R v Cook

[2019] NSWDC 209

District Court

New South Wales

Medium Neutral Citation:	R v Cook [2019] NSWDC 209
Hearing dates:	15 April 2019
Date of orders:	17 April 2019
Decision date:	17 April 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	See paragraph [37]
Catchwords:	SENTENCING — break and enter offences — aggregate sentence of imprisonment
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 R v Ponfield (1999) 48 NSWLR 32
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Michael Stephen Cook (Offender)
Representation:	Solicitors: C Ervin (Crown) S Robinson (Offender)
File Number(s):	2018/111126

sentence

1. The offender pleaded guilty in the Local Court and adhered to that plea before me to the following offences: that on 27 January 2018 at Strathfield he broke and entered the shop at Boddali, Symond Arcade, 11/12-14 Churchill Avenue, Strathfield and stole $120 cash, two Samsung tablets, a Gucci wallet, a men’s Oroton wallet and a key. There is a further offence that on 23 January 2018 he broke and entered the office suite situated at 5/429 High Street, Penrith and stole two mobile phones valued at $250 each and a 17 inch laptop computer valued at $2,000. There is a further offence that on 23 January 2018 he broke and entered the office of Trans-Plant Training at 12/474 High Street, Penrith and stole seven laptop computers valued at $700. There is a further offence that on 30 January 2018 he broke and entered the office suite of Mark Mulock and Co at Suite 1, 374 High Street, Penrith and while in the office stole a mobile phone in a case, a set of spare keys for the office and two keycards. There is a further offence that on 29 January 2018 the offender broke and entered the office space of Nepean Therapy Dogs – a charity – at Suite 3, 374 High Street, Penrith and stole $150 from the charity cash tin and $43.50 from the petty cash tin.

2. Each of the offences is an offence under s 112(1) of the Crimes Act and has a maximum penalty of 14 years imprisonment. There is no applicable standard non-parole period.

3. When sentencing the offender on the offence that occurred at 5/429 High Street, Penrith he asks that I take into account a number of offences on a Form 1, being offences for which he acknowledges his guilt. Those offences are of larceny, break, enter and steal (by two) and goods in custody. Given the presence of the break, enter and steal offences on the Form 1, the offences will have an impact upon the sentence I am to impose on that offence, although it must be said the facts for those offences suggest that the offences concerned were towards the bottom of the range in relation to objective seriousness. I have taken them into account in accordance with the guideline judgement in relation to Form 1 offences.

Facts of the Offending

4. I turn then to the facts, which are agreed, in relation to the Strathfield premises:

5. This offence was committed at Suite 14 on the upper level of Symond Arcade at Strathfield, which is a two-storey arcade, with retail stores on the ground floor and 14 stores and offices on the upper level. At about 6pm on 27 January 2018 the business owner of Boddali left the office at Suite 14 and locked and secured the door. At about 10pm the police received a radio message and attended the scene. When they arrived they saw that a glass panel on the front office door had been smashed and the door was ajar and there was broken glass covering the floor. The owner attended and discovered that there was missing $120 in cash, a set of keys which had been inside one of the desk drawers, a men’s Gucci wallet and a men’s Oroton wallet and two Samsung tablets, and fingerprints linked the offender to the scene. CCTV footage showed him arrive at the front door, unsuccessfully try to open the door, he walked away and then broke the glass window of the front door using his elbow, reached in and unlocked the door, rummaged around inside until he found the items that were taken.

6. In terms of the Penrith offences the facts are as follows:

7. At about 3pm on 23 January 2018 the business owner left his office at 5/429 High Street, Penrith. About 2.45pm that day the offender entered the arcade, sat at a table that was near that office. At about 3.15pm he left his table and entered Suite 5 by jimmying open the front door. Once inside he searched the office and eventually left with a black bag containing a Hewlett Packard laptop, two mobile phones and a set of keys.

8. The offence at 474 High Street, Penrith:

9. At 10.40pm on the same day, 23 January 2018, the offender gained entry to Suite 12, being the premises of Trans-Plant Training Pty Limited, by smashing the glass panel on the front door. He stole from those premises about $10 in loose coins, seven laptops, a camera and a wallet containing certain cards and qualifications.

10. There is then the facts concerning the Form 1 matters:

11. At about 11.15pm on 23 January 2018 the offender caught a taxi to Penrith Valley Inn, which is located at 1 Memorial Avenue, Penrith. He entered the reception of the Inn and jumped the unattended desk. He took a hat from behind reception, which is the larceny. He tried to jimmy open the storeroom and the safe located behind reception but was unsuccessful in doing so. He took two keys that were behind reception, which were keys for Room 1 and Room 19 at the Inn. He walked to Room 1 and used the key to gain entry by unlocking and opening the door. He took a handtowel from the room. He left the room and walked to Room 19 and he used the key to gain entry and once again he took a handtowel from the room. They are the matters on the Form 1.

12. In terms of the offences at 374 High Street, Penrith:

13. On 29 January 2018 he gained entry to the arcade and jimmied open the front door to Suite 1, Level 1, which is the premises of Mark Mulock and Co Pty Limited. He entered the suite and once inside he took a Samsung mobile phone and two credit cards and a set of keys with green tags on them.

14. At 8.54pm that night he walked to the Nepean Therapy Dogs Clinic, which is located in the same arcade on the ground floor, he jimmied open the glass sliding door to the clinic. He covered his hand with his sleeve, opened the sliding door and went inside. Once inside he has forced open the locked charity tin and took $150 from that. He has rummaged through the desks and drawers before grabbing a hospital gown and leaving the location.

15. On 30 January police attended his residence. He had previously been identified in the CCTV footage. He was found by police trying to hide inside a wardrobe in the house. There were some other items found at those premises.    On 25 January 2018 police located some property in the park behind the Jamison Hotel. The property was found in a bag. It consisted of seven laptops and a further laptop inside a black bag and a mobile phone. Police confirmed that the seven laptops belonged to Trans-Plant Training Pty Limited, which had been taken through the commission of sequence 5. The laptop in the black bag and the mobile phone was confirmed by police to be the property of the business owner at 5/429 High Street, Penrith.

Assessment of Objective Seriousness

16. I turn then to my assessment of the objective seriousness, and again I have had regard to what was said in R v Ponfield (1999) 48 NSWLR 32. It is important in considering the guideline judgment when assessing objective seriousness to only have regard to the objective features of the offence as discussed in that case. I note that none of the premises the subject of the offences were residential premises but were commercial premises.

17. In relation to the offence concerning the premises in Strathfield there was damage done to a glass panel of the office door in gaining entry. The property taken was relatively of limited value but no doubt of importance to the owner. I assess the objective seriousness as below a notional mid-range offence but not at the bottom of the range.

18. In relation to the offence at 429 High Street, Penrith there was little to no damage to the premises. The property taken was again of limited value and I assess the objective seriousness as below a notional mid-range offence but not at the bottom of the range.

19. In relation to the offence at 474 High Street, Penrith there was limited damage to the premises as access was gained by smashing a glass panel on the front door. Again the property taken was relatively modest in value, although I do note seven laptops were taken, but it appears that they were ultimately recovered. The objective seriousness is below a notional mid‑range offence but not at the very bottom of the range.

20. In relation to the two offences at 374 High Street, Penrith, both offices were entered by jimmying open the doors to them. No significant damage or disturbance to the properties were involved. The property taken was relatively limited in value, although I note one of the premises was that of a charity. The objective seriousness of the offences is below a notional mid-range offence but not at the very bottom of the range.

Assessment of Offender’s Subjective Case

21. I turn then to the offender’s subjective case. The offender is 44 years of age. He has a very substantial criminal history, which disentitles him to leniency here. His first break and enter offence occurred in 1986 when he was 11 years of age. He spent time in custody when a juvenile for similar types of offences. As an adult he has received a number of sentences of imprisonment for similar type of offending and has a criminal record both in this State and in Queensland.

22. On 18 September 2015 he was sentenced in this Court for a number of offences, including for two offences of break, enter and steal. He received an aggregate sentence of five years imprisonment with a non-parole period of three years commencing on 19 December 2014. He was released to parole on 17 December 2017 and committed all of the offences I am to sentence him for while on parole for similar type of offending. That is an aggravating factor on sentence. He returned to custody on 30 January 2018 and his parole was revoked and he is currently serving the balance of parole from that date until 28 December 2019. I will return to the relevance of that when determining the date upon which to commence this sentence.

23. There is a Sentence Assessment Report before me. According to that report, he described himself as a “habitual thief” and rationalised his behaviour on the basis of his drug use. Although the sentence assessment report records that the offender said he continued to use drugs while in gaol, he gave evidence before me that he was referring to the last time he was in custody and not his current period of custody. In that regard I note there is nothing in the custodial record that is before me to suggest he has committed any disciplinary infringements during his current period in custody.

24. The Sentence Assessment Report records that he appeared to show some insight into his offending and victim empathy. The sentence assessment report records that in the past his response to supervision by Community Corrections has been unsatisfactory and he was assessed as having a high risk of re-offending.

25. There is also a psychologist’s report dated 20 March 2019 by Ms Hopkins. That report contains further information as to the offender’s background and he confirmed the truthfulness of that report when he gave evidence. He clearly had a very difficult early life when regard is had to the content of that report. He was exposed to violence and homelessness at a young age. He received little by way of education, leaving school in Year 5. He has, as a consequence of spending most of his life in custody, little by way of employment history. He was introduced to drugs and alcohol at a very early age, receiving his first “shot” of amphetamine at eleven.

26. The psychologist noted that he has spent the majority of his life in custody and considers that living in the community is what causes him anxiety. He is clearly institutionalised. Unsurprisingly, the psychiatrist states that in terms of his eventual release into the community the offender will require firm release planning and consistent professional support in the community if his risk of re‑offending is to be reduced. His level of intelligence was assessed as being in the low average range. Clearly, as the psychologist observed, his parents failed to give him adequate care when a child. He was not given the skills as a child to enable him to live a law-abiding life. He does have the support of his sister, who is prepared to have him live with her when he is eventually released from custody. He suffers from anxiety but is currently medicated in that regard.

27. The offender gave evidence before me that he desired to turn his life around - something which for someone with the offender’s history will be a difficult thing to achieve.

28. There was an early plea of guilty and I will allow him a 25% discount of his sentence for the utilitarian value of his plea. Given his early plea of guilty, his expression of remorse in the Sentence Assessment Report and his evidence, I am satisfied that he is genuinely remorseful for his offending.

29. Given his criminal history, the fact the offences were committed while on parole for similar offending and his high risk of re-offending, his prospects for rehabilitation are guarded, bordering on poor, in my view.

30. His early life of social disadvantage results in the principles concerning the relevance of social disadvantage discussed in Bugmy v The Queen (2013) 249 CLR 571 applying here.

31. Given his institutionalisation and the fact that the sentence will be partially accumulated on the balance of parole which he is currently serving, I consider it is appropriate to make a finding of special circumstances.

32. He is currently serving a balance of parole until 28 December 2019, which he has been serving since 30 January 2018. Having regard to the principles of totality and the fact that but for the current offences he may have been granted further parole, I propose to commence the sentence from 30 January 2019.

33. I will utilise the aggregate sentence provisions. If I had not done so, there would clearly have been a need to accumulate to some degree the sentences in order to reflect the discrete criminality involved in each offence and the fact that there are a number of victims.

34. I have had regard to the objects of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. As I said in the last sentence, offences of break, enter and steal are very prevalent in our community. They cause great upset and trauma to the residents of the premises involved - in this case the business owners - and great cost to the community by way of increase in insurance premiums. Significant sentences must be imposed in order to deter this offender, who has a significant history of such offending, and others from engaging in such offences. The maximum penalty has been taken into account as a legislative guidepost.

35. I will firstly record the indicative sentences. In relation to the offence at Churchill Avenue, Strathfield, the first offence on the Crown bundle, there is an indicative sentence of two and a half years imprisonment. In relation to the offence at 5/429 High Street, Penrith, the second offence on the Crown bundle, there is an indicative sentence of three years imprisonment. In relation to the offence at 12/474 High Street, Penrith, the third offence on the Crown bundle, there is an indicative sentence of three years imprisonment. In relation to the offence at 1/374 High Street, Penrith, the fourth offence on the Crown bundle, there is an indicative sentence of two and a half years imprisonment. In relation to the offence at 3/374 High Street, Penrith, which is the fifth offence on the Crown bundle, there is an indicative sentence of two and a half years imprisonment.

36. I will not require the offender to stand.

37. The offender, Mr Cook, is convicted of all of the offences to which he has pleaded guilty. I impose an aggregate sentence of five years imprisonment, with a non-parole period of three years and four months. The sentence commences on 30 January 2019 and expires on 29 January 2024. The non‑parole period expires on 29 May 2022. The earliest date you may be released to parole is the date of the expiry of the non-parole period, which is 29 May 2022. Whether you are in fact released to parole that day is a matter for the State Parole Authority, which will no doubt take account of your behaviour in prison in determining whether you should be released then or on another date.

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Decision last updated: 29 May 2019