R v Cooper
[2019] NSWDC 968
•25 March 2019
|
New South Wales |
Case Name: | R v Cooper |
Medium Neutral Citation: | [2019] NSWDC 968 |
Hearing Date(s): | Monday 25 March 2019 |
Date of Orders: | Monday 25 March 2019 |
Decision Date: | 25 March 2019 |
Jurisdiction: | Criminal |
Before: | Tupman DCJ |
Decision: | 1. Convicted on each offence. |
Catchwords: | CRIME — Property offences — Aggravated break, enter and steal knowing people were there — Aggravated break and enter with the intention of stealing knowing that people were there — Maximum penalty 20 years — Five substantive offences, five Form 1 offences — Two sets of offences — Second set of offences committed whilst offender was on bail awaiting trial for first set of offences — Late plea of guilty for first set of offences – early plea of guilty for second set of offences — Offender used fake identification documents and dressed as a workman to gain entry into some of the victims homes — many victims were elderly and living in low-income housing — Offender claims that he committed offences because he was addicted to gambling but no evidence to support this – Offences around the middle of the range in terms of objective seriousness — Offender has a long history of committing similar offences — Offender has demonstrated limited insight into offending — Prospects of rehabilitation difficult to assess. |
Legislation Cited: | Crimes Act 1900 (NSW): ss 112(2), 113(2) |
Cases Cited: | R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327. |
Category: | Sentence |
Parties: | Regina (The Crown) |
Representation: | Solicitors: |
File Number(s): | 2017/00209166; 2016/00057150. |
JUDGMENT
The offender is before the Court for sentence following pleas of guilty entered at different times to two groups of offences. The first group, which I will refer to as the Redfern offences, now comprises two substantive offences with five offences to be taken into account as additional offences, all of which occurred between 2014 and 2016.
The history is that the offender was initially committed for trial on these matters from the Local Court in October 2016 after waiving committal proceedings. He was on bail from the Local Court. There were several adjournments in this Court from October 2016 after he had been committed for trial. The matters were set down for a trial of two to three weeks to commence on 28 August 2017. Three days into the trial, after negotiations had taken place between the Crown and legal representatives for the offender, and on 30 August 2017, the offender pleaded guilty to counts in an indictment dated that date for these Redfern offences and the matters were listed for sentence on 23 March 2018.
Unfortunately, it became clear that the offences had been charged under incorrect provisions and it was necessary to withdraw that earlier indictment and substitute an ex officio indictment dated 22 October 2018. That occurred formally before me on 22 October 2018 when the ex officio indictment containing seven counts was presented and the offender was arraigned on that indictment. He pleaded guilty to counts 1 and 7, and the Crown indicated that counts 2 to 6 inclusive would be taken into account on a Form 1 as additional offences.
The pleas to these two substantive matters were thus entered late, after the trial date, and as such the full 25% discount for the utilitarian value does not apply. However, there is a utilitarian value represented by these pleas of guilty, albeit entered late. The trial was listed for two to three weeks, and that has been avoided. Of particular significance is the fact that the complainants, many of whom are quite elderly, have been spared the necessity of coming to court to give evidence. I will discount the appropriate sentences for these offences by around 15% to take that utilitarian value into account.
In the meantime, after having been charged for these Redfern offences and whilst on bail for them, the offender committed the offences which I will refer to as the Paddington offences in June and July 2017. He was charged with those offences, three in all, and refused bail by police and subsequently in the Local Court. He ultimately pleaded guilty to these three offences in the Local Court and was committed to this Court for sentence to be dealt with at the same time as the sentences for the Redfern matters. He has been bail refused for these three matters ever since 10 July 2017. The sentences will thus be backdated to commence on that date.
The pleas of guilty in these Paddington matters were thus entered early in the Local Court, and pursuant to R v Thomson & Houlton [2000] 49 NSWLR 383, I will discount the otherwise appropriate sentence by 25% to take into account the utilitarian value represented by the timing of those pleas. Specifically, the charges are as follows:
The Redfern Offences
Substantive Offences
Count 1: This is on an ex officio indictment dated 22 October 2018, that on 4 June 2014 at Redfern he broke and entered the unit premises of Cheng Im Mak at Redfern and stole $3,000 in cash from those premises in circumstances of aggravation, namely that he knew there was a person present in the unit.
Count 7: This count is in that same indictment, being sequence 15, that on 6 February 2016 at Redfern he broke and entered the unit premises of You Zhong Liang in Redfern and stole $800 from Mr Liang in circumstances of aggravation, namely that he knew there was a person present.
Both of these are offences of aggravated break, enter and steal contrary to s 112(2) of the Crimes Act 1900 (NSW) and each thus carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 5 years where appropriate.
When sentencing him for count 1 the offender asked that I take into account five additional offences to be found in a schedule to a Form 1 signed by him and exhibited in these proceedings. As I said, they were originally counts 2 to 6 inclusive in the ex officio indictment. Counts 2, 4 and 6 are also s 112(2) offences, and counts 3 and 5 are charges contrary to s 113(2), being aggravated break and enter premises with the intention of stealing knowing that there was a person in the premises.
Form 1 Offences
Count 2 (Sequence 5) occurred at Redfern on 6 April 2015 involving the sum of $200 stolen from the victim Marcia Alderidge.
Count 4 (Sequence 12) occurred between October 2015 and February 2016 at Waterloo involving the dwelling house of Ziu Mei Zhang and the sum of $10,000 in cash.
Count 6 (Sequence 14) occurred on 3 February 2016 involving the victim Agnes Lim and the sum of $470 in cash.
These are three offences contrary to s 112(2) which if sentenced separately would also carry maximum penalties of 20 years imprisonment with standard non-parole periods of 5 years.
The remaining two Form 1 offences are contrary to s 113(2). The first is Count 3 (Sequence 11) which occurred at Redfern on 11 September 2015 and involves the same victim as for count 2 but committed five days later.
Count 5 (Sequence 13) occurred at Surry Hills on 9 December 2015 involving the victim Patricia Darge.
Offences contrary to s 113(2) if sentenced separately would attract a maximum penalty of 14 years imprisonment.
The Paddington Offences
Sequence 2: An offence aggravated break, enter and steal occurring on 5 June 2017 at Paddington involving the victim Mary McPherson and the sum of $800, is an offence also contrary to s 112(2) which also carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 5 years.
Sequence 3: This offence occurred on 5 July at Paddington and is an offence of aggravated enter dwelling house with an intent to steal knowing that there were people present, involving the occupants Linda Salaghi, Kay Piddington and Joanna Hughes. This is contrary to s 111 (2) which carries a maximum penalty of 14 years imprisonment.
Sequence 1: This is another offence of aggravated break, enter and steal occurring on 7 July 2017 at Paddington knowing that there were people inside, involving the victims Mr and Mrs Poulden and the sum of $200. This also carries a maximum penalty of 20 years imprisonment with a standard non parole period of 5 years.
The Facts for all Offences
The relevant facts for the Redfern offences are that around 11am on 4 June 2014 the offender knocked on the door of the unit occupied by Cheng Im Mak and her husband in Morehead Street, Redfern. Mrs Mak was 63 years of age at the time. The offender told her that he was there to look at the plumbing and she allowed him entry. He went into the kitchen and appeared to check the hot water heater, then entered the bathroom where he took some photos. He came back out into the hallway and told her “It’s all done” and then left. Not long after he left Mrs Mak checked her wallet which she had left on top of the water heater and noticed that the sum of $3,000 in cash had been taken. CCTV footage obtained later depicted a person with the offender’s appearance at the premises at the relevant time. That is count 1, the first substantive offence.
There then followed the five offences to be taken into account as additional offences when sentencing for this first substantive offence.
The first is count 2 in the ex officio indictment. In late 2014, early 2015 Mrs Marcia Alderidge, an 86-year-old woman, reported issues with her Housing Department unit to the Department. Various tradesmen were required to attend to complete maintenance. One of these apparently was the person who called himself ‘David’ who attended on a number of occasions. In fact this was the offender who was not a tradesman engaged by the Department of Housing. He attended her unit between three and six times, and she noticed that money was missing every time he was there.
Specifically for this count he attended around 9.15am on Monday 6 April 2015. He asked to use the bathroom and she allowed him in. He went into her bedroom and then left. She checked and found the sum of $200 was missing from a place in her bedroom where it had been stored.
Again, there was CCTV footage showing a person bearing the appearance of the offender in and around the premises at the relevant time. There had been no work order put in place for Mrs Alderidge by the Department of Housing on that date. That is the first Form 1 offence.
Around 9am on 11 September 2015, a few days later, the offender went back to Mrs Alderidge’s unit, and she let him into the premises. He told her he was testing the electricity and walked into her kitchen. He disappeared from her view into the unit and then asked to use the bathroom. She agreed but stood outside her bedroom so that he could not take any money again and he then left the unit. This is the second Form 1 offence, namely breaking and entering with the intention of stealing.
The third Form 1 offence occurred on 2 October 2015 in the unit premises of Ms Zhang who was 83 years old at the time. On that day she had come back to her residence about 8am after visiting her daughter. The offender was in the foyer and opened the door for her. He was wearing a high visibility vest. He started to talk to her but there were language difficulties. He followed her to her unit. He was wearing a working pass which he showed her, so she let him into the unit. Because she could not understand him, she called her daughter and he spoke to her son, according to the facts, and told him he would be checking the fire alarm. He turned off all the switches on the switchboard and asked Mrs Zhang to check the fire alarm and “stare at it”. She called her daughter and he left soon afterwards. Not long after that Mrs Zhang noticed that her bag had been moved and her purse had been moved. There was $10,000 in cash missing which she had been given by her daughter to pay for her husband’s funeral. She originally had two bundles of $10,000 each and one was stolen and the other remained.
Much of the offender’s interaction with Mrs Zhang was captured on CCTV and she also identified him from some of the stills. Curiously, it seems to me, given the large sum involved, this offence is to be dealt with as one of five Form 1 offences when sentencing him for exactly the same sort of offence involving only the sum of $800. How that occurred is not known to me and it is an unusual outcome in my view.
The fourth Form 1 offence occurred at the premises of Mrs Darge who was 84 at the time and had a number of health problems for which she used a walker. The offender went to her unit around 9am on 9 December 2016 and knocked on the door. He was wearing clothing that gave the appearance of his being a workman. He told Mrs Darge that he was there to check the water pressure. She turned around and walked into her apartment and he followed her. He then opened a linen closet and told her that she needed a new fuse. He then asked about the fire alarms, and she told him they had already been checked. He then walked into the bedroom and walked back out with his back towards her into the kitchen. He stood behind a pillar and apparently spoke to someone on the phone telling them that something needed to be fixed. Mrs Darge tried to get up but he told her not to. He asked where her carer was, and she said she did not have one. She then went to the bathroom, and he pretended to speak to someone on the phone. He stayed in the kitchen area while she was in the bathroom and when she returned, he said that something needed to be fixed and that he would be back in a day or two. She then spoke to her daughter-in-law who spoke to the Department of Housing who told her there was no scheduled water maintenance that day. This is one of the offences of aggravated enter with intent to steal. In fact, nothing was stolen the subject of this offence.
The fifth and last Form 1 offence occurred at the residence of Agnes Lim on 3 February 2016. Mrs Lim was 55 at the time. Around 9.30 in the morning on 3 February 2016 she came back to her unit in a high-rise block in Morehead Street, Redfern. She had about $450 in her wallet. When she went back inside, put her black handbag in her bedroom and emptied coins in from her wallet in a separate bowl, and put her wallet back in her bag.
She left the apartment about 9.45am to go to a meeting. When she came back just after 10 and got out of the lift, she saw the offender outside the lift on her floor. She asked what was happening and he said he was checking the lights. He had a device in his hand which he was clicking towards the hallway lights.
He then walked down the hallway with her, and she went into her unit. She closed the door behind her but did not lock it. She walked into the kitchen and then onto the balcony. She then walked into her bedroom and opened her wallet and noticed her cash was missing. CCTV footage shows the offender was at the unit premises and by asking that this be taken into account he admits that he committed this offence.
These are thus the five offences to be taken into account as additional offences when sentencing for count 1.
The second substantive offence in this group referred to as the Redfern offences is count 7 which occurred on 6 February 2016. Mr Liang was an 80-year-old man at the time and lived in an apartment in Morehead Street, Redfern with his wife, Ms Chen, who was 76 at the time. Neither of them speaks English. Around 8.50am Ms Chen left the apartment but Mr Liang stayed. He saw the offender coming towards him but did not understand what he was saying. The offender was wearing what was apparently workman’s clothing. He was carrying a torch which had a red laser and was pointing it at the ceiling. He walked inside Mr Liang’s unit and pointed the torch towards the ceiling and switched the lights on and off. He moved from room to room and Mr Liang followed. When he reached the main bedroom, he motioned for Mr Liang to wait in the lounge room as it might be bad for his eyes, he was talking on the phone whilst he was doing this. He was inside for about 30 minutes and then left.
Later that day at about 11am when the couple was about to leave their unit Mr Liang realised that $800 was missing from his wallet which had been in the pocket of a pair of trousers folded on a chair in the bedroom. CCTV footage shows the offender in the building at the relevant time.
He was arrested for these matters at 9.30am on 22 February 2016 when he was seen leaving Morehead Street, Redfern. He was wearing an ID badge in the name of Frank Catanzarti. He told police that his name was Frank and he was there to check water pipes. He then told police he was waiting to meet his boss Frank Catanzarti to do some work. They asked for a phone number which he could not provide, and he gave other answers which were not true. He was arrested. Police found other items in the name of Frank Catanzarti I think, and other items connected to these offences. He was interviewed, maintained that he was employed by Catanzarti and did not know anybody called Paul Cooper.
During the interview he was shown a number of CCTV still photos relevant to the offences but denied it was him, and as to one on 4 June 2014 said he was at St Vincent’s Hospital on that day. Police checked. He was not. He was there on 1 August 2014 but discharged on that day. He was shown a number of other stills and admitted that it was him.
He was charged and granted conditional bail requiring him to report to Paddington Police Station three days per week. As previously stated, he pleaded not guilty to all of these offences right up until the trial date in this Court and in fact did not plead until day 3 of that allocated trial period.
It was while he was reporting to Paddington Police Station as part of these bail conditions that he committed the other group of offences, the Paddington offences. Specifically, they are:
Offence number 1, sequence 2, at about 8.30am on 5 June 2017 he reported to Paddington Police. He was wearing, amongst other things, a hi vis vest at the time. He then walked to Underwood Street, and in particular to 51 Underwood Street which is a two-storey terrace house about 650 metres from Paddington Police Station, it was then occupied by Ms Mary McPherson aged 89 years. He rang the doorbell and when Ms McPherson answered he told her he was from the Water Board there to conduct checks regarding a problem with the mixing of sewerage and mains water pipes. This concerned her so she let him in. This concerned her so she let him in. He asked her to stay outside and keep an eye on the water meter, which she did, whilst he stayed inside for about 20 minutes. Whilst he was inside, he searched for, and stole, money inside the house. He asked permission to go upstairs and check the bathroom taps. She agreed and he came back down and told her it was all now okay to use, and he left.
Just after 10am she checked her brass container where she usually kept money on a small table beside the staircase on the ground floor and found it was empty. She also checked her handbag which had been sitting on the floor beside that small table. Her wallet was inside that handbag, but she noticed that the sum of approximately $800 had been stolen from her wallet and her debit cards and driver’s licence rearranged, although not stolen.
Offence 2, sequence 3, occurred on 5 July 2017 when again the offender reported to Paddington Police Station around 8.45am. Again, he was wearing a hi vis vest. He went to a different address in Underwood Street about 200 metres from the police station. Police saw him standing there for about ten minutes talking on his phone. He then went into the open front door of 177 Underwood Street which is a two-storey terrace. The front door is close to the street, and it is easy to see into the premises from the street. One of the residents, Ms Hughes, aged 86 at the time, was seated downstairs in the lounge room and could be seen through the open front door from Underwood Street. The other two residents were upstairs. The offender walked into the house via the open front door and started talking to Ms Hughes. One of the other residents walked downstairs and saw him and asked if he could help. The offender said he was there to check on Ms Hughes because, in his words, his wife was worried about her. The other resident asked the offender’s name, he replied that his name was Danny and that his wife, who he named as Kim, had said that she had not seen Ms Hughes out walking for a while so he thought he would drop in to see how she was. He then left the premises and went back to Underwood Street with nothing being taken. Whilst the facts do not make this clear, and do not provide precise details, it would appear that he was inside the premises for a relatively short period. This is an offence of entering with intent to steal in circumstances of aggravation.
The third offence in this Paddington group is sequence 1 which occurred two days later. Again, he reported to Paddington police on bail at about 8.40am on 7 July 2017 and he was wearing a hi vis vest. He was then seen outside 23 Paddington Street talking on his phone. He seemed to be looking at the water metre. It is a two storey terrace about 650 metres from Paddington Police Station.
Mrs Carly Poulden, then aged 65, and her husband were at home at the time. Mr Poulden was sleeping in the front room and had left his wallet downstairs. The offender knocked on the door and told Mrs Poulden that while they had been working in the street another woman had come out and said that the water had been cloudy or murky. He told her that he was checking other houses to see if they had the same problem because a main may have been cut. He asked her to check her water. She asked for ID, and he showed her something. She checked the water and said it appeared fine. He then asked to check the water meter in the front yard which he did. He asked where the hot water system was, and she told him it was out the back. She opened the front door and escorted him through the premises where he appeared to check the hot water system. He then asked to go upstairs to check the bathroom water, so she took him upstairs. He turned the tap on and asked her to stay upstairs whilst he went down to check the water. He was gone for a couple of minutes and when downstairs he stole $200 from Mr Poulden’s wallet. He went back upstairs and told Ms Poulden that everything was okay and then left. Later that morning the victim checked his wallet and found that there was $200 missing.
Three days later, on 10 July 2017, the offender again reported to Paddington police on bail and was arrested and charged with these offences committed in Paddington in 2017. He was refused bail and has been in custody bail refused ever since.
Objective Criminality
Taking into account those facts, I accept that all of the five substantive offences for sentence are objectively serious and for that matter so are most, if not all, of the Form 1 offences.
Each of the substantive Redfern offences is an offence of aggravated break, enter and steal, as are two of the Paddington offences. In each case the breaking amounts to constructive breaking involving the use of a lie or a trick to gain entry. In all cases, whether they be break, enter and steal offences or break and enter with intent to steal, the offender pretended to be a workman there to undertake various checks.
For the Redfern offences he either lied about being there from the Department of Housing or gave the residents to believe that he was there from the Department of Housing.
For the Paddington offences he pretended to be there from the Water Board to check on relatively serious issues and thus obtained entry.
There was however no actual physical breaking into any of the properties and therefore no damage to the properties.
For each of the substantive offences for sentence the amount of property taken was relatively small; $3,000 in count 1 on the ex officio indictment and $800 for count 7. For the Paddington offences $800 for the first offence and $200 for the third offence.
However, there are five additional offences to be taken into account when sentencing for count 1 on the ex officio indictment. Two of these involve relatively small amounts of money; $200 for count 2 and $470 for count 6. But one of them, as I have already said, involves the sum of $10,000 which is far from minimal. As I have also already said just how this is being taken into account as a Form 1 offence is hard to fathom, but it is.
Overall, for count 1 and the five additional offences, the total sum involved is $13,670, all in cash and involving four different victims over a period between June 2014 and February 2016.
The other two additional offences did not involve any actual property being stolen but with the intention to steal. Each of the individual Form 1 offences is relatively serious and especially so count 4 because of the sum involved. These five additional offences must be taken into account in a meaningful way when sentencing for count 1. As a matter of course they will mean that the sentence that might otherwise be appropriate for count 1 will be increased.
For count 7 the sum involved was $800; a not insubstantial amount of money, but not of particular significance. Altogether the amounts involved in the Redfern offences are $14,470. Whilst some of the individual offences may be for relatively small amounts, overall, that is not an insubstantial amount of money, particularly taking into account that the vast majority of these offences were committed in Housing Department properties and the Court takes judicial notice of the fact that those who qualify for such housing tend to be poorer and amounts of money even as low as $200 are significant for elderly people of limited means.
In all cases, including the Paddington offences, they involved mainly older people, not all elderly, but nonetheless mainly elderly people, often older women alone in their premises and all of them were committed in the home of the victims. This matter amounts to an aggravating factor.
The statutory circumstance of aggravation in all cases is that he knew there were people inside. In this case that statutory circumstance of aggravation is important. Often in offences brought pursuant to this section, or these sections, that statutory circumstance of aggravation is ancillary, and sometimes largely irrelevant, to the consideration of objective seriousness. But in this case it is an essential part of the offending. He committed these offences precisely because he knew there were people inside who he could trick into allowing him access to their home for the very purpose of stealing from them.
Because of the constructive nature of the breaking relevant for each of these offences, there is no evidence, nor even any suggestion that he ever used any force or threats, and it would appear that none of the victims at the time the offences were being committed, actually knew what was happening and there is no evidence that he was ever anything other than polite towards them. On my finding he was in fact committing these offences as what is colloquially known as a ‘conman’ and it was part of his modus operandi that the victims of his offence were persuaded or conned by him into allowing access.
It is submitted on behalf of the offender that there was no planning for these offences. I do not accept this submission. In each case the offender was dressed as a workman, sometimes wearing what must have been false ID. He was using devices that he had obviously taken with him to give the impression that he knew what he was doing, although on the face of it they appeared to have no real connection with any of the testing that he was purporting to do. There is nothing anywhere in the admissible evidence that he was at the time in fact a workman. He knew, for the Redfern offences, to be able to use the ruse of being from the Housing Department and knew that most of the people in those blocks that he targeted would have been Housing Department tenants.
It is submitted on behalf of the offender that the offences are at the lower end of the scale in terms of objective seriousness. The Crown submits that they are well above the mid-range of seriousness for offences of this type.
In my view the correct assessment lies somewhere between those two submissions. For offences of aggravated break, enter and steal, the fact that the breaking was constructive and does not involve any physical damage reduces the objective seriousness in my view. It is likely that the trauma felt by the victims was less given that they were not confronted with broken doors or windows or disrupted premises, or vandalism or any of the other issues referred to in the Ponfield guideline judgment (R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327). However, there was some planning and most of the victims were elderly or at least older and were duped.
Whilst the property was not huge, nonetheless no doubt it was important for each of them, particularly the Housing Department tenants for whom sums like $200 would be a considerable sum, let alone $800 or $3,000 or $10,000, to be used by the victim in that offence for her husband’s funeral. In my view these are offences around the midrange in terms of objective seriousness.
The Paddington offences were also committed whilst on bail for the Redfern offences which further aggravates the offending. For those for which a standard non-parole period applies it does not apply strictly to any of them in this case, not just because of the assessment of them being a little below the midrange but also because these are pleas of guilty. Nonetheless I must and do take into account the standard non-parole period as some sort of guidepost when fixing the appropriate sentences.
The Offenders Subjective Circumstances
The offender chose not to give evidence on this sentence. Largely as a result of that there is very little in the way of admissible evidence that I can take into account in determining his special circumstances. When the matter first came before me on 22 October 2018 there was a pre-sentence report written by Community Corrections and then a subsequent report in what has become the new form of sentencing assessment report. It appears to have been based entirely on an interview with the offender and access to police facts and Corrective Services records.
I accept that whilst in custody the offender has not incurred any institutional misconduct charges and is regarded as a well-behaved inmate. He was at that stage employed as a wing sweeper and I take into account that that form of employment within the prisons is generally only available to those who are regarded as well behaved and model prisoners.
For the purposes of the sentencing assessment report, the offender claimed to have been employed as a carpenter at the time of offending and to have been living with a friend in Paddington before he was arrested, where he intended to return but there was no evidence to support these assertions. The report goes on to note that he had not had any visits in custody and had not made any phone calls to friends or family. He also claimed to be isolated from this family because of relationship breakdowns and because his family lived overseas.
He told Community Corrections that he was single and had not had contact with his two adult children in over 10 years. He also told Community Corrections that his wife had died of breast cancer. Part of what he told Community Corrections, and appears in this report, seems to be at odds with some of the facts relevant for his offending, at least in relation to one of the Paddington offences, where he told the residents that he was checking on Ms Hughes because his wife had told him she had not seen her out walking and he was checking.
He also told Community Corrections that he had committed the offences because he was addicted to gambling and that he would gamble up to $400 per week which left him with no money to live on. There is no actual evidence apart from these assertions to establish that connection and because of the discrepancies between what he told Community Corrections and some of the other matters in the agreed facts which are before me for sentence, I do not accept anything that this offender has told Community Corrections in the absence of any corroborating evidence.
Community Corrections indicated that he demonstrated only limited insight into the impact of offending. Nonetheless, and for other curious reasons to which I will refer shortly, he was assessed by Community Corrections as being a medium low risk of reoffending. There was no explanation in that earlier report of how that assessment was undertaken. In particular, no reference, no real reference, was made in that earlier report to his extensive criminal history for similar offending and how he interacted with Community Corrections during previous periods of supervision, either in the community, on bonds or on parole following release.
I accept that he comes to court as a 53-year-old man who has a history of similar offending over a long period. In 1994 he was sentenced on four counts of break, enter and steal with a deferred sentence bond of two years. In 1996 he was sentenced again with a deferred sentence bond of two years for stealing from a dwelling.
In 2008 he committed offences of using a false instrument with intent to obtain an advantage giving rise to a short period of imprisonment and further s 9 bonds with supervision from what was then called Probation and Parole. Those bonds were to last for 3 years and had conditions to undertake drug and alcohol counselling. There were no conditions referring to gambling.
Also, in 2009 he was sentenced to imprisonment by this court for offences of break, enter and steal, to 3 years with 18 months non-parole period.
Again in 2012 he received a 2-year s 9 bond for break, enter and steal, an offence committed in December 2012.
That is thus a lengthy history of similar offending dating back to 1994. It is hard then to understand the reference in the first presentence report to his having previous convictions relating to offences of a similar nature commencing in 2009. That is simply not accurate and that is in circumstances where the author of the report claims to have had access to the criminal history when compiling it. He thus has an extensive history of committing similar offences and has received periods of imprisonment for them. He has been on supervised s 9 bonds for considerable periods and also on parole.
Despite this, there was no reference whatsoever to this in the first sentencing assessment report, and particularly in relation to his response to supervision or his progress, what counselling, if any, he was provided and the like. The only reference was as follows: “Mr Cooper has previous convictions relating to offences of a similar nature commencing in 2009”.
Given the actual background of previous offending it was my view when the matter came before me in October 2018 that this sentencing assessment report was defective, and it was difficult to understand how he could be considered medium low risk of reoffending. That was particularly significant given what was also provided by Community Corrections that in the light of their assessment of this risk of reoffending, if the Court made a supervision order the supervision would be suspended. As a result, I sought an updated report and specifically asked for information as to how this risk of reoffending was assessed and in particular whether when released to parole he would be supervised. I further asked for information about his response to supervision on a previous occasion.
Community Corrections ultimately provided an additional report after refusing to do so. Except for brief information that when supervised he responded well and therefore his supervision was terminated on two occasions, there was no further information provided and no information provided as to how his risk of reoffending had been assessed.
Community Corrections provided written information to the Court by way of email that when released to parole on these sentences, because of their assessment of him being medium low risk of reoffending, there were no programs likely to be available to him from Community Corrections and therefore he would not be supervised. That appears to me to be an extraordinary outcome in the circumstances of this man’s continual reoffending for offences of this type, nonetheless that is the information provided by Community Corrections to the Court.
Apart from this I know little else about him. There are extensive submissions made on his behalf about his subjective circumstances but no actual evidence upon which I can assess those submissions.
I take into account the pleas of guilty as indicating at least some contrition and remorse but also bear in mind the finding made by Community Corrections that he demonstrated little insight into his offending behaviour.
As to his prospects of rehabilitation, they are very difficult to assess. I take into account the fact that he has not committed any institutional misconduct offences whilst in custody and is regarded as a good prisoner who is clearly trusted enough to be a wing sweeper. That would normally be a positive factor towards rehabilitation, however that must be tempered by the fact that he has committed similar offences of this type, even after being on periods of supervision either on parole or bonds, and with that history there must be some guardedness about assessing his prospects of rehabilitation.
It is simply not possible to assess his prospects of rehabilitation in the circumstances and how it was Community Corrections assess him as medium low risk of supervision is impossible for me to ascertain. In my view when he is released to parole, should he be free to return to the community in New South Wales, he will require supervision. If it be the fact that he committed these offences in order to satisfy a gambling addiction, it will be necessary for him to receive counselling in relation to that. Unfortunately, all of these are unknown to me.
This Court would normally expect that sort of material from a sentencing assessment report, namely a thorough assessment of the needs of an individual. That has not been done on this occasion and regrettably it is the experience of this Court since September 2018 that it regularly is not done.
The Sentences
Doing the best I can in those circumstances, I then turn to the appropriate sentences. It seems to me that for count 1 in the ex officio indictment, absent the plea of guilty and taking into account the five Form 1 offences, an overall term of 3 years and 6 months would be appropriate. Reducing that by about 15% means reducing it by 6 months, so there will be an overall term of 3 years with a non-parole period of 2 years.
Count 7 is objectively less serious and there are no Form 1 offences attaching, so a starting point is 2 years with a reduction of about 3 months to take into account a 15% discount, giving rise to 1 year and 9 months, and in my view a 12-month non-parole period is appropriate.
If completely accumulated this would be 4 years and 9 months. Taking into account the objective criminality overall I will be imposing an aggregate sentence for these two offences of 3 and a half years with an aggregate non-parole period of 2 years and 6 months which will be backdated to 10 July 2017.
For the Paddington offences, both of the aggravated break, enter and steal offences are around the same in terms of objective seriousness in my view, the only difference is that one involved $800 and the other $200. They were both committed whilst on bail and in each case the starting point should be 2 years less 25% giving rise to 18 months with a non-parole period of 12 months. The sentences should not be completely concurrent with each other because they involve two different victims and were committed a month apart.
The other offence of entering with intent is of similar objective criminality, the difference being only that there was in fact nothing actually stolen and on this occasion there was no constructive breaking but an entering of the premises. I specifically reject the Crown’s submission that I would find in relation to this offence that the offender deliberately targeted this house because one of the residents was related to a prominent member of the community and that he would have known this family had significant wealth. That finding is simply not available on the basis of any evidence before the Court.
The facts that are before me for this offence it seems to me are just another example of this offender’s usual modus operandi. He went into the house where he could see an old person from the street but when he was confronted by her companions, he made up a story about why he was there and left. He has been charged with doing so with the intention of stealing and has pleaded to that. That seems to me to be the end of the relevant facts and it cannot be aggravated on the evidence in the way the Crown contended.
Taking into account the discount for the plea of guilty, for this offence too it seems to me the overall term should be about 18 months.
Taking into account what would be the overall term if completely accumulated, but also bearing in mind that that would not be appropriate on an assessment of total criminality for these offences, in the circumstances I will be setting an aggregate sentence for these three offences of 2 years and 6 months with an aggregate non-parole period of 12 months.
There are limited special circumstances. Largely the special circumstance here is that there is some partial accumulation of the sentences. So therefore, there are two sets of aggregate sentences. The Redfern offences giving rise to an aggregate sentence of 3 and a half years with an aggregate non-parole period of 2 and a half years and for the Paddington offence there is an aggregate sentence of 2 and a half years with an aggregate non-parole of 12 months.
If each of the aggregate sentences was completed accumulated on the other that would give rise to 6 years. In my view that would be too much. I initially made a finding that to take into account the objective criminality it should be overall 5 years with a 3-year non parole period. Whilst in my view the 3 years non-parole period is appropriate and the least that can be set taking into account the objective criminality and other matters, it has transpired that attempting to effect a partial accumulation of those two aggregate sentences is mathematically impossible and for that reason, and for that reason only, largely to give effect to total criminality, my finding has been altered about the overall period. There will in any event be a period on parole of 18 months. That is sufficient to the extent that the Court is aware of any special needs but nonetheless is sufficient tin the circumstances.
This need to amend the earlier findings is only because of some mathematical difficulties in setting the appropriate sentences but retains what in my view is the appropriate non-parole period overall of 3 years.
Formal Sentence Orders
For those reasons then, the final formal orders are as follows:
(1)Convicted on each offence.
(2)For sequences 1 and 7 in the ex officio indictment, he is sentenced to an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 of 3 years and 6 months commencing 10 July 2017 and expiring on 9 January 2021, comprising an aggregate non-parole period of 2 years and 6 months commencing 10 July 2017 and expiring 9 January 2020, with parole thereafter of 12 months commencing 10 January 2020 and expiring 9 January 2021.
(a)I have taken into account five Form 1 offences when sentencing for count 1.
(b)The indicative sentences are as I have already said. They do not change.
(3)For the Paddington offences matters committed for sentence, sequences 1, 2 and 3, he is sentenced to an aggregate sentence of 2 years and 6 months commencing 10 July 2019 and expiring 9 January 2022, with an aggregate non-parole period of 12 months commencing 10 July 2019 and expiring 9 July 2020, with parole thereafter of 18 months commencing 10 July 2020 and expiring 9 January 2022.
(a)The indicative sentences are as I already said for each offence.
That gives rise overall to 4 years and 6 months with an overall non-parole period of 3 years.
I note communication from the Crown to my chambers after the last date the matter was in court that the Crown does not seek, nor seeks to, pursue any order for compensation that might have been sought on an earlier occasion.
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