R v Ejupi, Avzi

[2010] NSWDC 24

CITATION:	R v Ejupi, Avzi [2010] NSWDC 24
JUDGMENT DATE:	18 February 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Break, enter and steal (2009/00037718): Sentence to a non-parole period of 18 months to date from the 18th February 2010 and expiring on the 17th August 2011. Balance of term of 18 months to expire on the 17th February 2013. I take into account the matter on the Form 1 of Take and drive conveyance without consent of owner. 2009/00044694- Shoplifting value <= $2000 (sequence 1): Appeal dismissed. Conviction confirmed. 3 months imprisonment to date from the 4th May 2009 and expiring on the 3rd August 2009 imposed by the learned magistrate confirmed. Use etc offensive weapon to prevent lawful detention (sequence 2): Appeal dismissed. Conviction confirmed. 6 months imprisonment to date from the 3rd June 2009 and expiring on the 2nd December 2009 imposed by the learned magistrate confirmed. Use etc offensive weapon to prevent lawful detention (sequence 3): Appeal upheld in part. Conviction confirmed. 2 years imprisonment with a non-parole period of 12 months imposed by the learned magistrate quashed in lieu sentence to a non-parole period of 8 months to date from the 4th August 2009 and expiring on the 3rd April 2010. Balance of term of 10 months expiring on the 3rd February 2011. Assault (sequence 4): Appeal upheld in part. Conviction confirmed. S.9 bond for 4 years imposed by the learned magistrate quashed in lieu s.9 bond for 3 years to date from the 18th February 2010. Assault police officer (sequence 5): Appeal upheld in part. Conviction confirmed. S.9 bond for 4 years imposed by the learned magistrate quashed in lieu s.9 bond for 3 years to date from the 18th February 2010. Resist officer in execution of duty (sequence 6): Appeal upheld in part. Conviction confirmed. S.9 bond for 4 years imposed by the learned magistrate quashed in lieu s.9 bond for 3 years to date from the 18th February 2010. Intentionally recklessly destroy/damage property (sequence 7): Appeal upheld in part. Conviction confirmed. S.9 bond for 4 years imposed by the learned magistrate quashed in lieu s.9 bond for 3 years to date from the 18th February 2010. Unlawful entry on enclosed lands (sequence 8): Appeal dismissed. S.10A imposed by the learned magistrate confirmed. I find special circumstances. I refer the offender to the compulsory Drug Court for inclusion into the Compulsory Drug Treatment Centre.
CATCHWORDS:	Criminal Law - Sentence - Break, Enter and Steal - Value of goods stolen $2000 aprox. - breach of parole - history of drug and alcohol abuse. - Criminal Law - Appeal from Local Court - Shoplifting - Use Weapon to prevent lawful apprehension.
PARTIES:	Regina Avzi Ejupi Director of Public Prosecution
FILE NUMBER(S):	2009/00037718; 2009/00044694
COUNSEL:	Crown Prosecutor: P Lynch Defence: S Hall

JUDGMENT
1. Yesterday, 8 December, at about morning tea I was allocated a trial of Avzi Ejupi. Mr Ejupi was charged before a jury panel that on or about 24 July 2008 at Kingsgrove he broke and entered a dwelling house in Lundy Avenue Kingsgrove and committed a serious indictable offence, namely, stealing. The items stolen included a watch and something in the order of fifteen hundred dollars in cash. It was alleged that that break and enter occurred in circumstances of aggravation, namely, that he knew there was a person or persons inside the dwelling.

2. To that charge he pleaded not guilty. From the panel, twelve jurors were selected. The empanelment and selection of jurors occurred after lunch and the Crown opened. The matter was then adjourned before any witnesses were called.

3. This morning I was advised that there may be a change of that situation, and indeed very shortly after commencement time, Mr Ejupi sought to be re-arraigned. He pleaded not guilty to the indicted charge but pleaded to the statutory alternate charge of breaking and entering and committing a serious indictable offence, namely, stealing.

4. Today he is to be held accountable for his criminal conduct. The task of a sentencing judge is to determine the appropriate sentencing disposition for the offence to which the offender now has pleaded guilty. That involves not just an assessment of the or the accounting of the facts of the offence, but some analysis of what is called objective criminality of it with a view to determining what would be an appropriate [sentencing] outcome.

5. The facts which are not contested and have been handed up are these: that on Thursday 24 July 2008 the residents of the Lundy Avenue premises returned home from an overseas holiday at about 9:30pm. The doors and windows of the premises were secured before Mrs Sui, one of the residents, went to bed. The following morning twelve hours or so later she noticed clothing disturbed in her bedroom. As she walked into the hallway she saw that the front glass door was open, in the lounge room she saw their luggage had been opened and clothes lying on the floor and one of the kitchen knives was located on the floor beside the luggage. One can only sense that it was used to prize open the luggage.

6. Ms Sui continued to walk towards the rear of the premises and noticed the rear glass door open and the window in the third bedroom opened about forty centimetres. That window is normally closed, locked and secured.

7. It is a common practice for those who are in the course of breaking and entering the premises to open doors so that they have quick exit from the premises in the event of being discovered.

8. Stolen from the property and still unrecovered was A$1,600, a lady’s wrist watch worth HK$350 and car keys for the family Hyundai Excel.

9. The entry point was found to be through a third bedroom window on the northern side of the premises. A flyscreen which had been attached to the window was found lying against the premises. The window had been forced open and entry gained. Clothing was located on the roof of the premises which does not belong to the residents. A glass bottle of Jim Beam and Cola was located beneath the third bedroom window on a table.

10. The victims of the break and enter have limited English and in any event they have an adult son who they contacted who attended the premises on Saturday 26 July. Police were shortly after contacted and attended that location at about 2pm. A crime scene officer attended examining the premises for fingerprints and seeking DNA samples. In the course of that the bottle of Jim Beam and Cola was examined and DNA material matching that of the offender was found on that bottle.

11. About 2pm on Monday 6 April 2009, Campsie police went to the Mid North Coast Correctional Centre. The offender was there completing a custodial sentence. He was due for release in respect of that sentence on 16 April 2009. He was electronically interviewed where he made no admissions and, in fact, I have seen the interview for reasons not related to the plea and [he] denied memory of any break and enter, although in fairness was unable to explain the presence of his DNA and did not seek to explain the presence of his DNA on the bottle.

12. From those facts the objective criminality is to be assessed. That is an essential step in assessing the seriousness of the criminal behaviour of this offender. Objective criminality is assessed by comparing the criminality exhibited in this case with criminality of offences of a similar kind not surprisingly objective criminality has an important impact in overall sentencing.

13. The first thing to understand is the criminality associated with break and enters, that is to say, why are break enter and stealing offences regarded as anti-social conduct? The criminal justice system places great store upon the sanctity of a person’s home, for example, police and other government authorities must seek a court’s permission before they enter the home of even the most humble person.

14. If anybody cares to look at the relevant sections which create this offence and others concerned with breaking and entering it would yield the inner escapable fact that the sections put a significant tariff for the breaking and entering as distinct from the other crime which may well be associated with it. For instance, stealing carries a maximum penalty on indictment of five years but if you put a little bit of breaking and entering with it the maximum penalty goes up to fourteen years nearly three times as much.

15. So why is then breaking and entering and stealing criminal? Firstly, it is a crime against property, that is, it is a trespass and it is a crime against what we call chattels, that is, possessions. The loss of material possessions is only part and often the minor part of a reason why domestic burglary is a serious offence. Most people legitimately attach importance to the privacy and security of their homes. That an intruder should break and enter for his own dishonest purposes leaves a victim with a sense of violation and a sense of insecurity within his or her home. Even where the victim is unaware at the time that a burglar has been in the house it is nonetheless a frightening experience to learn that the burglary has taken place.

16. Items taken, and this case such as a watch, can often have sentimental value. Frequently, things such as a watch, jewellery and other valuable possessions are given as gifts or inherited as mementoes from other family members and the sentimental value that attaches to them is very often, the real value, of the item.

17. In this particular case there does not appear to have been, if I have understood the evidence correctly, any actual damage to the property although there was a window forced open, it is not made clear whether the lock or window were in any way damaged. So far as we can tell the overall items taken were in value less than $2,000 meaning in one sense that this is a matter that had it been charged in this way may well have been before the Local Court as distinct from this Court.

18. The offender has two prior court appearances in relation to break and enters, one in 1994 and one in 1999, both of which were dealt with in Brisbane.

Am I correct in saying he was not on conditional liberty in any way, shape or form in July 2008?

HALL: No, your Honour, I think he was on parole.

HIS HONOUR: He was on parole?

HALL: Yes, if your Honour has regard to the record p 4 there is a shop lifting that was dealt with at Central Local Court on 7 August 2007, does your Honour have that? Where he received a period of imprisonment of nine months commencing 1 February 2008 with a non-parole period of three months which would place him on parole at the time.

HIS HONOUR:
19. The criminality of this offence must be aggravated by virtue of the fact that he was on parole at the time of the offending. Conditional liberty such as parole, bail and bonds are given to offenders with a view to mitigating punishment that they might otherwise have received. To use the example obvious here, he was given twelve months imprisonment and the Magistrate decided that he should have three months of that in the community to mitigate the twelve months. No court officer would do that if they honestly believed that during that three month period further offences would be committed. It is regarded by the Court as a breach of some implicit understanding between the Court on the one hand and the offender on the other that during the mitigation on the penalty he will not misbehave. It adds to the criminality of this offence.

20. The circumstances in which this offence occurred cannot be assessed in the sense that I am unable to tell from the evidence before me whether there was any planning. The offender claims inebriation, nobody can dispute that, but the inebriation cannot have been so great that he was uncoordinated. He was able to be inside, he was able to move around inside without disturbing occupants, he was able to find items that were of value and he was able to have sufficient cognisance to open two doors to make good his escape if he needed to.

21. The bottle of Cola on the outside table was a bit of a conundrum for me. [Particularly] the circumstances in which it arrived there. I can only assume that it was brought there by him and left there by him having burgled the premises. Otherwise it makes no sense at all to me why he would take it out of the house and leave it there and not, for example, take it with him. I have just assumed that he has brought it. In which case there may be some truth in his account that he was inebriated. As I say the evidence is not very clear for me to determine one way or the other.

22. Given that there is a criminal record and indeed a criminal record that has seen him imprisoned several times, although it seems to me twelve months was the longest sentence with a nine month non-parole that he has received thus far, his opportunity for leniency from this Court is much diminished. In the light of the objective circumstances it seems to me that imprisonment would be an appropriate outcome for this offence, but for reasons which I will explain in a moment it may be that in the interest of the community that some other option is pursued.

23. Mr Ejupi presents as a thirty-six year old single man. Initially, arriving from Albania to Queensland at a very young age and in circumstances where he did not speak English. He attended school in Queensland. By the time he had started school he had enough English to understand. He has a family comprised of three sisters and a brother; his two parents are still alive. Much more than that I do not know. How the family interacted, I do not know, how close they are and how supportive they are I do not know. He has been in a relationship for two years. He said that he thought he had been with his partner for twelve months of the two years. It turns out that it is more likely he has been with his partner less than nine months of those two years. The rest of the time he has been in and out of gaol, which I will come to in a minute.

24. He gives a history of drug abuse and if his account is correct of the circumstances of the break and enter there is also, it would seem to me, quite likely an issue of alcohol abuse. It says a significant amount about a burglar that he is drinking on the job.

25. He may well have some skills in building or carpentry and motor mechanics. He says that he has worked with his dad, who is a licensed builder, and he had done some course in motor mechanics. He has worked at petrol stations. There was a time it would seem when he had a reasonably good work ethic although that time was some five years in the past.

26. His partner he says is not a drug abuser, in which case his prospects for coming off drugs is significantly better than if his partner was a drug abuser. He appears to me to possess fairly little or limited insight into the nature of his offending. Although I ought to record that he did apologise to the victims who are in Court and he entered a plea of guilty albeit a late plea of guilty. In the course of questioning he indicated that one of the reasons why he is back and forth in prison is because of his drug abuse and he said that he would do whatever it takes to resolve his drug problems.

27. A sentencing judge is concerned primarily when sentencing about the safety of the community and the ongoing safety of the community. That has attached to it two concepts. I can guarantee the safety of the community for twelve or fifteen months by placing this man in custody or I can work for the long term safety of the community by seeing if he is able to accept rehabilitation and not offend in the future.

28. His custodial record shows at least so far as New South Wales is concerned that he went into custody presumably in response of a charge on 16 September 2006 and was given bail the following day, 17 September. Within two months almost exactly he was sent to prison from Penrith Court on 18 November. He was released on 25 November and four months later in March he was back in custody where he stayed for another two months, released on 17 May 2007 and then was back in custody within a month and a week on 26 June 2007. He stayed in custody for a fortnight by the look of it and was released on a good behaviour bond only to find himself back in custody in less than a month on 1 August. From 4 July to 1 August he was out. On 1 August he remained in custody until 30 April 2008. He spent, I think, his longest period free six months or five and a half months perhaps until 17 October 2008. He was back in custody, released on 16 April and back in custody within three weeks on 4 May.

29. On my calculation, in the last three years he spent less than nine months but say about nine months free. Those returns to custody seem to me to be about drug abuse and offending as a consequence of drug abuse. There are a number of full time rehabilitation centres that specialise in giving persons opportunities to rehabilitate. Some inmates regard those places as more severe than custody, the official policy of the Court is to regard those places as two days in them worth one day of full time custody so it is called quasi custody but at least it is from the community’s point of view productive of rehabilitation assuming the inductee to the place is willing to be rehabilitated. My experience through, I think 130 cases now is that many people offered an opportunity to rehabilitate take it, some do not. Those that do not come back before me and are sentenced to full time custody. Those that do would still in a case such as this, be sentenced to a term of imprisonment that term would be suspended. That way one guarantees for a longer period of time the protection of the community because if there is any offending in that suspended sentence period the Court has little option but to re-sentence to the custody that was suspended. I am assuming that Ms Hall has explained all that to the offender and she says she has and he says he is willing to undertake that. It seems to me consistent with my duty to be careful about the protection of the public, this is another appropriate course I can take.

30. Clearly, there are two appropriate courses for me. One is to impose a sentence of imprisonment that would be about fifteen months inside and although from that fifteen months time referrable solely to this would have to be deducted and a period of probably nine months on parole. As against that there is the option of twelve months rehabilitating and something in the order of a twelve or fifteen month suspended sentence giving credit for the time that has been spent working on rehabilitation.

31. It is the second course that I offered to the offender, he indicates he is willing to take it. I have set out my reasons for determining that that is the course I am going to take. The only thing that now remains is for an application to be made to one of the rehabilitation centres, the matter to be re-listed at short notice if necessary.

HIS HONOUR: Or do you want me to put it one day next week?

HALL: I think that is the preferable way of dealing with it so at least I can indicate to your Honour what progress, if any, is being made.

LYNCH: Your Honour, I can now indicate there is a Form 1 been prepared and signed by myself in relation to the outstanding matter.

LYNCH: I hand up the Form 1, your Honour.

HIS HONOUR:
32. When dealing with the break and enter offence I am asked to take into account a matter on Form 1, the offence being that between 3 September and 6 September 2008 he took and drove a motor vehicle without the consent of Kanisara Bunplume(?) the owner of the conveyance namely a silver Daihatsu Sirion. That matter is before the Burwood Local Court for him to appear there on 17 December next. The circumstances of that offence are that by some unknown means he was able to enter that Daihatsu Sirion which was in Ward Avenue Potts Point outside the owner’s premises. It was observed in Belmore Road Riverwood at 9:30 on Saturday 6 September overtaking other vehicles on the incorrect side of the road. They signalled to the offender to stop by use of lights and sirens.

33. He began what I might call as a high speed car chase in a 50 kilometre zone travelling at speeds of approximately 100 kilometres an hour. He travelled through a red traffic light at that speed, he came to a sudden stop at a park in Hannans Road Nanowie Street and bolted.

34. Police followed him on foot over a number of fences but ultimately lost sight of him. Further police attended and they lost sight of him. The CD player in the vehicle had been removed and placed on the rear seat so at least it was not lost. A black T-shirt with holes cut in it to form a balaclava, seven capped syringes, a toothbrush, toothpaste, two CDs and some black ear-bud headphones were seized and sent for forensic examination. A small amount of blood was found on the anterior side of the driver’s door and a DNA profile was uncovered matching that of the offender. He denied involvement in that and was issued with a court attendance notice. That, of course, will as I say add to the criminality of the offence that I am dealing with.
ADJOURNED TO THURSDAY 18 FEBRUARY 2010

HEARING RESUMED
HIS HONOUR:
35. I have before me two matters, one is a sentence matter which first came before me I think on 9 December last year and the second is a severity appeal matter which has come before me as a consequence of the exercise of a sentencing discretion by a magistrate on 2 February 2010.

36. The appellant appeals against the severity of the sentences imposed on that date for shoplifting, using an offensive weapon to prevent his lawful detention; using an offensive weapon with intent to commit a serious indictable offence, namely detain someone for an advantage; common assault; assaulting a police officer in the execution of duty; resisting an officer in the execution of duty; destroy or damage property and enter inclosed land without lawful excuse.

37. As I say the learned magistrate sentenced him in respect of the first item to a term of imprisonment of three months to date from 4 May 2009. In respect of the next matter a sentence of six months to date from 4 August 2009. Both of those were fixed terms. In respect of the third matter, two years’ gaol to date from 4 February with a non-parole period of twelve months which will expire on 4 February 2010. That is to say each of the sentences imposed by his Honour were accumulative and a s 9 bond to be of good behaviour of three years to date from 4 May 2009. It seems to me, with respect to his Honour, that although all of the offences occurred at the same time, in effect he has imposed twenty months’ imprisonment for that criminality. What I propose to do is to make some accumulation so that all of those sentences expire today.

38. Because the course of action is agreed between the parties and it seems to me to be the most sensible approach that we can take to the appellant and offender’s situation, I am not going to review in detail the facts of the matter. I confirm the sentence, for the shoplifting, of three months to date from 4 May 2009 and to expire on 3 August 2009. I confirm the sentence of six months’ gaol but it will date from 4 June 2009 and will expire on 3 December 2009. In respect of the next matter, I vary the sentence to one of eighteen months’ imprisonment, with about an eight month non-parole period, to date from 4 August 2009 and to expire on 3 April 2009. The non-parole period of that last sentence was to expire on 3 April and the balance of term will expire on 3 October 2010. The non-parole period that his Honour set of four years is varied for the item 4 and it becomes a s 9 bond to be of good behaviour for a period of three years from today.

39. On 9 December I published reasons on sentence which brought me to a position where I was indicating to the parties that I would set a sentence of fifteen months’ non-parole period. In the light of the course that I intend to take, it is appropriate that I set a sentence of eighteen months to date from today, for reasons that I gave on 9 December.

40. In respect of the break, enter and steal count, I set a sentence of three years to date from today with a non-parole period of eighteen months, to date from today, 18 February and to expire on 17 August 2011. I set a balance of term of eighteen months to expire on 17 February 2013.

41. In respect of the take and drive conveyance without consent of owner, I set a fixed term--

LYNCH: Your Honour, that was on a Form 1.

HIS HONOUR: I take it into account. Thank you, Mr Crown.

I find special circumstances for reasons of totality of the whole sentence. And I refer the matter to the compulsory drug treatment program and refer the papers to the Registrar of the Drug Court.

Is there any other order I need to make?

LYNCH: No, your Honour.