He was proud of what he was doing then. His business was going well and it appeared at this stage that he had turned the corner but, as is clear, he made what he now says is the foolish decision to accept drugs that were offered to him, which led to his using drugs regularly, which in turn led to his business suffering, a loss of income, a loss of moral sense and the commission of offences.
He wants now to plan for his release from custody. He knows that he can, upon his release, become a fitness trainer again, and he knows that he has the ability to achieve success in that regard.
Along with Mr Dalby, it is the case that Mr Eldridge's drug use commenced at a very young age. Adults know the dangers of commencing drug use, the likelihood that addiction will result, and the likelihood that the user will suffer. For that reason, those who commit offences to support a drug habit, where their involvement in drugs has commenced as an adult, are not usually entitled to rely on drug addiction as a mitigating circumstances. A very basic idea is at the heart of that principle, the idea of personal choice. If a person does choose to use drugs knowing the likely consequences, they can hardly be heard to complain when not too much regard is had to that drug addiction. But that is not the case with those like Mr Eldridge and Mr Dalby who commence using drugs when they are, in effect, children.
Another relevance that their drug use has to the sentence that I will shortly impose is this. Their prospects of rehabilitation from drug use are intricately intertwined with their prospects for rehabilitation from further offending. If they can put their drug use behind them, it is almost inevitable that they will put their criminal ways behind them. Those matters suggest the clear finding of special circumstances in their favour; a finding I will also make in Mr Chidgey-Politis's favour, for different reasons, namely, his youth and his sentence being his first time in custody.
Another matter concerning Mr Eldridge is this. He is currently classified E1. That is because of an offence where he escaped from police as long ago as 1994. He is held in conditions of custody which are dramatically different from the rest of the prison population as regards exposure to various forms of in custody rehabilitation, particularly things such as work release and the like. It is simply unknown whether Mr Eldridge will continue to be classified E1. He has made application to be re-classified but whether he is successful or not is at this stage simply unknown. There is a risk that he will not be successful. There is a risk, therefore, that efforts which could be made to rehabilitate Mr Eldridge will not be made. There is a risk, to be precise, that he will not be eligible for things such as work release that other prisoners are eligible for. It follows that there is a greater risk that Mr Eldridge will be simply released at the end of his non-parole period, or some time in his period of eligibility for parole, without all that can be done to rehabilitate him being done. For those reasons also I will make a finding of special circumstances in Mr Eldridge's favour.
I should mention as far as all offenders are concerned one impact of the delay and that is that they have been left in a state of suspense for many years. That is particularly acute in the case of Mr Chidgey-Politis who was released on bail as long ago as 10 September 2010. He spent more than two years free in the community knowing that this day must eventually come, the day when he will, as Mr Winch concedes, have to go back to gaol. That is a significant matter which has had a great impact on the sentence that I will impose upon Mr Chidgey-Politis but it also affects to a lesser extent the sentences that I am about to announce on the remaining offenders.
Would you stand up please Mr Reddy.
Mr Reddy you know the result of the sentence that I am about to announce on you but specifically I sentence you to a fix term of imprisonment of three years, two months and twenty-four days and it expires today. It is a fixed term of imprisonment because of the length of time you have been awaiting sentence, so you are entitled to be released immediately Mr Reddy. Have a seat would you please.
Mr Chidgey-Politis would you mind standing up please.
Count 1, I sentence you to a non-parole period of one year with a head sentence of two years to date from 2 November 2011. That takes account of the time you spent in custody before you were granted bail.
For count 3, I sentence you to a non-parole period of one year with a head sentence of two years, to date from 2 May 2012.
Count 4, I sentence you to a non-parole period of one year with a head sentence of two years to date from 2 November 2012.
For count 2, taking into account the matters on the Form 1, I sentence you to a non-parole period of one year with a head sentence of three and a half years, to date from 2 May 2013.
Your non-parole period thus expires on 1 May 2014 on which day you are eligible to be released to parole.
Your effective sentence consists of a non-parole of two and a half years to date from 2 November 2011 with a head sentence of five years.
Mr Chidgey-Politis let me repeat for you, you will be eligible to be released to parole on 1 May 2014.
Mr Dalby would you stand up please.
Count 4, I impose a fixed term of imprisonment of eighteen months to date from 13 August 2009. That is a fixed term because of the other sentences I will now announce.
On count 1 there is a non-parole period of two years with a head sentence of four years to date from 13 August 2010.
On count 3, a non-parole period of two years with a head sentence of four years to date from 13 August 2011.
On count 2, a non-parole period of three years with a head sentence of six years and that takes into account the matter of the Form 1. That is to date from 14 August 2012.
Your non-parole period expires on 12 August 2015 and your effective sentence is a non-parole period of six years with a head sentence of nine years. Mr Dalby the date you want to know of course is, as I have said, you will be eligible to be released to parole on 12 August 2015.
I refer Mr Dalby for assessment as to his suitability to enter the Compulsory Drug Treatment Program at Parklea Gaol.
Mr Eldridge please.
On count 5 I impose a fixed term of imprisonment of two years to date from 13 August 2009.
On count 4, a fixed term of imprisonment of eighteen months to date from 13 February 2010. They are fixed terms because of the sentences I will now announce.
On count 1, a non-parole period of two years with a head sentence of four years to date from 13 February 2011.
Count 3, a non-parole period of two years with a head sentence of four years, to date from 13 February 2012.
Count 2, a non-parole period of three years with a head sentence of six years to date from 13 February 2013.
Your non-parole period expires on 12 February 2016. Your effective sentence is a non-parole period of six and a half years with a head sentence of nine and a half years and I repeat, you are eligible to be released to parole on 12 February 2016. Have a seat sir.
In each case I will order that the s 166 matters are to be dismissed, and that the 10 supply charges have now been replaced by the one charge by way of on an ex-officio indictment.
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Decision last updated: 21 March 2013
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