R v Eckersley

[2022] NSWDC 747

District Court

New South Wales

Medium Neutral Citation:

R v Eckersley [2022] NSWDC 747

Hearing dates:

15 August 2022

Decision date:

02 September 2022

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted.

Special circumstances found – Bugmy factors, institutionalisation, need for a longer period

on supervised parole to assist with drug abuse, help guard against ongoing institutionalisation

& to reintegrate into the law-abiding community.

Form 1 matters (2021/00118140 SEQ 005, 2021/00118204 SEQ 002, 005 + 006)

taken into account on sentence

s166 matter 2021/00118140 SEQ 001 – Convicted pursuant to s10A – no other penalty

imposed

Indicative sentences of imprisonment:

2021/00118140

002 + Form 1 matter 005 – 2 years & 3 months

2021/00164791

001 + Form 1 matters 2021/00118204 SEQ 002,005,006 – 5 years with NPP 3 years & 3

months

Aggregate sentence:

Sentenced to a total term of imprisonment for 6 years comprising a NPP of 3 years and

10 months to commence on 28 April 2021 and to expire on 27 February 2025, upon

which date he is eligible for parole, and a balance of term of 2 years and 2 months to expire on 27 April 2027.

Catchwords:

CRIMINAL – Sentence – 1. aggravated break & enter & commit serious indictable offence – larceny – knowing persons present – police pursuit, not stop, drive dangerously + Form 1 matters: larceny – take and drive – enter building with intent to commit indictable offence – 2. drive under the influence – on 15-month CCO at time of offences – objective seriousness of offences – subjective matters – drug abuse – Bugmy factors – substantial criminal history - institutionalisation

Legislation Cited:

CrimesAct 1900

Crimes (Sentencing Procedure) Act1999

Road Transport Act 2013

Cases Cited:

Attorney General’s Application No 1 of 2002 [2002] NSWCCA 518

Bugmy v The Queen [2013] CLR 571

RvWay [2004] 60 NSWLR 168

Category:

Sentence

Parties:

Regina
Eckersley, Timothy Mark

Representation:

Solicitors:
ODPP: Ms G Cornett
ALS: Mr U Naveed

File Number(s):

2021/00118140
2021/00118204
2021/00164791

JUDGMENT

1. HIS HONOUR: Timothy Eckersley appears for sentence in respect of two offences, they being aggravated break and enter and commit serious indictable offence (larceny), knowing persons present contrary to s 112(2) of the Crimes Act 1900. The maximum penalty provided is 20 years’ imprisonment and there is a standard non-parole period of five years’ imprisonment. When being dealt with for that offence, he asks the Court to take into account a number of offences contained on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act1999.

2. They are: take and drive conveyance contrary to s 154A(1)(a) of the Crimes Act which has, when dealt with separately, a five year maximum penalty; an offence of larceny contrary to s 117 of the Crimes Act, which when dealt with separately has a maximum penalty of five years’ imprisonment, and an offence of enter building with intent to commit an indictable offence, contrary to s 114(1)(d) of the Crimes Act, which, when dealt with separately, has a maximum penalty of seven years’ imprisonment.

3. The second offence in respect of which he is to be sentenced is police pursuit, not stop, drive dangerously, first offence, contrary to s 51B(1) of the Crimes Act. The maximum penalty provided is three years’ imprisonment. There is no standard non-parole period and there is an automatic licence disqualification of three years, which can be reduced to 12 months, but no less. When being sentenced in respect of the police pursuit, he asks the Court to take into account a further offence on a Form 1, being drive under the influence contrary to s 112(1)(a) of the Road Transport Act 2013, in respect of which the maximum penalty is 18 months’ imprisonment and/or a $3,300 fine.

4. The offender was committed for sentence on 23 March 2022 from the Kempsey Local Court and is accordingly entitled to a discount of 25% for the utility of the plea in respect of each of the offences. The offences all occurred on 28 April 2021. Having been arrested on that date and charged with some offences, he was subsequently charged on 8 June with the other relevant offences. He has been in custody since 28 April 2021, and solely in respect of these matters.

5. At the time of the commission of the offences, he was subject to a Community Correction Order of 15 months to date from 15 March 2021. These offences occurred approximately six months later and before the expiry of the Community Correction Order, which was to expire on 14 June 2022. The facts are agreed, and they are as follows.

1. At the time of the offences the offender was 42 years of age. He is now 43.

2. On Wednesday, 28 April 2021, the offender committed a series of offences across the Kempsey area.

Offence Committed at 2 Cochrane Street, West Kempsey

3. The victim resided in Cochrane Street, West Kempsey, with his wife and their three young children aged ten years, five years and 18 months.

4. At about 12.30am on Wednesday, 28 April 2021, the victim went to bed after helping his autistic son get to sleep. That night, the victim’s parents-in-law were staying in a motor home on the nature strip in front of the house. Before going to bed, the victim closed the front door of the house but left a key in the lock so the parents in‑law could use the internal toilet.

Aggravated break and enter and commit serious indictable offence - s 112(2)

5. At around 1.45am the victim was woken by someone walking out the front door. The victim got out of bed and walked outside onto the street footpath. He saw the offender getting on a bicycle. The offender started riding along Cochrane Street towards North Street. The victim yelled out “Oi” the offender said “Ah, don’t scare me, what are you doing?” The victim said, “What are you doing?” The offender said, “I was just walking past.”

6. The victim decided to check the camera set up outside his house. The victim can view any recording on his mobile phone, so he went back inside to get his phone from the bedroom. His phone, a Samsung Galaxy Note9, had been left on the bedside table but was missing. The charging cord was lying on the floor towards the bedroom door. The victim’s wife’s phone, also a Samsung Galaxy Note9 was also missing from the bedside table. The victim realised at that point that their house had been broken into.

7. The victim got into his car and drove around the West Kempsey area looking for the offender for about five minutes before returning home. He woke his in-laws and used their phone to contact police. While the victim was on the phone to police, he noticed his Asus laptop was missing from the end of his son’s bed where he had last left it. Also missing from the bed was a Lenovo computer tablet. The victim’s wife’s purse was missing from her handbag in the loungeroom, and a Scotch bottle was also missing, which contained tea and not Scotch.

8. Police arrived at the victim’s house. The victim used his son’s Apple iPad to log into the Samsung website to find the location of the stolen Samsung phones. The website showed that the phones were in Gordon Nixon Avenue. Police attended there but were unable to locate the phones.

9. The victim reviewed the recorded footage from his security system. The cameras were motion sensitive and recorded footage of the offender walking around the front and side of the house. According to the timestamp on the footage, at 1.31 the offender can be seen walking on the path towards the house. At 1.47 the offender can be seen walking away from the house and back onto the street. He was carrying the stolen items previously referred to. At 1.47 the victim can be seen walking from the house in the direction of the offender.

10. Later that morning, the victim found a McDonald’s cup on the outdoor lounge, located on the front veranda of the house. The victim reviewed the camera footage again and noticed that the offender was carrying a McDonald’s cup. He took a screenshot of the offender taking a sip from the straw of the cup. The victim also took photos of the cup on the lounge before placing it into a zip lock bag and giving it to police. DNA recovered from the straw of the cup matched that of the offender.

11. On Wednesday, 5 May 2021, police obtained CCTV footage from the McDonald’s in Smith Street, Kempsey. The footage recorded the offender attending the restaurant at 1.01am on 28 April 2021; that is, half an hour before the offence took place.

12. On Tuesday, 8 June 2021, police attended the Clarence Correctional Centre, where the offender was being held. The offender was placed under arrest for this offence and was offered the opportunity to participate in an ERISP, which he accepted. He denied any knowledge of this offence.

Offences committed at River Street, West Kempsey

13. The victims in these offences were Mr and Mrs Suffolk. At the time of the offences, Mrs Suffolk was 80 years of age, and her husband was 86 years of age. The victims had lived in River Street, West Kempsey, for the past 54 years. They owned a white Toyota Yaris, which was kept in the carport next to the house.

14. At around 10pm on Tuesday, 27 April 2021, Mrs Suffolk went to the carport and locked the vehicle. She returned inside the house and placed the car keys in the top drawer in the kitchen before going to bed.

Enter building with intent to commit an indictable offence - s 114(1)(d) - Form 1 offence

Larceny - s 117 - Form 1 offence

15. At around 7am on Wednesday 28 April 2021, Mr Suffolk wished to light the fire in the living room. He unlocked the rear sliding door and went outside to get fire lighters. He returned and lit the fire, leaving the rear sliding door open. He then went to the toilet, thinking he wouldn’t be long. While the door was open, the offender entered the house, located the set of car keys in the kitchen drawer and took them and exited the house through the same door.

16. After using the toilet and returning to the living room, the victim saw the offender on the rear veranda walking towards the carport. The victim walked through the kitchen towards the carport with the intention of confronting the offender. When the victim reached the carport, the offender was no longer there. The victim walked towards the rear veranda where he saw the offender jump over the veranda railing at the far end of the veranda. The victim walked out to the front of the house, still intending to confront the offender.

17. Mrs Suffolk was in the bedroom at the front of the house and saw her husband run past the front window. She thought this was strange. She walked to the rear sliding door and noticed that it was open. She looked outside but could not see her husband, so she walked back to the front of the house and to the front door. As she opened the front screen door, the offender rushed past her towards the carport and said, “Sorry, ma’am.” The offender got into the driver’s side of the white Toyota Yaris and started the vehicle. Mrs Suffolk approached the vehicle and attempted to open the door.

Take and drive conveyance - s 154A(1)(a) - Form 1 offence

18. Meanwhile, Mr Suffolk had not been able to locate the offender out the front of the house and walked a full lap of the house, back to the rear veranda and into the carport. When he got to the carport, he saw the offender inside the Toyota Yaris. Both Mr and Mrs Suffolk witnessed the offender reverse the vehicle out of the driveway onto River Street and drive off towards town.

19. Mr Suffolk walked back inside the house and noticed that the top drawer in the kitchen where the keys were kept was open and the keys were missing. Mrs Suffolk reported the incident to police.

Police Pursuit - Not Stop - Drive Dangerously - s 51B(1)

20. At around 7.30am that morning, a police vehicle was patrolling in Middleton Street, South Kempsey, when they sighted the offender inside the Toyota Yaris, which was then parked on the street. On sighting the police, the offender drove off. Police attempted to stop the Yaris, but the offender failed to stop. A police pursuit was initiated.

21. The Yaris continued east on Middleton Street, a signposted 50-kilometre KPH area at a speed of 110 KPH. The Yaris then made a left turn onto Lachlan Street where traffic was moderate. The offender reached speeds of around 88 KPH in a signposted 50 KPH zone, overtaking several vehicles on double unbroken lines. The Yaris continued onto Lord Street, driving in much the same manner.

22. As the Yaris was attempting to cross the Macleay River bridge, it slowed to about 30 KPH due to heavy congestion on the bridge. The Yaris exited the bridge onto Smith Street, where another police vehicle was waiting at the intersection and took up position as the primary pursuit vehicle. Police observed the offender, who was the sole occupant of the Yaris.

23. The Yaris conducted a U-turn into a service road, outside the Kempsey Central shopping centre, driving the incorrect way down this one-way road. The Yaris then made a left turn onto Verge Street before immediately turning right onto York Lane. It travelled the entirety of York Lane before travelling into the Woolworths Big W car park where it reached speeds of 60 to 70 kilometres per hour. During this time, there were other vehicles and pedestrians moving about in the area.

24. The Yaris turned south out of the car park onto Smith Street and conducted a U-turn at the intersection of Stuart Street against a red traffic light, which nearly caused a collision with another vehicle. The Yaris then travelled north on Smith Street, a signposted 50 KPH area, reaching speeds of between 140 and 150 KPH, as it approached the 100 KPH area. The Yaris overtook another vehicle on the incorrect side of the roadway.

25. The Yaris continued north on Macleay Valley Way in the 100 KPH area at speeds in excess of 160 KPH. The offender overtook other vehicles again, however slowed considerably to do so. At 7.39am the Yaris entered a 50 KPH zone into Frederickton. Police observed it at high-speed, overtaking vehicles on the wrong side of the road, up a crest with no vision of oncoming traffic. Due to the offender’s dangerous manner of driving, the pursuing police terminated the pursuit.

26. At around 7.45am, another police vehicle was stationed at the U-turn bay on the Pacific Highway at Warrell Creek, waiting to see if the offender’s vehicle passed. At around 7.59am, police at this location sighted the Yaris travelling in a northbound direction and sought permission to commence a pursuit or to re‑engage, which was granted. Police caught up with the Yaris and activated all warning devices, signalling the Yaris to stop, which it again failed to do. A second pursuit was commenced.

27. Police pursued the Yaris, which continued north at speeds in excess of 170 KPH. The Yaris continued northbound, overtaking and undertaking slower moving vehicles. When the Yaris reached the Valla Service Centre, it exited the Pacific Highway, performed a full lap of the roundabout and re-entered the highway, still travelling north. The Yaris undertook a Toyota HiLux, almost forcing it off the roadway. The Yaris continued at speeds in excess of 170 KPH, slowing only to undertake more vehicles.

28. Police set up a spike location north of the Bellinger River bridge at Raleigh but due to the danger presented to other motorists by the offender’s driving, the spikes were not deployed. The Yaris continued north before taking the Keevers Drive exit from the highway at Repton. At 8.15am, after exiting the highway, the offender failed to successfully navigate a roundabout and collided heavily with a traffic barrier. The collision caused the Yaris’ airbags to deploy.

29. Police arrived at the location to find the offender had already fled the Yaris. With the assistance of a police dog, the offender was located trying to hide in the bushes at the roundabout, about ten to 15 metres from the location of the collision. He was then arrested.

30. At the scene, the offender initially told police his name was Vincent Mead or Vincent Smith. Police quickly established this information was false and the offender eventually gave his real name.

31. Whilst speaking with and observing the offender, police formed the opinion that the offender may have been under the influence of a drug, based on his sluggish, slow, confused actions and pinpoint pupils. The offender was conveyed to Coffs Harbour Police Station where he was introduced to the custody manager and his rights were explained. Aboriginal Legal Aid was contacted on behalf of the offender, but he refused to speak to them. He submitted to a breath test which returned a negative result.

Drive Vehicle Under Influence - s 112(1)(A) Road Transport Act - Form 1 Offence

32. Police informed the offender of their intent to submit him to an assessment of sobriety, which he duly failed. The offender was taken to Coffs Harbour Hospital, where he provided blood and urine samples. The samples were subsequently analysed, and the offender’s blood sample was found to contain 0.05 milligrams per litre methylamphetamine, less than 0.001 milligrams per litre of Delta-9-tetrahydrocannabinol and 0.015 milligrams per litre of Delta‑9‑THC acid. A preliminary report from an expert forensic pharmacologist opined that at the time of the offences, the offender was under the influence of the withdrawal effects of methylamphetamine to the extent that his driving ability was impaired.

33. From the hospital the offender was returned to Coffs Harbour Police Station. He participated in an ERISP, during which he admitted entering the residence in River Street, West Kempsey and taking the Yaris, though he did not wish to elaborate any further.

34. Police obtained a DNA sample from the offender via a buccal swab. DNA testing was conducted on the white Toyota Yaris and the offender’s DNA was located on the driver’s side airbag.

Driver Never Licensed - s 35(5) Road Transport Act

35. A police check revealed the offender has never held a driver’s licence in New South Wales. He held a provisional driver’s licence in Queensland, however that had expired in 2013.

36. The offender was charged with the offences relating to River Street, West Kempsey and the police pursuit.

OBJECTIVE SERIOUSNESS

Aggravated Break and Enter and Commit Serious Indictable Offence, Cochrane Street, West Kempsey

6. While the front door was closed, it was not locked. and the offender’s entry did not cause any damage. Both the parents and their three children were present in the home at the time of the offending. The property stolen comprised a number of high value items, including two Samsung Galaxy Note9 mobile phones, an Asus laptop, a Lenovo computer laptop, the wife’s purse and the bottle of Scotch which actually contained tea. There is nothing contained in the facts provided by the prosecution as to whether any of the property was recovered. I would assess this particular offence as falling below the mid-range of objective seriousness.

7. As to the offence of enter building with intent to commit indictable offence on the Form 1, involving the Suffolks, I note that the Suffolks were both vulnerable persons, being 80 and 86 years of age. The offender entered via an unlocked or open door and there was no damage. Both Mr and Mrs Suffolk were present in the premises at the time of the entry. I accept that this represents a significant invasion of the security of the victims’ home in circumstances where they were no doubt vulnerable due to their advanced age. I accept that the offending was not overly sophisticated and can be appropriately described as opportunistic.

8. I accept that the indictable offence is particularised as larceny, which is towards the bottom of the range of offences covered by the phrase “serious indictable offences.” I accept that the offending in relation to this offence falls just above the mid-range of objective seriousness. As to the offence of take and drive conveyance, the vehicle was taken from them in circumstances where they were both present and actively trying to stop the offender from taking the vehicle. Mrs Suffolk had in fact attempted to open the car door as the offender was trying to take the vehicle. Again, I accept the victims were vulnerable on the basis of their age.

6. As to the offence of police pursuit, not stop, drive dangerously, having taken the motor vehicle, the offender actively tried to avoid police. The police pursuits occurred over a period of approximately 45 minutes. The first pursuit was terminated because of the danger presented to other road users of deploying the spikes on a roadway, and because of the driving of the offender. During the pursuits, the offender overtook several vehicles on double unbroken lines. He drove the incorrect way down a one-way road. He conducted a U‑turn at an intersection against a red traffic light, nearly causing a collision with another vehicle.

7. He overtook another vehicle on the incorrect side of the roadway and at times of overtaking other vehicles, he was variously travelling at high speeds in excess of the speed limit, at one stage travelling at a high speed, overtaking vehicles on the wrong side of the road and travelling up a crest with no vision of the oncoming traffic. In overtaking the Toyota HiLux, he almost forced it off the roadway. In Middleton Street, he exceeded the 50-kilometre speed limit by 60 kilometres and travelled at 110 kilometres. He travelled through the Woolworths Big W carpark at speeds of 60 and 70 kilometres per hour, while there were vehicles and pedestrians moving in that area.

8. He did a U-turn against a red traffic light, nearly causing a collision with another vehicle, and then travelled in a signposted area of 50 kilometres per hour, reaching speeds of 140 and 150 kilometres per hour, again significantly in excess of the speed limit in what was an urban area. On the Macleay Valley Way, he was travelling at speeds in excess of 100 kilometres per hour, which was 60 kilometres more than the sign-posted speed limit. After entering the 50-kilometre speed limit zone at Frederickton, he continued at high speed to overtake vehicles on the wrong side of the road as referred to, while travelling up a crest with no vision.

9. He was otherwise observed to be travelling at speeds of 170 kilometres per hour and after undertaking the Toyota HiLux, almost forcing it off the roadway, he continued at speeds in excess of 170 kilometres per hour, only slowing when it was necessary to undertake other vehicles. He conducted himself in this outrageous fashion while apparently suffering the withdrawal effects of methylamphetamine, and when stopped, he was observed to be sluggish, slow and have confused actions and pinpoint pupils.

10. This offence is not one which has a standard non-parole period, and it is not necessary to evaluate it against any mid-range of offending. The Crown’s submission is that it falls above the mid-range and towards the upper range of objective seriousness and the submission on behalf of the offender is that it falls at the upper end of the mid-range. In my view, it is a very serious example of a police pursuit. It is fortunate that it did not result in a more serious charge. The offender was travelling in the early hours of the morning, putting at risk other road users who were then present and, indeed, even pedestrians, at least in the carpark at Woolworths.

11. In my view, this is a very serious example of police pursuit. Indeed, it ended with the offender crashing the vehicle. All of these offences were also aggravated by the fact that the offender was at the time, subject to a 15-month Community Correction Order. That is a form of conditional liberty, and within six weeks of that order having been imposed, he committed all of these offences on the one date.

SUBJECTIVE MATTERS

15. As I referred to, he was at the time some 42 years of age. Before the Court in respect of subjective matters, are the offender’s New South Wales criminal history, a New South Wales Department of Corrective Services Conviction Sentence and Appeals Report and a Queensland Court Outcomes document. In addition, the Court has been provided with a Sentencing Assessment Report dated 11 May 2022 under the hand of Rebecca Bourke, Community Corrections Officer. A psychological report under the hand of Ms Gumbert dated 5 July 2022.

16. A reference from Ms Christy Aitken dated 7 August 2022 and a letter from Hall Payne Lawyers dated 9 August 2022. A note referred to in the index to that material as a letter of support - it is in fact not a letter of support, it is simply an acknowledgement by that firm of solicitors that they have been instructed on behalf of the offender to commence action against the State of Queensland and the Trustees of the De La Salle BoysTown in relation to issues said to arise from childhood issues related to his presence at BoysTown in his childhood. All that letter does is acknowledge that they have taken action in relation to his claim. The offender also gave evidence on sentence. Subjective matters have been drawn from that material.

17. The offender is an Aboriginal or Indigenous person adopted by non‑Aboriginal parents in his early infancy. He has three older adoptive siblings, being two sisters and a brother. He reported to Ms Gumbert that he had a safe and stable home, with good relationships with his adoptive family and denied any history of abuse, neglect or exposure to other adverse circumstances at home. He apparently did not know that he was adopted until around the age of 14. His adoptive parents then disclosed that he had been adopted and he refers to himself as thereafter rebelling and becoming involved with an antisocial peer group.

18. He began using alcohol and cannabis and coming into contact with police for petty offences, such as shoplifting and property damage. At 15, he began using amphetamines and left home to live on the streets. Although his parents made various attempts to bring him home, he kept running away, being attracted to the lifestyle of living day by day, being free and not having to answer to anyone, with no responsibilities. At the time, he resorted to crime to fund his escalating drug use and began getting into more serious trouble for offences, such as break and enters.

19. By age 16, he reported that he incurred stints in juvenile detention, and in 1994, spent most of a year at BoysTown. It is during this time that he asserts that he was subjected to physical and sexual abuse by staff members, the subject of his civil action. He did not apparently disclose that abuse to anyone until quite recently. Since turning 18, he has spent various times in custody, totalling, on his estimate, some ten years of the intervening period. He said that although he tried to build a life in the community, his efforts “wouldn’t work out” and “as he continued using drugs, reoffending and returning to gaol.”

20. In 2001 he used Aboriginal Link-Up to discover that his biological mother was deceased but that he had two maternal half-brothers in the Kempsey area, with whom he later developed relationships. At the time of this offending, he was residing with one of those brothers. He has been in a de facto relationship with a former partner between 2009 and 2012. He said that at this time “He lived on the straight and narrow” although I note that there are offences during that period, according to his criminal history. He said that being absent from drugs, he began a Diploma of Community Services, however his partner fell pregnant, he panicked because he was not ready to be a father and then relapsed into amphetamine use, before the birth of a son in 2012.

21. He reoffended and was returned to custody and remained there until 2019. While in custody, he has not had any contact with his son. After being released in 2019, he lived in Brisbane for a few months and then moved to Tweed Heads to join his mother and lived with her for around a year. He says that his mother “showed me the way I could do it”, supporting him to stay off drugs and attend his appointments and taking him to church. However, approximately two months prior to the index offences, he reported that he had moved to Kempsey to spend time with his brother and that that had led to his relapse and reoffending.

22. He has spent a number of periods of time in custody, both in New South Wales and in Queensland. The most significant period of imprisonment was a penalty imposed in 2013, when he was sentenced to four years with parole release after three years in relation to the commission of a raft of offences, being two counts of burglary and commit indictable offence, having been committed on 24 and 25 July 2012, a further five counts of burglary, commit indictable offence committed on 1, 2, 20, 24 and 27 July 2012, one count of enter dwelling with intent committed on 27 July 2012 and one count of enter premises with intent also committed on 27 July 2012.

23. He has a number of like offences in relation to entering other peoples’ property with the intention of stealing or stealing. Most of his criminal history has occurred in Queensland and although Queensland’s Court Outcomes documents are at all times difficult to follow, his particular Queensland history of offending can reasonably be described as horrendous as to the number of offences and the period of which they occurred, between 1996 and 2020. On many occasions, he was dealt with on a single occasion for what can be regarded as a raft of offences committed within days of each other.

24. His offending in both New South Wales and Queensland reflects a predisposition towards substance abuse and property offending for the majority of his adult life and must disentitle him to any leniency that he may otherwise have received. It also demonstrates that significant caution has to be used when assessing his prospects of rehabilitation and reoffending. I note that while in custody, he has been regarded as being compliant and industrious, working in the Clarence Correctional Centre’s kitchen.

25. The Sentence Assessment Report refers to his criminal history commencing in 1998 in relation to property matters, drug possession, firearm offences, driving matters and financial deception, which resulted in him being subject to a variety of sanctions, including fines, Community Correction Orders, and an absence condition which expired on 14 June 2022, and imprisonment. The current matters are described as being a continuation of his offending pattern. He asserted to Ms Rebecca Bourke that although he had been involved in a police pursuit and agreed he had placed other road users in danger, he did not stop for the police as he wanted to be incarcerated near his nephew, who was located at the Clarence Correctional Centre.

26. He is otherwise in some of the documentation referred to as being institutionalised and desiring to return to custody. I note that it is difficult to accept his statement that he did not stop for the police because he wanted to be incarcerated near his nephew, it does not have the ring of truth, in the sense that all he had to do at any time during the police pursuit was to stop, but he continued to drive at high speed and in dangerous circumstances for 45 minutes before he was stopped by his own incompetent driving.

27. I accept that he has had a prolonged history of illicit substance abuse, particularly in recent times, using methylamphetamine. I note that while in custody, he has been prescribed Buvidal on a monthly basis to help address his drug dependency issues. He also said in relation to the police pursuit that he had “hit rock bottom and wanted to be locked up.” He is able to identify some of the potential impacts on his victims and the wider community and acknowledged the harm and psychological impact his actions may have caused.

28. Considering his past criminal history, particularly in Queensland, he must have been appreciating that for many years, rather than some epiphany of insight occasioned by his arrest on this occasion. I note in relation to his use of prohibited drugs, that he has previously, in 2001, attended the Mirikai residential rehabilitation facility and completed the full nine-month program, which he reported was helpful and enabled him to maintain abstinence for several months after release, while living in a halfway house. However, after leaving the halfway house, he relapsed into using amphetamines at a rate of 0.2 grams per day intravenously, before returning to imprisonment.

29. On his release in 2006, he was in the Goldbridge rehabilitation program for six months, but again reoffended and was returned to custody. Between 2007 and 2009, he participated in the Drug Court Program. While he made efforts to stay off drugs, he had various lapses for which he received sanctions and spent brief periods in custody. He claims to have then been able to maintain abstinence for several years during the de facto relationship I previously referred to, before relapsing into the abuse of amphetamines. He has apparently been on Suboxone for some of the time, although that prescription was ceased when he returned to custody in 2012.

30. He claims to have been abstinent from all prohibited drugs during his incarceration period from 2012 to 2019 and feeling good as a result, but noted that upon his release, he went back onto Suboxone, in order to avoid a relapse to amphetamines or opioids. However, he was of course again taking illicit Lyrica for its euphoric effects thereafter and the interaction of Lyrica and Suboxone resulted in hospitalisation for renal failure. It was on discharge from hospital that he then moved to Tweed Heads to reside with his mother.

31. He is said to show insight into the risk factors of drug use and to have no difficulty remaining abstinent from drug use in gaol, but acknowledging that on release, he is vulnerable to relapse because of mental health problems and institutionalisation. Although to the psychologist, he did not dispute any aspect of the facts, the psychologist being armed with a copy of the facts, but not the Queensland criminal history, although it was not hidden from her by the offender at interview. I note that he does in effect, dispute some of the facts that he appears to otherwise have agreed to in relation to entering the home. At the time of this offending, he was in receipt of a Newstart Centrelink payment.

32. He dropped out of school in Year 8 and had not completed any further education or training, other than brief vocational courses while in custody. He has a very limited employment history. In his early adulthood, he had some brief stints in warehousing, but his drug use interfered with that work and he never lasted more than six months in any position. He has otherwise only had casual work in odd jobs, such as lawnmowing and labouring. Although he reports a history of anxiety, he denied any history of psychosis, self‑harming behaviour or suicidality.

33. As I have previously referred to, he refers to childhood sexual abuse while in the boys’ home. Again, he informed the psychologist of the following:

“Mr Eckersley reported he was intoxicated during the index offences and that he committed them with a specific intention of returning to custody. He said, ‘I was sort of on my last legs’ and ‘the lifestyle was catching up on me’ ‘I didn’t want my mother to see me like that’. He said, ‘I wanted to get locked up’ and saw it as ‘heading back to gaol and being happy again to stop abusing myself, I’d had enough’.”

34. As I have previously referred to, those assertions are difficult to accept in the circumstances where all he had to do at any time was to turn himself into the police station for either of the property offences or to have ceased driving the stolen motor vehicle when he realised that he was being followed by police. I do however accept, having considered his custodial record and other matters, that the offender is at least at a high risk of institutionalisation, if not in fact already institutionalised, and I would find the latter to be the more appropriate description, that is, that he is already institutionalised.

35. He was assessed by Ms Bourke as being a medium risk of reoffending, according to the Level of Service Inventory - Revised. While in my view that is an underestimate of the risk of his reoffending, considering his past history, I will accept it: she is the expert. I note his adoptive mother continues to be very supportive of him and she notes that his behaviour changed significantly from having been a happy, active boy at the age of about 12, which was when she says he commenced to truant from school, to steal, and his offending behaviours began.

36. At 14 he went to BoysTown for a year and according to Ms Bourke, did his Year 10 there, although I note he had previously discontinued during Year 8. She refers to him as not being able to thereafter settle into a life outside of correctional centres. While she is highly supportive of him and at least prepared to assist him for some period of time when he is released, she is cautious about that circumstance, stating:

“Tim requires intensive support when he is released. I will always be in touch and see him. However, without the support of the community and also the support for him to address his dependence on Suboxone, I really feel that he will be set up to fail again.”

37. As I have said, I accept that she is very supportive of him, but she is not unrealistic. Replacement programs such as Methadone and Suboxone assist to quell the urges to consume prohibited drugs but are not in themselves cures, and offenders who fail to get completely off prohibited drugs frequently relapse within a short time of being released, finding themselves back in the similar situation of difficulties with housing, income, employment, social services and broken or poor relationships.

38. I accept that this offender has had a difficult upbringing, at least from the age of 11, and that the factors or principles referred to in Bugmy v The Queen [2013] CLR 571 apply, reducing his moral culpability for the offending and the need for the sentence to reflect general deterrence. In his circumstances, I regard specific deterrence as still being relevant. As to the matters contained on the two separate Form 1s, I will take them into account by giving additional weight to the principles of specific deterrence and retribution in accordance with the well-established authority, Attorney General’s Application No 1 of 2002 [2002] NSWCCA 518.

39. In relation to the offence of break, enter and commit serious indictable offence, larceny, knowing persons present. I note that there is a standard non-parole period provided which, although this was a plea of guilty, remains a relevant guideline to taking into account when sentencing, and I will do so. R v Way [2004] 60 NSWLR 168. In the offender’s evidence on sentence, he confirmed the content, referring to what he had informed the psychologist as being true. I accept that sexual offending against him at a young age is one of those factors which causes significant problems throughout the continuing life, well into adult life, if not for the entire remainder of one’s life.

40. It is frequently demonstrated in matters before this Court where victims come forward decades after the abuse and it is plainly evidenced that it has affected them for the whole of the intervening period and is likely to affect them for the balance of their life, and that is one of the matters I take into account in relation to this offender. He did in his evidence express some remorse and contrition. It was not, however, particularly impressive. When considering how many times this offender has been before the Courts in the past, I will however give him the benefit of finding that it was genuine.

41. I have taken all of those matters into account, including the objective seriousness of the various offences. Indeed, including those which are contained on the Form 1. For the purposes of sentencing, I have regard to s 3A of the Crimes (Sentencing Procedure) Act, 1999. I note in respect of the aggravated break and enter offence and the enter building with intent, each of those offences was aggravated by the s 21A(eb) being committed in the victim’s homes, and in respect of the Suffolks, that they were, in my view, vulnerable victims.

37. It has been submitted by the Crown and is accepted by Mr Naveed on behalf of the offender that the s 5 threshold has clearly been passed, which in each case was an appropriate submission. I have taken into account all of those matters, including the fact that the offender has been in custody during a period of COVID, and I accept that that has made serving a custodial sentence, or even a period of imprisonment on remand, more difficult and arduous than is ordinarily the circumstance, and that that must be taken into account.

38. I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act, having considered all possible terms, that no penalty other than imprisonment is appropriate. I intend to proceed by way of an aggregate sentence and accordingly, I am required to provide an indicative sentence in respect of each of the offences. Taking into account of course the 25% discount that I have referred to in relation to each offence, the indicative sentence in respect of the aggravated break and enter and commit serious indictable offence, larceny knowing persons present, s 112(2) and including the three offences contained on the relevant Form 1 of take and drive conveyance, s 154A(1)(a) and larceny s 117 and enter building with intent to commit an indictable offence, s 114(1)(d).

39. The indicative sentence in respect of those matters is five years with an indicative non-parole period of three years, three months.

40. In respect of the offence of police pursuit, not stop, drive dangerously first offence s 51B(1), also taking into account the Form 1 offence of drive vehicle under the influence, the indicative sentence is two years and three months. It is not necessary to provide an indicative non-parole period in relation to that offence as there is no standard non-parole period and it is not required in those circumstances.

41. I have then considered the question of totality and determined a sentence. The sentence will be one of six years’ imprisonment with a non‑parole period of three years, ten months and a balance of term of two years two months. The sentence will commence from the date of his arrest, 28 April 2021. He will first become eligible for parole on 28 February 25. The balance of term, or potential parole period, will expire on 28 April 2027. It will be clear that I have varied the statutory relationship between the non‑parole period and the balance of term in the offender’s favour.

42. I accept that he needs a more significant period of time on parole, because of the risk of ongoing institutionalisation, assistance with prohibited drugs and supervision will hopefully allow him to commence a life in the community, not marred by continuing crime or criminal offending. I have reduced the non-parole period to slightly less than 65% of the overall term as a result.

Right, now, is there any particular matter that anyone would like to suggest that I have omitted or am in error in respect of, whether it be the facts or anything else?

CORNETT: Not from the Crown your Honour.

HIS HONOUR: Mr Naveed? All right, I can see you’re shaking your head to indicate no, but you’re not actually coming over on audio at the moment. All right ,thank you, that completes the matter.

48. Mr Eckersley, I will repeat for you, the earliest time at which, on the basis of the sentence that I have just imposed, you could be released is 28 February 2025. You would then be subject to parole for a further period of two years, two months. As you would appreciate, you will not necessarily be released on 28 February 2025. It is a matter for the authorities to determine. and they will basically act in relation to this on the way that you have performed while in custody. It is important while in custody that you take the advantage of any courses or treatment that you can receive for your problems, whether they be psychological or drugs.

49. Of course, I note you are regarded as a good prisoner in effect. You should continue to ensure that you are so regarded, because that may mean that you are released at the earliest possible time, 28 February 2025, but no one can do it for you. You have been through several drug programs in the past and one way or another, you have either failed during the course of them, or you have failed after being released. You are now 43 years of age. You do not have the excuse of youth and stupidity.

50. It is time to take stock of your life. You have a highly supportive mother. I have no doubt she will continue to support you. It would seem that reassociating with your biological stepbrothers may not be a good option for you, but certainly when you are released, do return if she is then available, to live with your mother, although it may not be forever. All I can do, Mr Eckersley, is stress to you the importance of making an effort on your own behalf, because no one can do it for you.

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Decision last updated: 29 June 2023