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.