R v Fell

[2023] NSWDC 353

District Court

New South Wales

Medium Neutral Citation:

R v Fell [2023] NSWDC 353

Hearing dates:

01 September 2023

Date of orders:

01 September 2023

Decision date:

01 September 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1 Graham Ronald Fell is convicted.

2 The appropriate aggregate term of imprisonment is 3 years, which will be reduced by 7 months to take into account the offender’s pre-sentence custody.

3 I impose an aggregate term of imprisonment of 2 years and 5 months.

4 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (1 September 2023) and expire on 31 January 2026.

Catchwords:

CRIME — Property offences — Break, enter and commit serious indictable offence

CRIME — Fraud — Dishonestly obtain property by deception

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Mandranis v R [2021] NSWCCA 97

R v Olbrich (1999) 199 CLR 270

R v Zamagias [2002] NSWCA 17

Category:

Sentence

Parties:

Rex (Crown)
Graham Ronald Fell (Offender)

Representation:

Counsel:

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Aboriginal Legal Service (Offender)

File Number(s):

2022/249626

Publication restriction:

None

JUDGMENT

Introduction

1. Graham Fell (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence H89864714	Offence	Maximum Penalty and SNPP
1	Aggravated break and enter and commit serious indictable offence (larceny), contrary to s 112(2) Crimes Act 1900	20 years imprisonment; 5 years SNPP
26	Dishonestly obtain property by deception, contrary to s 192E(1)(a), Crimes Act 1900	10 years imprisonment; no SNPP

Approach to Sentencing

2. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

3. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

4. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Facts

5. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

6. The victim, Yohei Okawa, resided at a three-storey boarding house in Surry Hills.

7. At about 7:30pm on 20 August 2022, he returned home. He closed his door but left it unlocked. He went to sleep at around 2:00am.

8. CCTV footage recorded the offender walking around the outside of the boarding house, before gaining entry via the front door at 5:20am on 21 August 2022.

9. The offender entered the victim’s room on the first floor by opening the door. The victim was asleep in his bed, which was raised off the ground and required a ladder to get into.

10. The offender took the victim’s property from the room in two bags belonging to the victim.

11. The offender spent approximately 1 hour and 20 minutes in the boarding house, leaving through the front door at about 6:38am.

12. The victim awoke at about 11:30am and found his unit in a messy condition and noted that his belongings were missing.

13. The offender took a number of items, the total value of which was about $6500. He also took an ANZ bank card, a Sumitomo Mitsui bank card, both of which belonged to the victim, the victim’s Japanese passport and driver’s licence.

14. After notifying the building manager, the victim realised his wallet was missing. He checked his transaction histories for the bank cards and identified unauthorised transactions from the morning of 21 August 2022. The victim called police and they attended the scene.

15. About 30 minutes after leaving the boarding house, the offender went to the 7-Eleven convenience store on Elizabeth Street in Surry Hills. He used the victim’s bank cards to purchase tobacco products costing about $120.

16. The offender then attended Devonshire Street Newsagency in Surry Hills and used the victim’s bank cards to purchase tobacco products and lottery tickets costing about $160.

17. The offender returned to the Elizabeth Street 7-Eleven and purchased tobacco products costing about $290.

18. The offender then returned to the Devonshire Street News Agency and purchased $25 worth of lottery tickets.

19. The offender then returned to 7-Eleven and purchased tobacco products costing about $180.

20. The total value of the items purchased was $845.98.

21. The offender returned to his unit at approximately 9:05am. An unknown person used the victim’s Japanese bank card to make a further seven purchases at the Belvoir Street Convenience Store, TSG Devonshire Street, Devonshire Street Newsagency and Elizabeth Street 7-Eleven. The total value of the seven purchases was $328.53.

22. Police executed a search warrant at the offender’s residence on 22 August 2022. Items of the victim’s property were seized during the search.

23. The offender was arrested and taken to Surry Hills Police Station. The victim’s ANZ bank card, Costo card and English Language Company card were seized from the offender, as was a locket and $30 in cash. The Sumitomo Mitsui card was not recovered.

24. The offender participated in an electronically recorded interview on 22 August 2022. He made full admissions to the police. He expressed remorse and apologised to the victim.

The Offender’s Case on Sentence

25. The offender tendered the following documents:

1. psychological report of Andrew Wong dated 26 July 2023;

2. Justice Health Medical records.

26. The Court also received an affidavit from the offender dated 17 March 2023. The offender was also called to give evidence.

27. The following is a precis of the evidence relied on by the offender.

28. The offender was born in 1964. He was raised on a dairy farm in Menangle, where he lived with his mother, stepfather and two younger half-siblings. The offender met his biological father as an adult, but he has since died. His biological mother and father are both Aboriginal. The offender’s stepfather forbade the offender from accepting or discussing his Aboriginality and as a result he felt shame about his Aboriginality. The offender did not learn about his Aboriginal heritage and culture until later in his life, although he reported that he still felt disconnected from it. The psychologist opined that this significantly lowered his identity development, affecting his self-esteem, sense of community and belonging, and increased his risk of antisocial behaviour.

29. His home environment was impoverished and there were limited resources. His parents both worked long hours and had minimal time for the children. The offender reported that he cared for his half-siblings.

30. The offender had a close relationship with his mother, and they remain close to this day.

31. His stepfather consumed alcohol to excess and was violent toward the offender and his mother. The offender lived in constant fear at home and had to protect his mother on multiple occasions. He left home at age 14 to avoid further physical abuse by his stepfather.

32. The offender left school at age 14 and he went to work on a dairy farm for 18 months. He left this job after falling into a milk vat and severely burning his leg on hot water and acid. He was hospitalised for three months after this incident and required skin grafts to repair the skin on his leg.

33. He has worked at several dairy farms and in labouring roles, although he has been reliant on Centrelink payments from the age of 16 to the current date. The offender started drinking in his early adolescence. He reported currently drinking around four drinks twice or three times per week. He denied drinking to excess.

34. He started smoking cannabis at age 12 and his use became daily the time he was 14. He reported smoking 15 grams per week as at the date of the psychological report. He started using amphetamines approximately twice per week at age 15. Around 20 years ago, the offender started using methamphetamine. He reported injecting 3.5 grams of methamphetamine every two or three days. In his twenties, the offender used 0.5 grams of heroin intravenously on an almost daily basis. He has been reliant on opioid replacement therapy for approximately ten years. He reported completing drug rehabilitation in the past, although he could not remember the dates or any further details. He told the psychologist that he used drugs as a “Band-Aid” solution, including to manage nightmares and other reminders of his experiences of family violence and sexual abuse. He has never accessed psychological intervention other than that ordered by a court.

35. The offender was sexually abused twice while in juvenile detention when he was 16. His substance use significantly escalated after his release from detention at this time.

36. The offender has been homeless for extended periods of his life, but after his release from custody in 2010, he obtained a public housing unit in Surry Hills. He has been in this unit since then, with the lease set to end in 2027.

37. The offender reported that he does not have many close friends and feels socially isolated, but that he does associate with other drug users.

38. He has had several intimate partners, the longest relationship lasting for 12 years. He reported that this relationship ended because of substance use issues. He has three daughters and a son with this ex-partner. He has four grandchildren. He expressed to the psychologist that he was proud of his children, who do not use drugs and lead pro-social lives. He remains in contact with them.

39. The offender’s current relationship has lasted eight years, but he and his partner only see each other a few times a year.

40. The offender reported being intoxicated with alcohol, ice and heroin at the time of offending, and that he thought the victim’s boarding house was an empty shop. He told the psychologist that he did not need to commit the offences.

41. He expressed remorse to the psychologist and apologised to the victim. In his evidence, the offender said that he was sorry for and ashamed of his actions. He demonstrated insight into the impacts on the victim.

42. He expressed a desire to maintain a crime-free lifestyle and to rekindle his relationships with his children. He told the psychologist that he had saved some money for the first time in his life.

43. The offender has had a several melanomas which have been removed. He has also had radiation treatment for this. He also has epilepsy and asthma. His Justice Health records indicate that he has not had a seizure in the past 12 months. His last asthma attack was 19 years ago.

44. The psychologist found that the offender meets diagnostic criteria for Complex Posttraumatic Stress Disorder, severe Stimulant Use Disorder, severe Opioid Use Disorder and Alcohol Use Disorder. Further, the psychologist opined that there is a causal nexus between the offender’s mental health, drug abuse and offending, in that polysubstance abuse, which he has used to self-medicate his mental condition, reduced his executive functioning abilities and contributed to his offending.

45. Since his release on bail the offender has engaged in weekly drug counselling at the Langton Clinic. He is also receiving treatment for his melanoma, which he expects will have to be surgically removed in the near future.

46. He is currently living in Department of Housing accommodation in Surry Hills. He has been at that address for some time. This is the longest period that he has ever had stable accommodation. He would lose that accommodation if he was incarcerated for more than six months.

47. The offender expressed a willingness to pursue the treatment plan outlined by Mr Wong in his report.

Consideration

Objective Seriousness

48. The break and enter offence involved little planning and was opportunistic. Entry was gained to the victim’s room through a closed but unlocked door. No damage was occasioned to the premises. The circumstance of aggravation relied on by the prosecution was that the victim was asleep inside the room during the offence. There was no interaction with the victim. The serious indictable offence relied on by the prosecution was larceny. The property stolen was valued at about $6,500 but I accept that some of the items would have had significant personal value to the victim. Not all of the stolen property was recovered. The offence was committed for financial gain.

49. The dishonestly obtain property offence involved little planning but the use of the stolen bank cards was deliberate conduct. The value of the property obtained was relatively modest at about $1,200. The offence was committed for financial gain.

50. The offender had a deprived upbringing marred by family violence, transience, trauma and drug use. His moral culpability for the offences is significantly reduced.

51. I have taken into account the maximum penalty for the offences.

Deterrence

52. General deterrence is significant to the offences before the Court. The penalty imposed must signal to others contemplating similar crimes that they will be met with serious punishment.

53. General deterrence can be afforded less weight when the offender suffers from a mental condition, because the person is not an appropriate person to be made an example of. I am satisfied that there is a causal nexus between the offender’s mental condition and the offences and that his mental condition reduces his moral culpability and mitigates the sentence to be imposed.

54. Specific deterrence is very significant in this matter. The offender has a long criminal history for a variety of offences, including many dishonesty offences. The punishments imposed on him in the past have done little to stop him reoffending. The penalty imposed on him at this time must convey to him that if he continues to offend that he will receive condign punishment. I note that the offender has committed and been dealt with for a series of minor offences since his release on bail.

Aggravating factors

55. The offender has a significant criminal record: s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999.

56. The break and enter offence was committed in the home of the victim: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

57. The dishonestly obtain property offence involved a series of criminal acts: s 21A(2)(m) Crimes (Sentencing Procedure) Act 1999.

Mitigating factors

58. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender expressed remorse to Mr Wong and to the Court. He has accepted responsibility for his actions and I accept that he is genuinely contrite. His plea also indicates remorse.

59. The offender made full admissions to the Police when he was interviewed. He entered an early plea of guilty and has facilitated the course of justice.

60. There have been positive developments in the offender’s life that indicate he has some prospects of rehabilitation. He has stable accommodation for the first time in his life and he has positively engaged with rehabilitation and medical treatment since his release on bail. The aggravated break and enter offence is the most serious offence he has committed since about 2004. He has not served a sentence of imprisonment since 2009. He is reaching an age and state of health where he is likely to curb his offending.

61. The offender has served a period of pre-sentence custody of 7 months from 22 August 2022 to 21 March 2023 in relation to these offences.

62. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that those restrictions together with the offender’s mental condition and medical conditions made his time in custody more onerous.

63. I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate

Penalty

64. Graham Ronald Fell is convicted.

65. I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

• Sequence 1 – 2 years and 6 months;

• Sequence 26 – 15 months.

66. The appropriate aggregate term of imprisonment is 3 years, which will be reduced by 7 months to take into account the offender’s pre-sentence custody.

67. I impose an aggregate term of imprisonment of 2 years and 5 months.

68. I have had regard to s 66 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that it is appropriate to order that the sentence be served by way of an Intensive Corrections Order (ICO), for the following reasons.

69. This is a case in which community safety is best achieved by the rehabilitation of the offender by requiring him to undertake intensive treatment of his mental condition and drug addiction under supervision in the community: R v Zamagias [2002] NSWCA 17 at [32] (Howie J). He has made some progress towards rehabilitation. If he was sent back to prison, I am satisfied that he would lose the progress that he has made. Out of the two options of sending him back to prison or imposing an ICO, I am satisfied that the protection of the community will be best achieved by the offender serving the sentence in the community by way of an ICO: Mandranis v R [2021] NSWCCA 97 at [51].

70. The severity of the offender’s mental condition and its direct causal relationship with the offending conduct, means that general deterrence, retribution and denunciation can be given less weight.

71. An order that the sentence be served by an ICO will make the offender accountable for his actions. An ICO is a sentence of imprisonment that will significantly impact on the offender’s freedom and will reflect the seriousness of the offending conduct and the harm done to the victims and the community.

72. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (1 September 2023) and expire on 31 January 2026.

73. The offender must report to the City Community Corrections Office on or before 4pm on 8 September 2023.

74. The standard conditions of the order apply:

1. the offender must not commit any offence; and

2. the offender must submit to supervision by a Community Corrections Officer.

75. The following additional conditions apply:

1. the offender must abstain from taking all restricted or prohibited drugs, except those prescribed by a medical practitioner and submit to random drug testing as reasonably required by Community Corrections;

2. the offender must receive treatment for his mental health as reasonably directed by Community Corrections including but not limited to referral to a psychologist for counselling, referral for an assessment of his cognitive functioning and referral to a person to assist him to undertake an NDIS assessment; and

3. the offender must receive treatment for drug rehabilitation as reasonably directed by Community Corrections.

76. If the offender fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or a revocation of this order. If the order is revoked, the offender may be required to serve all or some of the period of the sentence in full time custody.

77. The offender must attend the Registry to confirm his residential address so that a copy of the order can be posted to him.

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Decision last updated: 04 September 2023