R v Foster

[2024] NSWDC 2

District Court

New South Wales

Medium Neutral Citation:

R v Foster [2024] NSWDC 2

Hearing dates:

23 January 2024

Decision date:

25 January 2024

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

See para [56] of these reasons

Catchwords:

CRIME – Two counts of aggravated enter dwelling and steal motor vehicle – Significant criminal history – Drug use – Addiction – Accumulation – Totality – Special Circumstances

Legislation Cited:

Crimes Act 1900, ss 111(2), 154F

Crimes (Sentencing Procedure) Act 1999, s25D(2)

Drug Misuse and Trafficking Act 1985, s 10(1)

Cases Cited:

Cahyadi v R [2007] NSWCCA 1

Callaghanv R [2006] NSWCCA 58

Morrison v R [2022] NSWCCA 158

R v Fidow [2004] NSWCCA 172

R v Grover; Grover v R [2013] NSWCCA 149.

R v Lunhan [2016] NSWCCA 287

R v Primmer [2020] NSWCCA 50

R v Lunhan [2016] NSWCCA 287

Category:

Sentence

Parties:

Rex
Matthew Foster

Representation:

Counsel:

R Nezval (Crown)
D Pace (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
KK Lawyers (Offender)

File Number(s):

2023/19796

Publication restriction:

None

JUDGMENT

The Events

1. HIS HONOUR: On the evening of 7 January and early morning of 8 January 2023, on two occasions within hours of each other, the Offender, Matthew Foster, was involved in breaking into the same home while the owners were asleep and stole a different Mercedes Benz vehicle on each occasion. The first event he conducted on his own, the second with his co-accused, Mr William Rogers, whose sentence I will deal with immediately following. The Offender is an accessory before the fact in relation to the second event, because he waited in the car outside whilst Mr Rogers took the second car from the garage.

The charges

2. The Offender is to be sentenced for the following offences:

1. Aggravated enter dwelling with intent knowing people there, entering a dwelling house with intent to steal car keys and other items while there were persons present, contrary to s 111(2) Crimes Act 1900. The maximum penalty is 14 years imprisonment.

2. Aggravated enter dwelling with intent knowing people there, for being an accessory before the fact to the entering of a dwelling house with intent to steal a black Mercedes Benz while there were persons present, contrary to s111(2) Crimes Act 1900. The maximum penalty is 14 years imprisonment.

3. Steal Motor vehicle, for stealing a Black Mercedes Benz bearing NSW registration plates [xxx]04E, contrary to s154F Crimes Act 1900. The maximum penalty is 10 years imprisonment.

4. Steal Motor vehicle, for being an accessory before the fact to the stealing of a Black Mercedes Benz bearing NSW registration plates [xxx]11E, contrary to s154F Crimes Act 1900. The maximum penalty is 10 years imprisonment.

3. None of the offences carry a standard non-parole period.

Section 166 certificate

4. The Offender is also before the Court for the following related offence contained in the s166 certificate. The drugs in question were found at the Offender's premises on execution of a search warrant relevant to the above offences.

1. Possess prohibited drug, for having 6 grams of 1,4 Butanediol in his possession, contrary to s10(1) Drug Misuse and Trafficking Act 1985. The maximum penalty applicable is 2 years imprisonment and/or 20 penalty units.

Timing of plea

5. The Offender pled guilty in the Local Court and is entitled to a 25% discount for the utilitarian value of his plea, in line with s25D(2) Crimes (Sentencing Procedure) Act 1999.

Parole status

6. The Offender committed the offences while on parole for:

1. Aggravated enter dwelling w/I knowing people there -SI

2. Take & Drive Conveyance w/o consent of owner -T2

3. Drive Motor Vehicle during disqualification period – 2^nd+ off

4. Police pursuit – not stop-drive recklessly – 2^nd+ off – T2

7. The Offender’s parole was revoked solely as a result of the present offending.

8. The Offender’s parole was revoked as of the date of his arrest on 19 January 2023. The balance of parole expired on 21 January 2024.

Time in custody

9. The Offender has spent 372 days in custody as at 25 February 2024. Almost all of that time is jointly referable to the present offending and the balance of parole for an earlier offence.

10. I will return to the question of how this period in custody is to be dealt with together with the Offender’s lengthy criminal history later in these reasons.

Agreed Facts relating to both the Offender and Mr Rogers

11. The parties have agreed to the following facts in relation to the matters before me.

H93014654;7 - Aggravated Enter Dwelling with Intent to Commit Serious Indictable Offence (Larceny) - s 111(2) Crimes Act 1900 Law part code 560.

1. The victims are Matthew King and Kylie King. The victims reside at Taren Point.

2. The victims are owners of two Mercedes vehicles. Matthew King is the registered owner of a black 2021 Mercedes M-AMG with NSW registration [xxx]11E ('Mercedes [xxx]11E'). Kylie King is the registered owner of a black 2021 Mercedes GLC with NSW registration [xxx]04E ('Mercedes [xxx]04E').

3. At around lunchtime on 7 January 2022, Kylie King parked Mercedes [xxx]04E in the garage. She did not lock the car once it was within the garage. She used the garage door remote to close and secure the garage door.

4. There was one garage door remote in Kylie King's vehicle, one remote in Matthew King's vehicle and another remote on the garage wall.

5. On the evening of 7 January 2023, both vehicles were parked in the garage and the garage door was closed.

6. At about 4:46am on 8 January 2023, the Offender was captured on CCTV walking inside the Taren Point property along the path running parallel to the driveway. The Offender was wearing a light grey and dark blue coloured hoodie and blue shorts. He approached the gate at the end of the path, opened it, and stepped through it before re-entering through the gate and walking down the path in the direction of the residence.

7. The Offender then walked across the driveway carrying a bag or case-like object under his left arm.

8. The Offender then gained entry to the property.

H93014654/9- Steal motor vehicle - s 154F Crimes Act 1900 Law part code 59794

1. The Offender gained access to the Mercedes Benz [xxx]04E which was parked in the garage. The Offender drove the vehicle up the driveway as the driveway gate automatically opened. The Offender stopped the vehicle at the top of the driveway before turning right and driving away at approximately 4:53am.

2. The victims were home at the time of the offence.

3. The following items were taken from the garage of the residence or were otherwise located inside Mercedes [xxx]04E:

1. Gucci brand beige handbag with the letter 'G' embossed on the front which had been left on the shoe rack in the garage.

2. An olive green coloured 'Mimco' brand wallet with a small gold cross and the word 'Mimco' in gold on the front. The wallet held a driver licence, Westpac debit card, Westpac credit card, between $400-$500 in $20 and $50 denomination bank notes, and a black pen branded with Matthew King's business name.

3. Two denim jackets located in her vehicle.

4. Green Woolworths bags.

5. Personal mail.

4. The Mercedes Benz [xxx]04E returned to underground carpark at the Co-Offender's apartment complex located at Kirawee at 5:57am on 8 January 2023.

H93014654/8- Aggravated Enter Dwelling with Intent to Commit Serious Indictable Offence (Larceny) - s 111(2) Crimes Act 1900 Law part code 560

1. At approximately 7:18am on 8 January 2023, the Offender drove Mercedes [xxx]04E and stopped directly outside the complainants' property. The automated gate across the driveway then opened.

2. At 7:19am, Mr Rogers, the Co-Offender, wearing a black tracksuit, black gloves and black balaclava, got out of the car and ran down the driveway toward the residence.

H93014654/10 - Steal motor vehicle - s 154F Crimes Act 1900 Law part code 59794

1. The Co-Offender entered the garage and started the engine of Mercedes Benz [xxx]11E.

2. At 7:20am, the Co-Offender reversed Mercedes Benz [xxx]11E up the driveway where it turned right and drove out of sight along with Mercedes [xxx]04E driven by the Offender.

3. Matthew King indicated the following items were inside his car and had been taken along with the vehicle:

1. a black leather wallet.

2. a driver licence in the name of Matthew King.

3. An AMEX card in the name of his business.

4. MasterCard in the name of Matthew King.

5. A Visa card in the name of the business.

6. A Medicare card

7. An Australian Unity health care card.

8. 12-14 keys to six real estate offices at San Souci, Brighton Le Sands, South Hurstville, Oatley, Revesby, Beverley Hills.

9. Keys to the Taren Point property.

10. $300 in cash located in the centre console and a number of coins

4. Matthew King and Kylie King contacted Police on the morning of 8 January 2023.

5. Matthew King used the 'Mercedes Me' phone application to locate Mercedes [xxx]04E which had been abandoned in the vicinity of Tonbridge Street, a cul-de-sac in Ramsgate.

6. CCTV footage from a residence in Tonbridge Street depicts both Mercedes arriving in the cul-de­ sac at approximately 7:49am. The Offender and another individual exit Mercedes [xxx]04E at 7:50am and enter Mercedes [xxx]11E driven by the Co-Offender. The Offender and Co-Offender then drive away from Tonbridge Street.

7. Mercedes [xxx]11E was recovered from an unrelated address at 85 Claremont Street in Campsie.

8. The Offender's fingerprints were located on the edge of the driver's door on Mercedes [xxx]04E that was abandoned in Tonbridge Street.

Section 166 Certificate - H93014654/5- Possess Prohibited Drug - Section 10(1) Drugs Misuse and Trafficking Act 1985 (NSW) 3145

1. Police applied for and were granted a search warrant for the Offender's residence at Carlton NSW 2218 on 18 January 2023 (Sutherland Local Court, SW12/2023). The warrant was executed on 19 January 2023 and the Offender was arrested.

2. In the course of the search, a Dettol bottle was located containing clear liquid.

3. The bottle was tested and found to contain 6 grams of 1,4 Butanediol which is a prohibited drug.

4. The Offender was taken into custody on 19 January 2023 and participated in an ERISP at 11:41am.

Objective Seriousness

12. I find the following factors are present in this case and have regard to them when considering the objective seriousness of the offence as well as factors relevant to the actual sentence. Those factors are:

1. The offence was committed while the Offender was on parole.

2. The Offender has a not insignificant prior record for like offences.

3. The offences involved a series of repeat entries into the same premises.

4. The vehicles were of considerable monetary value.

5. The offences were committed at a time and place where regardless of whether the Offender knew or not it was very likely that the premises would be occupied.

13. A further important relevant fact going to the objective seriousness of the offence is the fact the Offender returned to the premises hours later to facilitate the entry and stealing of another vehicle from the same premises using the keys stolen on the first occasion. There must have been a degree of planning involved in organising a companion to assist, although the time frame between each is only hours. During that time, there was plenty of time for the Offender to reflect on what he planned to do the second time, appreciate it was wrong and to change his mind.

14. The Offender contends as to objective seriousness that the offences were largely opportunistic, not accompanied by damage to property, the victims whilst at home remained asleep and was of short duration. I largely accept that characterisation with the qualification about premeditation for the second event.

15. Taking all those facts into account, I approach the matter upon the basis that the offending can be described as slightly below the mid-range for these types of offences.

Aggravating factors

16. As I have already said, the offences were committed in the home of the victims while they were at home and were committed while the Offender was on parole.

Accessory

17. Section 346 of the Crimes Act applies to sequence 8 and 10, namely;

“Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced, either before or after the trial of the principal Offender, or together with the principal Offender, or indicted, convicted, and sentenced, as a principal in the offence, and shall be liable in either case to the same punishment to which the person would have been liable had the person been the principal Offender, whether the principal Offender has been tried or not, or is amenable to justice or not.”

18. What that means is that I must treat the Offender’s conduct relating to the second event as if he had actively entered the premises and stole the second car.

The Offender’s criminal history

19. The Offender has a long and sorry criminal history. Set out below is but a sample focussing on similar offences to the ones before me (Exhibit B).

Dates	H Number	Charge	Sentence
Offence 1/7/2020 Sentenced 21/4/2021	H78618140/2	Drive conveyance taken without consent of owner	12 months imprisonment 11/9/2020-10/9/2021 NPP 6 months
Offence 29/8/2020 Sentenced 24/9/2021	H74262410/2	Take & drive conveyance w/o consent of owner	Taken into account on form 1 (aggregate sentence 36 months)
Offence 29/8/2020 Sentenced 24/9/2021	H74262410/8	Take & drive conveyance w/o consent of owner	Indicative 9 months
Offence 16/8/2020 Sentenced 24/9/2021	H75722718/8	Take & drive conveyance w/o consent of owner	Taken into account on form 1 (aggregate sentence 36 months)
Offence 25/8/2020 Sentenced 24/9/2021	H75345804/5	Take & drive conveyance w/o consent of owner	Taken into account on form 1 (aggregate sentence 36 months)
Offence 5/8/2020 Sentenced28/9/2020	H75182906/1	Enter vehicle or boat without consent of owner/occupier	S10A
Offence 22/8/2020 Sentenced 11/1/2021	H79624088/1	Enter vehicle or boat without consent of owner/occupier	Fine $220
Offence 15/2/2019 Sentenced 21/2/2019	H71026508/3	Take & drive conveyance w/o consent of owner	Indicative sentence 12 months
Offence 30/1/2019 Sentenced 11/2/2019	H358904193/1	Enter vehicle or boat without consent of owner/occupier	Fine $300
Offence 28/6/2018 Sentenced 9/8/2018	H67566670/3	Take & drive conveyance w/o consent of owner	9 months imprisonment 29/6/2018-28/3/2019 with NPP 3 months
Offence 5/2/2018 Sentenced 9/8/2018	H130588302/1	Take & drive conveyance w/o consent of owner	3 months imprisonment 9/7/2018-8/10/2018
Offence 25/3/2016 Sentenced 30/3/2017	H61596965/7	Received M/V part-theft	9 months 25/3/2016-24/12/2016
Offence 28/9/2014 Sentenced 6/1/2015	H56508868/1	Take & drive conveyance w/o consent of owner	13months and 15 days imprisonment 12/3/2015-26/4/2016 with NPP 7 months

The Offender’s time in custody

20. The Offender, who is only 29 years old, has spent a large period of his adult life in custody as a consequence of his repeated breaches of the law. I set out details (Exhibit E):

Date of Admission	Dates of release	Days spent in custody
20/07/2011	20/07/2011	1 day
22/07/2011	28/07/2011	6 days
09/10/2014	09/10/2014	1 day
14/10/2014	11/10/2015	362 days
26/03/2016	24/06/2017	455 days
19/02/2018	07/04/2018	47 days
30/06/2018	08/10/2018	100 days
31/01/2019	11/02/2019	11 days
15/02/2019	13/01/2020	332 days
11/09/2020	10/11/2022	790 days
20/01/2023	23/01/2024	368 days
TOTAL Days: 2473 or 6 years 9 months

21. As can be seen it was only in November 2022 that the Offender was released following a long period in custody. By January 2023, he was back in custody following the events the subject of these reasons.

Legal principles

22. The Crown has emphasised that wholly concurrent sentences are not appropriate for multiple break and enter type offences, even where part of a single spree of criminal behaviour, per R v Grover; Grover v R [2013] NSWCCA 149.

23. Moreover I must not lose sight of:

"The invasion of people's homes and the plundering of their property is a social evil from which the community looks for protection to the la​​w enforcement agencies and the criminal courts" O'Grady v R [2013] NSWCCA 281 quoting ​R v Hayes [1984] 1 NSWLR 740.”

Subjective factors

24. The Offender was 29 years of age at the time of the offences.

25. As I have said, he has a lengthy criminal history. It can be readily seen that he has been involved in many crimes similar in nature to the present offending. Custodial sentences do not appear to have deterred the Offender from re-offending. Accordingly, I do not think subjective deterrence has much part to play in this exercise, however, the Offender’s criminal history very much impacts on questions such as his prospects of reoffending (which I consider to be high) and the very important matter to be taken into account, that is, protection of the community.

26. As far as contrition and remorse are concerned, I don’t think the Offender’s plea to these matters should be taken into account any further than the statutory discount. This is because it appears to me that the Crown case against him was very strong. However, since going into custody, he has demonstrated a desire to improve his ways which I think is demonstrable of a level of remorse and /or perhaps contrition. Certainly, he appears to have been trying very hard to change his ways. He finally seems to have come to appreciate that he will spend the majority of his life in custody if he does not stop breaking the law.

27. The Offender has tendered on the hearing before me a psychological report of Dr Susan Hawil, a letter from the Offender to the Court, an affidavit of the Offender’s mother, an affidavit of the Offender's solicitor, together with various certificates indicating successful completion by him of various courses whilst in custody.

28. The Offender’s subjective case can be summed up as follows.

1. The Offender had a reasonably difficult childhood due to the breakup of his parents leading to divorce when he was six years old. He found it difficult to adjust to that event and he developed a strained relationship with his mother which coincided with him beginning to smoke cannabis at around the age of 14.

2. The Offender witnessed some reasonably traumatic events in the family home and eventually moved in with his maternal grandfather. Again, his relationship with his maternal grandfather appears to have been extremely fraught.

3. The Offender became homeless between the ages of 16 and 18 but resumed a relationship with his mother upon the death of his grandfather.

4. The Offender was suspended from high school. The only qualification he has received is a spray painting course whilst residing at a youth refuge. He had commenced work as a full-time labourer one week prior to the offending behaviour the subject of this sentence. As far as I can tell, this was his first full-time employment. He seems to feel he was treated unfairly by his employer which in some way is connected to why he offended.

5. As I have said, the Offender first started using cannabis as a young boy who progressed to ice at the age of 16 and began using heroin at the age of 20 and appears to have become an addict.

6. Since being in custody in relation to these matters the Offender has successfully and enthusiastically been participating in the Buvidal program and appears to have become drug-free.

7. As I have said, the Offender was placed in juvenile detention when he was 16 years of age. He reports that he was sexually assaulted during that time and has a claim on foot against the State arising out of that event.

Mental health / drug use

29. Ms Hawil has diagnosed the Offender with a major depressive disorder and anxious distress recurrent severe (DSM-5TFF33,2), stimulant use disorder – amphetamine -type substance severe in controlled environment (DSM-5TR, F15.20) opioid use disorder severe on maintenance therapy in controlled environment.

29. Ms Hawil has recommended a risk management and treatment program and finally has assessed the Offender as posing a medium high risk for committing general offences. I think that is a fair assessment.

Resolution

31. The Offender was 29 years old at the time of the offences. He was subject to emotional stress as a result of the divorce of his parents, was a witness to traumatic events, has been the victim of childhood sexual abuse and has been a very heavy drug user from a young age.

32. The Offender has expressed his guilt and remorse to me but on the other hand, there is very little mention in his subjective case of his lengthy criminal history which makes me a little sceptical as to his true state of mind.

33. However I do accept and proceed upon the basis that the Offender is remorseful and does wish to change his ways. He has ongoing family support from his mother which is positive in terms of his rehabilitation and risk of reoffending, and has sought to improve himself whilst in prison by getting off drugs and doing such courses as are available to him. That is very much to his credit and gives a basis for some real hope for his rehabilitation.

34. As to his prospects of rehabilitation and reoffending. These factors loom large in my decision. On behalf of the Offender it has been submitted that I should find on the balance of probabilities that he has reasonable prospects of rehabilitation. The Crown’s submission is that I should be much more guarded. I don't feel I can go as far as the Offender suggests but I do not rule out the possibility that he may mend his ways, become drug-free and cease what has been a very unproductive life to date, and become a more positive member of the community. I wish to give him every chance to do so. He must understand that if I do so, this will be his last chance.

35. I don't think that the Offender’s mental health condition is a direct cause of his offending, however, I do find that a combination of his difficult upbringing, his long-term drug addiction together with his mental health condition and the fact that he was on drugs at the time of his offending are all factors which can be seen to reduce his moral culpability somewhat.

Section 5 Threshold

36. It is accepted that the s 5 threshold has been passed and that no other sentence but full-time imprisonment is appropriate.

Matters to be decided

37. The matters for determination therefore become:

1. What are the indicative sentences appropriate for each offence;

2. How much if any accumulation should be applied so as to determine an ultimate aggregate head sentence;

3. Whether special circumstances have been established so as to justify a departure from the usual non-parole ratio;

4. What date should any term of imprisonment commence from in light of the overlapping reasons for the Offender’s time in custody since 19 January 2023, a large portion of which is a result of his parole for an earlier offence having being revoked as a consequence of him committing these offences.

38. Dealing with each matter in turn:

Appropriate indicative sentences

39. I think the circumstances surrounding each offence are basically the same although the offences relating to the second event seem to have involved more planning and the involvement of a co-accused. Whilst the first could be described as opportunistic, the second was not. Both were committed when the Offender was significantly affected by drugs.

40. Taking into account all the matters I have mentioned, the factors set out in s 3A of the Crimes (Sentencing Procedure) Act and giving particular weight to general deterrence and adequate punishment without taking away any chance of rehabilitation, I have decided that an appropriate starting point for each offence is 3 years’ imprisonment.

41. From that the Offender is entitled to a 25% reduction to reflect the utilitarian benefit of his early guilty plea.

42. Accordingly, in relation to each of the four offences the indicative head sentence is 2 years’ imprisonment.

Accumulation / Totality

43. The Crown has reminded me that concurrent sentences are generally not appropriate for multiple break and enter type offences even when part of a single spree of criminal behaviour: see Grover v R [2013] NSWCCA 149

44. On behalf of the Offender, it is accepted that there must be some accumulation to reflect the trauma to the victims and that each offence represents a separate and discrete act of criminality.

45. However, the Offender submits that there should be an aggregate sentence that does not have a significant degree of accumulation between each individual offence because such approach will lead to a crushing verdict, which will destroy any prospect of the Offender’s rehabilitation and that it is significant that the offences occurred over a very short period of time, within hours of each other, and the each enter dwelling offence is directly linked to or a consequence of the steal motor vehicle offences, and that the aggravated enter dwelling offences in part comprehend and reflect the criminality of the remaining offences – Cahyadi v R [2007] NSWCCA 1 at [27]

46. This is not a mathematical exercise – Morrison v R [2022] NSWCCA 158 at [66] and is more an intuitive “synthesis" of all the relevant factors.

47. Doing the best I can, I think the starting point is that I accept the proposition that each events of enter dwelling and theft of motor vehicle (together with the other items) one really is considering a single act of criminality. Accordingly, I think as between each of the two events, I should accumulate the sentence wholly so as to reach a notional aggregate starting point of 2 years after deducting the 25% for the early guilty plea for each event.

48. As between the two events, as I have said, they do occur only hours apart and really do form part of a single act of criminality. However, they are separate and the second was to an extent planned, involved an accomplice and the trauma to the victims in having their home broken into and cars stolen would have been substantially exacerbated by finding out they had been broken into and robbed twice on the one night.

49. I have come to the conclusion that the appropriate aggregate sentence for all of the offences is 3 years. This includes the drug offence, which has not figured large in these reasons, but I feel is towards the low end of objective seriousness for those type of offences. On its own I would not have imposed a custodial sentence.

Special circumstances

50. On behalf of the Offender, it is submitted that the following circumstances are “sufficiently special" to justify a variation in the statutory ratio: R v Fidow [2004] NSWCCA 172 at [22]. Those factors are, the remorse and insight that the Offender has shown – as I have said, I generally accept there is some remorse and insight. There is also the undeniable fact that an extended period of supervision may well help address the Offender’s substance dependence and fragile mental state. Thus his prospects of rehabilitation would be assisted by a longer parole period – R v Lunhan [2016] NSWCCA 287 at [7]. This is not only good for the Offender but also for the community.

51. In those circumstances I've decided to increase the ratio so as for it to be 30% of the head sentence.

When should the sentence be taken to commence?

52. Almost all the time the Offender has spent in custody as a result of these offences is also attributable to the revocation of his parole relating to an earlier offence which expired on 21 January 2024.

53. It important to try and avoid double punishment in this regard - see Callaghanv R [2006] NSWCCA 58. On the other hand, it is very also important to avoid at least the perception that offenders receive some sort of discount for multiple offending.

54. In this case like in R v Primmer [2020] NSWCCA 50 the sole reason for the revocation of Mr Foster's parole is the offence for sentence. This is a relevant factor. I think if he was being sentenced for all the offences together there would have been some accumulation.

55. Taking all those matters into account I have determined that the appropriate date for the sentence to commence is 1 July 2023.

Conclusion

56. What all that means is that I have decided:

1. To impose an aggregate sentence in relation to the four matters before me, taking into account the drug-related matter contained in the s 166 certificate and the 25% discount for the early guilty pleas of 3 years imprisonment with a non-parole period of 2 years.

2. The sentence is to commence from 1 July 2023.

3. The earliest date the Offender will be eligible for parole is 30 June 2025.

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Decision last updated: 25 January 2024