R v Connell

[2019] NSWDC 386

District Court

New South Wales

Medium Neutral Citation:	R v Connell [2019] NSWDC 386
Hearing dates:	19 June 2019
Date of orders:	19 June 2019
Decision date:	19 June 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	A term of imprisonment of six years, six months, with a non-parole period of three years, three months: at [25].
Catchwords:	SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Probation and parole — Offence committed whilst on parole SENTENCING — Subjective considerations on sentence — Special circumstances SENTENCING — Relevant factors on sentence — Form 1 offences— Purposes of sentencing — Multiple offences — Accumulation, concurrency and totality — Crushing sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Pearce v The Queen (1998) 194 CLR 610 R v Eldridge and Ors [2012] NSWDC 231 R v Ponfield (1999) 48 NSWLR 327 R v XX (2009) 195 A Crim R 38
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown)   Craig Connell (Offender)
Representation:	Mr Woods (Crown)   Mr Connell, self-represented (Offender)
File Number(s):	2017/140453

Judgment

1. Craig Connell, who was born in 1967, and is nearly 52 years of age, appears for sentence today having pleaded guilty to five counts of breaking, entering and stealing under s 112 of the Crimes Act 1900, which each carry a maximum penalty of fourteen years imprisonment with no standard non-parole period.

2. I have to take into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, which include punishment, denunciation, rehabilitation and recognising the harm done to the victims of the crime and the community.

3. I must not impose a sentence of imprisonment unless there is no other alternative, but Mr Connell who appears unrepresented today, concedes that it is necessary to impose a term of imprisonment so it is unnecessary for me to consider any alternatives.

4. There are two matters to be dealt with on a Form 1 in attached to count three. They will be dealt with in the way suggested by the Chief Justice in the guideline judgment on Form 1 matters. The Form 1 matters include; count six, disposing of property stolen outside New South Wales, which carries a maximum penalty of ten years imprisonment and an ex-officio count of threatening injury or detriment to a witness, which also carries a maximum penalty of ten years imprisonment.

5. He has been in custody since his arrest on 10 May 2017, but he was serving a non-parole period for unrelated offences and another sentence. He has been in custody on this matter only since 27 March 2018. It is clear that I have discretion as to the commencement date of the term of imprisonment. During the course of submissions, I indicated to the Crown Prosecutor and to Mr Connell that I propose to commence the term on 1 November 2017 and there was no argument from either party as to that starting point.

6. Mr Connell has a very lengthy criminal record extending over some thirty-one pages and, as he acknowledged, he has spent about twenty years in custody over the course of his life including significant periods in juvenile custody starting at the age of thirteen.

7. The facts basically revolve around Mr Connell breaking into and stealing a number of ATMs as well as breaking into other business premises. The first offence, count one, which the Crown concedes attracts a twenty-five per cent discount for the utilitarian value of the pleas of guilty involve an incident on 2 August 2016 where police were called to a business in Brunswick Heads called Oh My Goodness. They found the front door open, the lock damaged and the store had been ransacked with clothing strewn all over the store. There were a number of items found on the footpath including a crowbar, a G string and some other lingerie. The DNA of the accused was found on the crowbar.

8. Count two also attracts a twenty-five per cent discount, and involves an offence at Lennox Head on 22 January 2017 when he broke into the Lennox Point Café and stole $700 from the cash register. CCTV footage appeared to capture a vehicle that was owned by the offender and telephone records show that he was in the area at the time.

9. Count three also attracts a twenty-five per cent discount, and involved another break in at the Lennox Point Café on 7 February 2017. Again, his white car was shown on CCTV just near the premises and he is seen on that footage getting out of the car and returning to it a couple of times, each time carrying items. At about 2am in the morning he is shown carrying three plastic cassettes which were the cash drawers from an ATM. He had broken into the front door and forced entry to an ATM taking $64,150 in cash. The ATM was also destroyed and was worth about $15,000.

10. Early that morning he made a number of phone calls to a witness, Leonie Hughes, and tried to entice her to stay with him in a motel in Byron Bay. He told her that he had committed the break and enter at the Lennox Point Café. He initially said that he got $40,000, but then he later told her he had made a mistake and he had got closer to $70,000.

11. He told another witness, Roseanne Davey, that he had taken ATM machines from two break and enter offences, one resulting in $70,000 and one resulting in $8,000 being stolen. No amounts of those monies have ever been in the public record nor released in media outlets.

12. Count five attracts a ten per cent discount, and involves a break, enter and steal at a bar in Mermaid Beach in Queensland. He broke into a bar and restaurant through a rear door using hand tools, possibly a jimmy bar and cut the power lead to an ATM. He sprayed oven cleaner over the floor to create a lubricating film to assist in dragging the ATM out from the restaurant. He dragged the ATM out of the restaurant, down to the car park. The CCTV footage shows him moving around the restaurant and collecting a hand trolley. From this ATM machine $4,430 in cash was stolen and fifty packs of cigarettes were also stolen from the premises. He told witnesses Leonie Hews and Alan O’Brien that he had committed this offence and he sold one of the witnesses a number of packets of cigarettes.

13. The first Form 1 matter involved New South Wales Police divers recovering the stolen ATM and trolley from the Tweed River at Tweed Heads on 5 March 2017. It was identified as the one stolen from Mermaid Beach and he told witnesses that he had sweated an amount of DNA onto the ATM machine so he decided to dump it and the trolley into the Tweed River so that no forensic evidence could be taken from the unit.

14. Count seven also attracts a twenty-five per cent discount, and involved a break, enter and steal at Swampy’s Pizza in Brunswick Heads on 3 March. The premises had been broken into through sliding doors. An ATM had been stolen. The ATM had last been serviced by its owner the day before with $12,000 deposited into the machine. The amount left in the machine by the time the offender stolen it was $11,630; the value of the ATM was $8,500, so the total value of the property lost was $20,130.

15. After stealing the ATM, he drove to Goonellabah and put the ATM in a garage. He spent a number of hours breaking into the machine using angle grinders and other high powered tools. He damaged the convertible roof of his car during this offence while he was carrying the ATM to Goonellabah. He told witnesses Leonie Hews and Alan O’Brien that he had committed the offence at Swampy’s Pizza and stole an ATM containing $12,000. He told Alan O’Brien that he had been to Brunswick Heads a number of times before the break in to case the premises, and he had told Leonie Hews that he had damaged the roof lining of his car while transporting the ATM from the scene of the crime and it stuck out about two or three feet from the top of his car.

16. He was arrested on 14 March after a short foot pursuit in Goonellabah. The damage to the roof lining was consistent with the witness’ accounts about him carrying the ATM away from Swampy’s Pizza. Police found a number of break-in tools in his garage at East Lismore including a jimmy bar, bolt cutters, sledge hammer, angle grinder, balaclava, gloves and receipts for pawned items, including jewellery.

17. The offender declined to participate in recorded interview after his arrest.

18. The second Form 1 matter, is a very serious matter of threatening a witness. It involves Alan O’Brien who had made a statement to the Police and Mr Connell knew about the statement because it was served on him as part of the brief of evidence. Mr O’Brien had indicated that Connell had made admissions to him in relation to his involvement in the break and enters at Lennox Head, Mermaid Beach and Brunswick Heads. Both O’Brien and Connell were inmates at Grafton in June 2018 and Mr Connell and another inmate approached O’Brien and the offender said, “I hear you are going Crownie at my hearing against me,” meaning that he understood that O’Brien was going to give evidence for the Crown against Connell. O’Brien denied that he was. Mr Connell said to O’Brien, “We will see when I go to court you will be fucked,” and that is the basis of the ex officio charge under s 326 of the Crimes Act 1900.

19. The evidence for Mr Connell comprises of a comprehensive life history set out in a four page letter which summarises his background as being the youngest of five children. His brother committed suicide by shotgun when Mr Connell was twelve after his brother had had a two year struggle with brain damage caused by a drunk driver. As I have said, his criminal record commenced at a very early age when he went into juvenile custody. When he was 16 years old, his older brother died of a heroin overdose after years of stealing from his family to support his habit. Mr Connell says that he always felt like a failure, unloved and unimportant and he could feel the effects of these deaths contributing to him committing crimes. He was repeatedly abused physically and sexually by youth and community workers and he absconded many times. He has commenced a compensation claim which his lawyers tell him has some merit. He says that he is a religious man and acknowledges he has had some mental health issues and is taking medication. He attended TAFE and did a Year 10 course in portfolio skills and then a Year 12 course. He has worked mostly as a labourer but he has spent significant times on a disability support pension. He fears being homeless and acknowledges that drugs have played a part in his life since he was thirty-two. He spent about ten years on methadone programs on three separate occasions and he has now been drug free for two years and three months and he takes some pride in that. He acknowledges that he has a terrible criminal record, but hopes that one day he will obtain a lawful community life and perhaps contribute to the community. He knows that he will be given a prison sentence and he asks that that sentence not be crushing so as to take away any hope. He expresses remorse and he is upset that he has once again failed in life. He has spent a significant time in maximum security in custody. He says he basically grew up believing that the system involved rehabilitation and remissions and he hopes to undergo rehabilitation programs when he is released on parole. As a non-drug user, he hopes to be able to give back something to the community. He refers in his letter the case of Jason Eldridge and our research has unearthed the decision of his Honour Judge Berman SC in R v Eldridge and Ors [2012] NSWDC 231. As the Crown Prosecutor pointed out, Mr Eldridge was involved in a number of ATM offences involving about two million dollars and his ultimate sentence was nine-and-a-half years with a six-and-a-half year non-parole period.

20. I have to consider the objective seriousness of the matters and the Crown acknowledges that the objective seriousness of the break, enter and steal offences is in the lower range given the factors to which I have referred and acknowledging there was not a great deal of planning involved in the offences so that they were not significantly aggravated by that matter. It is clear that he was on conditional liberty and his previous record is an aggravating factor.

21. In terms of mitigating factors, I have acknowledged the pleas of guilty and his expression of remorse and I think his prospects of rehabilitation are reasonable accepting his belated recognition that the time has come for him to stay off drugs and stay out of trouble and contribute something useful to society.

22. The Crown acknowledged that there is a basis for a finding of special circumstances which I will make in view of the risk of institutionalisation for this man and a clear need for an extended period of supervision and engagement in rehabilitation programs.

23. It is appropriate to impose an aggregate sentence and I have to consider questions of totality and accumulation in accordance with the principle set out in Pearce v The Queen (1998) 194 CLR 610 and R v XX (2009) 195 A Crim R 38.

24. I have had regard to the guideline judgment in R v Ponfield (1999) 48 NSWLR 327 in relation to break, enter and steal offences and I have, as I have indicated, and as requested by Mr Connell, considered the case of R v Eldridge and Ors [2012] NSWDC 231.

25. The orders that I make are as follows:

1. The offender is convicted of each offence.

2. I impose an aggregate sentence of imprisonment of 6 years, 6 months, to commence on 1 November 2017 and expiring on 30 April 2024.

3. I impose a non-parole period of 3 years, 3 months, expiring on 31 January 2021. The offender is eligible for release to parole on that date.

4. The indicative sentences are:

1. Count 1 – 2 years;

2. Count 2 – 2 years;

3. Count 3, taking into account the Form 1 offences – 3 years;

4. Count 5 – 2 years, 6 months;

5. Count 7 – 2 years.

5. I find special circumstances.

Note – These extempore remarks were revised without access to the court file.

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Decision last updated: 07 August 2019