R v Debortoli - [2020] NSWDC 466

District Court

New South Wales

Medium Neutral Citation: R v Debortoli [2020] NSWDC 466
Hearing dates: 8 April 2020
Date of orders: 8 April 2020
Decision date: 08 April 2020
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Sentenced to an aggregate term of imprisonment of 2 years 8 months; non-parole period 1 year 6 months imprisonment.

Catchwords:
CRIME – sentence – enter building with intent commit serious indictable offence larceny – attempted aggravated break and enter with intent to commit serious indictable offence larceny – people there – extensive criminal history – number of parole breaches – stealing of items of low value – mainly foodstuffs – drug use – institutionalised – social disadvantage - remorse – pleas of guilty – totality of criminality – COVID-19 considerations – health issues.

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Callaghan v R [2006] NSWCCA 58
DPP(Cth) v De La Rosa [2010] NSWCCA 194
Harris v R [2005] NSWCCA 204
Hemsley v R [2004] NSWCCA 228
Johnson v R [2004] HCA 15; 78 ALJR 616
Markarianv R [2005] HCA 25; 228 CLR 357
Mill v R (1988) 166 CLR 59
Palu v R [2002] NSWCCA 381
Pearce v R (1998) 194 CLR 610
Ponfield v R (1999) 48 NSWLR 327
R v Engert (1995) 84 A Crim R 67
R v Huynh [2005] NSWCCA 220
R v Israil [2002] NSWCCA 255
R vXX (2009) 195 A Crim R 38
Yardleyv Betts (1979) 1 A Crim R 329

Category: Sentence
Parties: Regina (Crown)
Adrian Debortoli (offender)
Representation: Solicitors:
Ms L Robeau (DPP)
Ms S Perera (offender)

File Number(s): 2019/00278782
Publication restriction: No

Judgment

The prisoner Adrian Debortoli appears before me today for sentence in relation to four matters, with two matters to be considered on two separate Forms 1. All the offences I am concerned with were committed by the offender on 4 September 2019. The facts suggest that they were committed over a period of approximately four hours in the early morning.
The first offence in time, as it is listed amongst the separate charges on the charge certificate is an offence of on 4 September 2019 at Waterloo breaking and entering a business known as ‘Luke’s Kitchen’ in Danks Street Waterloo and stealing items of food and refreshment as well as a newspaper. These items included eggs, a six pack of beer, some bottles of wine, some almond milk and a packet of bacon. This is an offence contrary to s 112 of the Crimes Act 1900 without having to cite the subsection, carries a maximum penalty of 14 years imprisonment and has no standard non-parole period.
The next offence for sentence, sequence 6, is an offence on the same date, of entering a building, namely Taylor’s College in Bourke Street Waterloo with intent to commit the indictable offence of larceny in that building. Attached to that offence on a Form 1 is an offence of larceny, which is sequence 7, stealing two milk crates the property of Taylor’s College at the same time.
The next offence for sentence is an attempted aggravated break and enter, with intent to commit serious indictable offence, to wit larceny. The pleading of aggravation is, knowing persons inside or within the premises. This is an offence contrary to s 113 of the Crimes Act with a maximum penalty of 14 years imprisonment.
I should have said that the previous offence at Taylor’s College for sentence carries a maximum penalty of seven years. Larceny, the matter on the Form 1, when dealt with on indictment, carries a maximum penalty of five years. I hasten to say that matter on the Form 1 standing alone, or perhaps in conjunction with the principal offence if dealt with alone, probably would have been dealt with in the Local Court.
The indictable offence that I have referred to which is sequence 8, alleges the offender did attempt to break and enter a dwelling house, the property of a private person living in an apartment or flat at Powell Street Waterloo with intent to commit the indictable offence of larceny. The circumstance of aggravation as I earlier indicated, knowing that there were persons inside the building. Attached to that offence is a matter on a Form 1, an offence of breaking and entering a dwelling house the property of a private person within a block of apartments in Hunter Street Waterloo, again, with intent to commit larceny knowing that persons were present within the building. Likewise, that offence if dealt with on indictment would carry a maximum penalty of 14 years imprisonment.
The last offence for sentence is sequence 9. That is an offence again committed on the same day of entering a dwelling house of a private individual within a block of apartments in Waterloo with intent to commit larceny with the same circumstance of aggravation knowing that there were persons inside the dwelling house. This offence contrary to s 111(2) Crimes Act 1900 has a maximum penalty of 14 years imprisonment with no standard non-parole period.
The evidentiary material I have does not include any oral evidence from the prisoner. There is a Crown bundle including a Statement of Facts and the relevant Court Attendance Notices, criminal history, the custodial history of the prisoner over a number of years and reports from the Parole Authority, including a breach of parole report.
All the offences I am concerned with were committed whilst the offender was subject to parole. That parole was revoked in September 2019. The offender was arrested on 6 September 2019, but the revocation of parole left the offender with a balance of parole to expire in mid to late May 2020. As I have indicated I propose to commence the sentence I impose from 6 January 2020. I do this in accordance with the principles discussed by Simpson J in the decision from 2005 or 2006 of Callaghan v R, a decision of the Court of Criminal Appeal where her Honour discussed with the approval of a least one of her colleagues, the relevant principles in considering the commencement of a sentence where an offender is required to serve at the time of sentencing a balance of parole.
I bear in mind that as the Crown has pointed out in its very helpful written submissions, that breach of conditional liberty such as a breach of parole is a significant aggravating factor under s 21A(2) Crimes (Sentencing Procedure) Act 1999, to which I will herein after refer to as “the Act”. It is an aggravating factor that relates to all offences in relation to this offender. I bear in mind, in the same context that the criminal history of the prisoner, which is extensive, does not entitle the prisoner to any particular leniency.
The prisoner’s criminal history reflects that fact. In his custodial record, the prisoner has quite a number of breaches of parole recorded against him. He has breaches of parole in 2017, 2013, 2007, 2002 and in 1992. There may be others that I have missed, but there are at least five breaches of parole and it should be fairly said that the prisoner’s performance on parole has not been particularly impressive and might be seen as somewhat unfavourable matter in the context of determining the fixing of a non-parole period and the decision that I have reached that there is a finding of special circumstances available to me pursuant to s 44 of the Act.
It is in this context that I pick up on a specific oral submission of learned counsel for the prisoner. She went through his custodial record to demonstrate the fact that the prisoner has, as his criminal history reveals, many periods of custody since 1989. A total period of over 30 year is a significant period, bearing in mind the prisoner was born in April 1969 and will turn 51 this month.
She points out however that the last time that the prisoner was released to parole in late 2018 he was, except for a period of time in custody in relation to summary charges which were apparently dismissed at the Local Court, subject to parole supervision for the longest period throughout his adult life. It must be fairly said, that observing the conditions of parole, particularly the condition to be of good behaviour, is no particular great achievement. One of the reasons Judges fix non-parole periods and the Parole Authority or Parole Board release people to parole is in the expectation that they will behave themselves and be of good behaviour whatever their life difficulties. Because the truth of the matter is being released on parole is permitting of the prisoner a benefit that otherwise would not be available to the prisoner if the full sentence imposed by a Court was imposed. But I have taken on board what was put by learned counsel. I am prepared to accept in the context of the history provided by the prisoner which is primarily untested, but to some extent supported by the criminal history, the fact that the prisoner had for the first time in a long time managed to set up for himself a settled domestic existence in his own premises. He had brought those premises up to a standard that could sustain him, only to have those arrangements damaged by a false or unproven allegation against him which led to him leaving the premises. On his release from custody when the matters were dismissed in the Local Court, he discovered that he was not able to return to the premises because of an existing Apprehended Domestic Violence Order. So to the extent that he was able to maintain a lawful existence for that period of time in comparison to previous periods of time he has been in custody, shows at least some prospect of rehabilitation, but one must be circumspect about that matter as I will discuss in due course.
With regard to the facts of the cases, the Agreed Statement of Facts need not be reiterated in detail. In the order in which events occurred by reference to the Agreed Facts, the prisoner broke into Luke’s Kitchen, which I take to be some type of café or restaurant in the Waterloo area. By reference to some material in the brief of photographs of the prisoner taken by CCTV, he was wearing very distinctive clothing that was easily identified. He was wearing a Green Bay Packers NFL football jumper with the name Rodgers 12, Aaron Rodgers being the quarterback for the Green Bay Packers for the last 12 or 13 years. He committed these offences on 4 September. The police arrested him two days later and the facts show CCTV image clearly displaying him and his distinctive jumper on seven separate occasions at different locations in the vicinity of the crimes.
At Luke’s Kitchen he stole a quantity of items of food, which might to some extent reflect his personal circumstances. He was not only identified by CCTV footage, but in some of the offences by DNA examination which revealed a match. However, that offence committed as it was and completed, in fact apart from a larceny on a Form 1 the only completed offence, was followed up by a series of other offences reflecting some persistence, although the extent to which the prisoner was able to take items away from some of the properties he attempted to steal from, is a moot point. It can be seen from the CCTV footage that he had a trolley or crates in his possession, pretty well full up with the items that he had previously stolen from Luke’s Kitchen. The property is of relatively small value and as I pointed out it was largely food stuffs or living materials that were taken.
He entered subsequently Taylor’s College which is multi-level building in Bourke Street Waterloo and there he stole two milk crates. He picked up the crates at the time when there were apparently 11 bottles of milk in them, wearing the same clothing as the CCTV footage revealed he had been wearing when he broke into Luke’s Kitchen.
The aggravated breaking and entering with intent to steal offence, or the sequence 8, offence involved private premises, in relation to a block of units in Powell Street Waterloo. He was captured on CCTV footage jumping over a gate. He attempted to open a glass door to the unit waking up the victim. He stood on a chair and attempted to force open the glass windows above the door. The victim banged on the door and turned on several lights which caused him to leave. The prisoner was clearly only there for a relatively short period of time. I have taken into account some of the matters the Crown adverted to in its oral submission. But, it is to be fairly said on examination of the facts that the prisoner ultimately desisted, although it required at least some action on the part of the victim in order for that to occur.
The matter on the Form 1 involved an offence under the same provision, that is, attempting to break and enter with intent to steal knowing persons were inside. The victim of that offence was inside the premises. At 5.30am the prisoner entered the courtyard and made several attempts to force open a glass door. The victim who walked out to the door and yelled “what are you doing” presumably by asking that question caused the prisoner to leave, but before he left the prisoner said, “sorry mate”.
These two offences might fairly be seen to be at the lower end of the scale of offences of this type in terms of objective seriousness as might the earlier offences which are at a very low level of seriousness having regard to the property stolen on each occasion. I note the circumstance of aggravation pleaded by the Crown in relation to the aggravated breaking and entering with intent in circumstances of aggravation offences. I note the indictable offence being one of larceny is at the lower end of the seriousness of contemplated indictable offences and of course the circumstance of aggravation of knowing people inside the premises on the facts of these cases appear to me to be again at the lower end of aggravation as contemplated by the particular section. There are a range of aggravations that could be pleaded in particular circumstances, many of which would be seen to be more serious than those in this offence.
The facts of the matter are that the prisoner committed the offences in the early hours of the morning when it might ordinarily be contemplated that people would be within the property. On the other hand, the particular indictable offence pleaded that he intended to commit, one could not imagine being larceny of property of significant value. I bear in mind, as is common to all the offences, that there is no planning in any of the offences evident from the agreed facts. The prisoner was undisguised and would appear that he was not using gloves. Each of the offences might reasonably be seen as essentially “opportunistic”, although I accept in the context of considering the totality of the criminality there is a persistence of conduct, in other words repetitive conduct over a period of time, and there was of course a series of offences committed over that period of time.
With regard to the final matter for sentence, again, this is a matter under a different provision to the two offences I just referred to but with the same pleaded circumstance of aggravation, knowing persons inside, it is almost identical quality to the offending I have just described, save for the fact that it is charged under a different section.
The prisoner walked into the courtyard of the ground floor unit of a block of units at Waterloo. He entered the unit on this occasion and searched through the drawers in the kitchen and moved items around the unit including several glass bottles which he left on a chair in the yard. Consistent it seems to me with an intention to steal items of very little value or not of significant value, more domestic items, perhaps even food stuffs. The victim was asleep in the bedroom, heard his dog barking, walked into the lounge room and saw the prisoner in the yard through the glass door. This caused the prisoner having left the premises to run through the back gate. The prisoner’s fingerprints were identified on two glass bottles in the yard. The prisoner obviously had an opportunity within the premises to take what he wished. It would appear he did not steal anything. Again he was described in general terms in that matter consistent with the closed circuit television footage which was available to the authorities. So they are the facts of the matters.
As I said earlier in the discussion of the issue of the objective seriousness of the offending, I have had regard to some of the particular submissions of the defence and the submissions of the learned Crown Prosecutor which are most helpful. But whilst I agree with the submissions of the Crown and the defence as to the objective seriousness of the various offending, save for the submissions made by the Crown in relation to the sequence 8 offence, I conclude in relation to that offence, bearing in mind I am taking into account a matter of similar character in relation to the matter on the Form 1, that the offending in both the principal offence and the offence on the Form 1, falls below the middle range of objective seriousness. I have had regard to the aggravation pleaded, the execution of the offence, the indictable offence pleaded as intended to be committed, the absence of planning, the opportunism of the offending, the lack of professionalism and what could be contemplated to be the property stolen, if in fact property was stolen.
The defence, I should hasten to say, referred me to the decision of R v Huynh [2005] NSWCCA 220, where her Honour Simpson J, in her usual erudite and succinct fashion, examined considerations in relation to the objective seriousness of an offence with a pleaded circumstance of aggravation, in that case breaking, entering and stealing. There are other decisions of similar character, including a decision from the same year of Harris which discussed the particular matters I have earlier identified.
In assessing the offences that particularly involve entering premises in various ways for the purposes of stealing or with the intention of stealing another relevant judgment of course is the decision of Ponfield (1999) 48 NSWLR 327 to which reference is made in the written submissions of counsel for the prisoner. That guideline judgment particularly in the judgment of Grove J, set out a number of considerations in relation to sentencing for breaking, entering and stealing which as a matter of historical interest found their way into the particular legislation that now comprises s 21A. The current provision of course being introduced after the Crimes (Sentencing Procedure) Act 1999 came into effect in 2001. I bear in mind other features of the offending are relevant to this assessment of the objective seriousness of the offending that are identified by counsel for the prisoner including minimal damage and disturbance to property, that such property as was stolen, or contemplated to be stolen was not substantial in value. I bear in mind, even though I note what the Crown said about some persistence in relation to the sequence 8 offence, the prisoner did desist from offending after some confrontation and he apologised to one victim.
In the context of considering the ‘purposes of sentencing’ under s 3A of the Act, clearly persons within their own homes, are entitled to be free from disturbance and it would be distressing to be confronted by a person, including a person such as the prisoner who had no intent of causing physical harm but obviously had the intent of taking property from the occupants if he had the opportunity. Whilst I do not have any victim impact statements nor do I need them, so far as the purposes of sentencing are concerned in the context of the objective offending and having regard to the criminal history of the prisoner, obviously there is need for adequate punishment and weight to be given to general and personal deterrence, particularly personal deterrence and weight to be given to the protection of the community from the offender. But also, keeping our feet on the ground as to the character of the offending with which I am concerned. Making the prisoner accountable, denouncing his conduct, recognising the loss, not so much harm, to victim’s where property was stolen are relevant matters and of course I am required to promote his rehabilitation.

This brings me then to the criminal history of the prisoner. I do not wish to embarrass Mr Debortoli, but the truth of the matter is even making allowances for the matters that emerge from the reports tendered on his behalf and the submissions made about him by his learned counsel, he has a terrible criminal history. Albeit of relatively minor crimes, it is a history of persistent offending since he became an adult.
I noted his date of birth in 1969. I do not propose to go through all the details of his criminal history. But the prisoner has been gaoled from time to time since 1989 on many occasions and particularly in relation to stealing and breaking, entering and stealing offences. He received six months imprisonment in 1992. In 1993 he appeared in the District Court and was sentenced to a total sentence of three years with a non-parole period of one year, which reflected, under the then sentencing legislation, special circumstances.
He was sentenced at Waverly Local Court in relation to stealing offences to nine months imprisonment. He was convicted and sentenced in the Local Court at Central to six months imprisonment for entering a dwelling with intent to commit an indictable offence. In 2003 he appeared in the District Court and was sentenced to a total of five years imprisonment with a non-parole period of two years and six months in relation to breaking and entering and stealing offences. He had appearances in the District Court in 2001 in which he was sentenced for offences committed in 2000 to 20 months imprisonment with a non-parole period of 15 months for breaking, entering and stealing offences.
In 2012 he was sentenced to six months imprisonment for entering a dwelling with intent to steal. In 2013 he was sentenced to ten months imprisonment in the Local Court for breaking and entering and stealing. At the Cooma Local Court in 2014 he was sentenced to six months imprisonment for breaking, entering and stealing. He was sentenced to 18 months imprisonment at the Parramatta Local Court in 2013 for a breaking, entering and stealing offence. He was sentenced in the District Court in 2015 to a total sentence of three years imprisonment with a non-parole period of two years in respect of three breaking and entering offences, two with intent to steal the other involving actual stealing and finally at the District Court in September 2018 he was sentenced for offences committed in May 2017 for three years imprisonment with a non-parole period of 18 months.
I have not dealt with all of the details of his criminal history. But I think by referring to those particular matters I am reflecting a pattern of conduct that his counsel referred to as regular offending resulting in regular terms of imprisonment, leading to what she would characterise as institutionalisation. This could be true, but would reflect, one would have thought, merely the frequency of the prisoner’s offending and the failure of the prisoner from time to time to comply with his parole requirements, particularly to be of good behaviour. In that regard, as I said earlier in the piece, I have noted at least five such breaches of parole leading to revocation of parole.
The criminal history is not of itself an “aggravating factor” notwithstanding its length and persistence and the number of convictions. But it is a criminal history that does not of itself entitle him to any particular leniency.
There is available to me a psychological report and a social worker’s report obtained by an employee of the Legal Aid Commission. These reports of course contain representations which have not been the subject of the test of cross-examination by the Crown. The Crown has referred me to Wilson J’s judgment in 2017 about such matters, but of course there are many judgments going way back to Howie J’s judgment in Palu where caution was advised to Judges at first instance in accepting hearsay representations that are not subject to the test of cross-examination. As it turns out, in the context of the material available to the Court reflected in the criminal history, there is not anything particularly controversial about what appears in the reports that have been tendered in relation to this prisoner, albeit the accuracy of his reporting may be a matter of some conjecture.
So far as the psychological report is concerned, dealing with what I believe to be the most significant issue arising from it and a matter that thus to my mind does not turn upon the reliability of the prisoner as a historian, the psychologist’s opinion is that the prisoner does not suffer from any psychiatric or psychological condition that could reasonably be regarded as relevant in the sense discussed by many cases of the Court of Criminal Appeal, such as R vEngert (1995) 84 A Crim R 67, R v Israil [2002] NSWCCA 255, Hemsley v R [2004] NSWCCA 228, and more recently, for example, DPP(Cth) vDe La Rosa [2010] NSWCCA 194. A five Judge bench considering a Commonwealth sentence matter where McClelland CJ at CL, at [177]-[178], referred to the principles gleaned from previous cases in the sentencing of an offender suffering from a mental illness or intellectual handicap or other mental problems causally connected to the offending. I read nothing in the report upon which I could act other than the assessment of what could be called ‘personality disorders’ that warrants consideration of matters that would justify lesser weight being given to general deterrence, or lesser weight being given to personal deterrence which might of itself reflect that the custodial sentence will weigh more heavily on the prisoner or reduce the prisoner’s moral culpability.
The report prepared, by Ms Dombrowski, includes access to a report prepared for other sentencing proceedings in 2010 by a Dr Peter Ashkar. In that report, which is of course now nearly ten years old, the prisoner was assessed as having an intellectual functioning within the average range of functioning. He had some minor difficulties with regard to executive function. He had a tendency to under report difficulties. He had a personality style with little regard for social norms and reactive to impulsive and hedonistic behaviours. The psychologist opined in the case of this particular prisoner that he has a history of impulsive and poorly controlled behaviours, suggesting and underlying neurological vulnerability, pointing to a serious personality disorder with various mixed features. To my mind in the context of a history of offending and the offending with which I am concerned, which of itself may not be the most serious offending he has ever been charged with, it reflects perhaps greater weight being required to be given to specific deterrence. However it is to be borne in mind from the personal history of the prisoner that the psychologist has taken into account, and in respect of which to be fair the Crown might have some concern about in terms of its overall accuracy, that the prisoner has grown up with some significant or substantial disadvantages.
Firstly, he claims to have grown up in poor circumstances, growing up in what he called impoverished areas of Sydney. He attended a Catholic school until the end of year 6 and was then because of his father’s death at a young age transferred to Cleveland Street High School, my father’s high school from the 1930’s. I appreciate Cleveland Street High School was a school in a working class area. But it is not necessarily the case that all people who attend there are “impoverished”.
But his criminal history reflects early drug use in his teenage years. His criminal history in fact, reflects regular drug use right up until the present time, a matter also evidenced by the therapies that he was undertaking when he was on parole in 2019, that is, high methadone maintenance.
Be that as it may there are two substantial events that to my mind appear to have had a bearing on his conduct, although they are now matters of some antiquity. The first matters is, not putting these matters necessarily in chronological order, the death of his mother in 1988 when he was 19. He asserts his mother committed suicide by an overdose of drugs, prescription or otherwise I do not know, and this could have been a damaging matter for him to have experienced, particularly given that his father was already dead.
His sister died of a drug overdose he said, after being taken into police custody when he was ten years of age. Another significant matter, which no doubt, had an effect upon him. Without any obvious psychological or psychiatric experience, I find it difficult to understand how one would then turn towards the use of prohibited drugs with a history of a sister dying of a drug overdose at an early age. But be that as it may I am prepared to accept in the context of the history set out by the psychologist these are matters that have had an impact upon him.
He has been diagnosed in the past with Hepatitis-C. But I note somewhat contrary to some of the claims of the social worker, he has not received treatment in relation to that matter. But that is an underlying health issue that no doubt is of some significance while he is in custody. He gave a somewhat conflicting history to the psychologist, to that given to the social worker concerning his use of methadone. To the psychologist he claimed he had been “kicked off” the program in 2017, but in fact the social worker gave a somewhat different history. In that regard, by reference to the breach report prepared by Community Corrections to the Parole Authority leading to the breach of his parole in September 2019, it noted that the prisoner on release from custody in August 2019 for time served in that alleged domestic violence offence, had in his possession a methadone script. It noted in the report to the Parole Authority of 13 September that the prisoner was aware of the requirements of his parole supervision, but reflected a supervision plan to assist him on his release to custody when further granted parole, if in fact that occurred, including referral to the EQUIPS Foundations Program, engaging in methadone treatment, receiving external supervision and assistance in relation to drug and anger management issues and undertaking what is described as Practice Guide Intervention. No doubt strategies were directed at the issues to be raised in supervision, including managing his impulsivity, stress anger and his cravings for prohibited drugs.
With regard to the psychologist’s report, the psychologist on assessment of the prisoner by reference to the previous report, reflecting upon his long history of offending, noted that adverse experiences in his upbringing have compromised his social functioning and his development of adaptive coping skills.
I pause to point out, that consequently, this leads to him offending and creates risks for the community. She said in the report that his use of illegal substances, arises out his personality dysfunction, but in part is a form of self-medication to manage negative feelings. She also said that his personality disorder, as she identified it, was a “major barrier to his rehabilitation and treatment”, and that compliance would likely be an issue in relation to any therapeutic intervention. This is self-evident from his past performance and I have taken these matters into account. But he does still require, notwithstanding persistent offending and persistent drug use, professional assistance because at the end of the day, to cite observations made by Wells CJ in South Australia, in the case of Yardley v Betts (1979) 1 A Crim R 329, promotion of rehabilitation is not just for the benefit of the offender, it is for the benefit of a community.
The psychologist noted his long history of institutionalisation as did his counsel that will require a high level of intervention. I trust the Parole Authority will pay close heed to the need for high level of intervention. Sending the prisoner away for two or three weeks at a time, which seems to what happened on the last occasion he was on parole, does not seem to me to be a high level of intervention that this particular prisoner requires.
With regard to the social worker’s report it covers much the same territory. It reflects upon aspects of the circumstances of him being on parole and it would appear in the context of some earlier remarks I have made about his charging in relation to unproven domestic violence offences, that he, whilst on parole, developed a relationship which was dysfunctional and that his incarceration, albeit for a month, had a huge impact upon the progress of his rehabilitation. He lost his accommodation and the circumstances of his offending on this occasion, is very much consistent with a person without resources to survive in the wider community.
I have noted the expressions of remorse by the prisoner. I do not believe remorse is a substantial mitigating factor in this matter. He expresses remorse, but it seems to me even in the terms that are reflected in the social worker’s report, it is more a reflection upon remorse for his circumstances than any effect he may have had upon any particular victim. That having been said I note what the social worker has said concerning his attempts to try and develop positive behaviours, but circumstances have defeated him in that regard.
The other evidentiary material I should refer to is the material presented by the Crown in relation to the Corrective Services response to the COVID-19 or coronavirus pandemic. This is also a matter the subject of particular submission by learned counsel for the prisoner and it has been commented upon by the Crown. I would not allow the Crown to tender a press release from Corrective Services. That would be entirely self-serving in its terms. However the other document presented shows that the Department of Corrective Services is at least alert to the threat from Corona virus and is taking steps to at least try to mitigate the possible effects of the spread of the infection within the correctional setting.
The first observation I make is one that just arises out of taking judicial notice of my understanding of the correctional system. It would be very difficult to control the environment in the correctional setting. Social distancing would be very difficult to police and of course even without the ‘Corona virus’ there are matters of security, both physical and medical security, that are difficult to police. I accept as a general proposition what has been said by counsel for the prisoner and what has been said in decisions of superior Courts to mind in recent weeks about this topic. But putting aside the issue of specific evidence in relation to such matters, in an individual case there would be considerable concern within the Correctional community, that is prisoner officers and particularly prisoners, as to the risks presented by the Corona virus and the threat of infection is a matter that creates heightened anxiety amongst prisoners.
There is a decision, for example, of the Victorian Court of Appeal of 23 March in a decision of Brown v R [2020] VSCA 60. There their Honours, particularly Justices Priest and Weinberg, inter alia, noted that the situation was rapidly evolving, that courts were hesitant at that point to express a general statement of principle regarding how courts should deal with this crisis as might affect relevant sentencing principles. But was accepted that the situation causes additional stress and concern for prisoners and their family as with other members of the community. The stress I would imagine in correctional setting may be greater than that within the wider community.
There is an important matter to bear in mind from the material the Crown has given me. Although there appears to be little or no family support for this prisoner, it is the case that access to outside visits and the like would be greatly restricted by precautions that need to be taken in relation to the protection of prisoners and Correctional staff from the Corona virus. Legal visits of course are curtailed to some extent. There are restrictions upon inmate movements which will affect the opportunity of the prisoner to gain access to programs that might give assistance. The extent to which that is so is not the subject of any particular evidence but it is a matter to be taken into account. In an earlier case that I did last week I was drawn to decisions that reflect upon health issues concerning a particular prisoner making the circumstances of custody more adverse or onerous. In this particular matter I am mindful of the prisoner having an underlying condition, that is, Hepatitis-C. It may make him more vulnerable to the more serious effects of the virus if he is infected. It must be a matter of concern for him, I accept that to be so. But the case is absent particular evidence in relation to his circumstances. It is the case there are many decisions of high authority that reflect the principle that the care of prisoners through the auspices of Justice Health is a matter for the correctional authorities. But the specific health issues of a particular prisoner or general threats to a prisoner’s health are relevant matters to take into account and I do so in the way in which I am required to take into account a large number of matters in a sense discussed by the High Court in the decision of Markarian v R [2005] HCA 25; 228 CLR 357.
As I said in the course of discussion with learned counsel for the prisoner, this is not a borderline case where one might make a specific and identifiable decision to reduce a minimum period, for example, to largely assist in avoiding any exposure to greater risk whilst in custody. It is not practical given the character of the prisoner’s criminal history, the character of the offending and the breach of conditional liberty, to fix a non-parole period that would reflect a consideration of immediate release to accommodate that. As I pointed out to learned counsel for the prisoner and the Crown, without having formed a view as to what the actual non-parole period is, it is one of these situations where regretfully for the prisoner, I am not in a position to fix a non-parole period that might contemplate release to the community before it might reasonably be expected that a vaccine be found for this particular insidious virus.
With regards to the submissions of the parties it would be apparent from a number of the observations I have made, I specifically referred to or had regard to particular submissions. The Crown’s very helpful submissions in relation to the significance of breach of conditional liberty and prior criminal history have been taken into account. The prisoner is entitled to a discount of 25% upon the otherwise appropriate sentence for each of the sentences to be imposed and the aggregate sentence for the utilitarian benefit of the plea it is agreed between the parties. I have taken into account what the Crown has said about the commencement of sentence and the weight to be given to untested hearsay representations.
The Crown says and it is conceded by counsel for the offender that the s 5 threshold has been crossed. I am obliged to fix a term of imprisonment even allowing for the institutionalisation of the prisoner.
It follows from remarks I have earlier made and what I foreshadowed by the sentence to be imposed that I have ultimately come to the conclusion that I should find special circumstances pursuant to s 44 of the Act. I believe there should be an adjustment of the relationship of the non-parole period to the balance of sentence to provide for an extended period of supervision of the prisoner. In part this reflects a consideration of the circumstances in custody in the current health environment to which I have referred, but that is not the most significant matter. I believe, notwithstanding past failings on parole, allowing what has been put forcefully and eloquently by his counsel, that I should give him an opportunity for further supervision in the community, if in fact the Parole Authority is prepared to give it to him. Of course the Parole Authority in reviewing his situation may not be prepared to release him at the expiry of his non-parole period. But he certainly is a person given his personal history and offending and drug history that requires attention to intense supervision.

I have taken into account submissions that have been made about his “social disadvantage”. Of course one approaches the matter in the context of what I have said about hearsay representations that are not established by independent evidence. But I do make the point in relation to this prisoner that allowing for a degree of social disadvantage and allowing for obviously traumatic events in his life such as the death of his sister and particularly his mother, these matters whilst relevant in this sentencing exercise and having relevance no doubt throughout his life, as each sentencing exercise arises, are matters to be seen as matters of degree. As for example circumstances of aggravation are to be seen as matters of degree. In that regard as the Crown pointed out, and as I am well familiar with having worked in Wilcannia, Mr Bugmy to whom reference is made and which principles derive the submissions of the defence which I accept in principle, came from a far more disadvantaged community, both individually and communally, than that painted in the reports presented by the defence. But having said that one must recognise the issues that I have earlier identified, early introduction to drug use and the like.
The extent of deprivation of course is obviously clearly a matter for evidence and it is a matter that can more profoundly affect particular people, particularly people with proven susceptibilities. So ultimately whilst I acknowledge the submissions and accept their general relevance to the situation that confronts me, what has been put on behalf of the prisoner has to be seen as an issue of degree.
Obviously any sentence I impose must reflect the totality of the criminality. In that regard I note what was said about totality and criminality by the High Court majority in Pearce v R (1998) 194 CLR 610, particularly at [45]. These principles were discussed further by the High Court in Johnson v R [2004] HCA 15; 78 ALJR 616, which also cited the decision of Mill v R (1988) 166 CLR 59 and its discussion of the concept of totality of sentencing for practical purposes, particularly picking up on the observations of the famous English academic D A Thomas in his landmark text “Principles of Sentencing”.
Another decision to be referred to, particularly pertinent in this matter given the timing of the offences in relation to one another, the character of the offending and the like are principles that were summarised by Hall J of the New South Wales Supreme Court in the 2009 decision of R vXX (2009) 195 A Crim R 38, particularly at [52] where his Honour went through a series of previous decisions divining relevant principles, some of which are considered in this exercise. But ultimately I have determined and aggregate sentence is the appropriate way to give effect to the totality of criminality.
The last matter of course that I have not ignored is taking into account mitigating factors under s 21A(3) of the Act. There are not many. The pleas of guilty are mitigating factors but of course the prisoner receives a discrete discount for that. The prisoner has expressed remorse but I do not believe it is a substantial mitigating factor, it barely gets to the threshold. Obviously I have concluded that the offending was unplanned which is a mitigating factor arising under the Act which is relevant to the assessment of the objective facts. Of course I cannot conclude that the prisoner is unlikely to re-offend. I cannot conclude that he has good prospects of rehabilitation. I do not mean this unkindly of Mr Debortoli, but he is a 50, 51 year old man and he knows the ropes and he knows I would imagine what is realistic in the circumstances. His past performance does not give one confidence. But that is not a reason, in my opinion, to decline to make a finding of ‘special circumstances’. He will be released to the community at some time. One would hope that for his own benefit and for the benefit of the community that he can take up opportunities that are available to him if they are made available to him. In that regard I recognise the practical difficulties for individual prisoners of coming back to the community with no support network. This is the subject of literature and film and debate within criminological journals. Time and time again people getting out of prison, thrown onto the scrap heap, going through the revolving door that brings them back to court again. That having been said, I can only determine in good faith that there should be some greater period of supervision hopefully to provide some assistance to a person who, to be frank, if he is going to give up the use of drugs he is just going to have to make that decision of his own motion, albeit that he may need professional assistance to get to that point.
Thus, having had regard to all the material put before me I move to the orders.

In relation to all offences you are convicted. Pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 you are sentenced to an aggregate sentence of two years and eight months imprisonment commencing on 6 January 2020 and expiring on 5 September 2022. I have rounded that sentence to an even number of months. If one does the mathematics of 25% upon what would otherwise be the starting sentence, one gets a result that involves months and days. I fix a non-parole period of one year six months imprisonment commencing on 6 January 2020 and expiring on 5 July 2021. The earliest Mr Debortoli that you will be eligible for release to parole will be 5 July 2021. Do you understand that?

OFFENDER: Yes your Honour.
HIS HONOUR: And you will appreciate of course that will be a matter for the Parole Authority.
OFFENDER: Yes your Honour,
HIS HONOUR: But I am giving you an extended period of supervision that will be one year and two months. In overall terms it is modest. In the context of the overall sentence it is reasonably substantial to assist you.
In relation to the indicative sentences I impose the following indicative sentences:

In relation to the sequence 1, break, enter and steal offence the indicative sentence is 18 months imprisonment.
In relation to the enter dwelling with intent and the larceny of some milk crates, the indicative sentence is six months imprisonment.
In relation the aggravated breaking and entering with intent, taking into account the matter on the Form 1, the indicative sentence is 18 months imprisonment.
In relation to the aggravated enter dwelling with intent, the indicative sentence is 12 months imprisonment.

Thus, as I said, the total sentence Mr Debortoli is two years eight months with a non-parole period of one year six months.

**********

Decision last updated: 21 August 2020

Medium Neutral Citation:	R v Debortoli [2020] NSWDC 466
Hearing dates:	8 April 2020
Date of orders:	8 April 2020
Decision date:	08 April 2020
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Sentenced to an aggregate term of imprisonment of 2 years 8 months; non-parole period 1 year 6 months imprisonment.
Catchwords:	CRIME – sentence – enter building with intent commit serious indictable offence larceny – attempted aggravated break and enter with intent to commit serious indictable offence larceny – people there – extensive criminal history – number of parole breaches – stealing of items of low value – mainly foodstuffs – drug use – institutionalised – social disadvantage - remorse – pleas of guilty – totality of criminality – COVID-19 considerations – health issues.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Callaghan v R [2006] NSWCCA 58 DPP(Cth) v De La Rosa [2010] NSWCCA 194 Harris v R [2005] NSWCCA 204 Hemsley v R [2004] NSWCCA 228 Johnson v R [2004] HCA 15; 78 ALJR 616 Markarianv R [2005] HCA 25; 228 CLR 357 Mill v R (1988) 166 CLR 59 Palu v R [2002] NSWCCA 381 Pearce v R (1998) 194 CLR 610 Ponfield v R (1999) 48 NSWLR 327 R v Engert (1995) 84 A Crim R 67 R v Huynh [2005] NSWCCA 220 R v Israil [2002] NSWCCA 255 R vXX (2009) 195 A Crim R 38 Yardleyv Betts (1979) 1 A Crim R 329
Category:	Sentence
Parties:	Regina (Crown) Adrian Debortoli (offender)
Representation:	Solicitors: Ms L Robeau (DPP) Ms S Perera (offender)
File Number(s):	2019/00278782
Publication restriction:	No