R v Fuller

[2023] NSWDC 597

District Court

New South Wales

Medium Neutral Citation:

R v Fuller [2023] NSWDC 597

Hearing dates:

2 November 2023

Decision date:

06 November 2023

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted.

Form 1 matters taken into account.

Sentenced to a term of imprisonment for 4 years with a non-parole period of 3 years to commence on 29 October 2022 and to expire on 28 October 2025, and a balance of term of 1 year to commence on 29 October 2025 and to expire on 28 October 2026.

Eligible for parole on 28 October 2025.

Catchwords:

CRIMINAL – sentence - enter dwelling with intent to steal – Form 1 offences x 2, larceny + steal motor vehicle – seriousness of offences – roles of offender & co-accused – impact on victim – uncharged conduct relevant to remorse & contrition - subjective matters

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Category:

Sentence

Parties:

Rex
Fuller, Nathan

Representation:

Counsel:
Defence: Ms S Kluss

Solicitors:
Crown: Ms J Calo, ODPP
Defence: Mr A Miller, Ross Hill & Associate Solicitors

File Number(s):

2022/00323923

JUDGMENT

1. HIS HONOUR: Nathan Fuller appears for sentence in respect of an offence of enter dwelling with intent to steal, contrary to s 111(1) of the Crimes Act 1900. The maximum penalty provided is ten years' imprisonment and there is no relevant standard non-parole period. When being sentenced in respect of that offence, he asks the Court to take into account two further offences contained on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999.

2. Those offences are larceny, contrary to s 117 of the Crimes Act, which has a maximum penalty when dealt with on its own of five years, and steal motor vehicle contrary to s 154F which has a maximum sentence when dealt with on its own of five years. He was committed for sentence on 28 June 2023 from the Burwood Local Court and is accordingly entitled to a 25% discount for the utility of the plea alone. Such a discount has been provided.

3. The date of the offence was 29 October 2022, and he was arrested on that day and has been in custody as a result of this matter only since that time. The facts are agreed and are as follows.

Enter Dwelling with Intent to Commit Serious Indictable Offence

1. The offender, Nathan James Fuller, was born on 21 July 1986 and was aged 36 years.

2. The co-accused is Aylicia Baroutis.

3. The victim is Amir Naghash Zargaran, aged 45. The victim was the owner of a silver Mercedes C200 bearing New South Wales registration EIB 79V.

4. The victim was known to the co-accused Baroutis since July 2022 through a dating website, "Sugar Daddy Meet". The victim knows the co‑accused Baroutis as "Doll". The co-accused and the victim have met on several previous occasions since July 2022.

5. On 29 October 2022 at around 12.30pm, the co-accused arranged via text message to meet with the victim at the Mercure Hotel located on Talavera Road, Macquarie Park. Screenshots from the victim's phone depict his conversation with “Doll2”, being the co-accused Baroutis.

6. The agreed facts contain several screenshots which indicate that the victim was to arrange a hotel room at which he and Baroutis could meet. He checked into the Mercure Hotel and provided the details of its telephone number, and also, at 7:58, the room number and directions as to how to reach the particular room, to Ms Baroutis, who at the time indicated that she was about five minutes away. Having received that information, the co-accused sent a screenshot of her messages with the victim to the profile “Jayden Leslie” via Facebook Messenger, and suggested, "Let's go this one.”

7. At 2.30pm the victim arrived at the location in his Mercedes vehicle and parked on Talavera Road outside the hotel. The victim had $2,000 to $2,500 in Australian currency within his vehicle. The victim checked into the Mercure Hotel at the front reception counter. The victim entered Room 311, located on the third level and placed $500 by way of five $100 notes inside a drawer underneath the television, to be used as payment for the co-accused's time.

8. A short time later, Jayden Leslie messaged the co-accused on Facebook Messenger indicating, "We are here." She responded, "Beep at me when you see me." He responded, "Turn around.”

9. At 2.42pm the offender, the co-accused and an unknown male driver of a white Subaru Impreza, bearing New South Wales registration EVA 80D were captured on CCTV headed towards the Mercure Hotel.

10. At 2.44pm the co-accused exited the vehicle and walked towards the Mercure Hotel wearing a green dress and green sandals, and then entered the foyer of the hotel.

11. The co-accused was seen using her phone on CCTV as she messaged again to Jayden Leslie on Facebook at 2.48pm. She said, "Going up the lift now. Tell him to go in, turn left and the lift on the left then press number 3, Room 311 Tell him come now." Jayden Leslie, or the person answering to that name in the messages, responded "His coming."

12. At approximately 2.46pm the offender was captured walking towards the Mercure Hotel, wearing a Gucci hat, a blue, red and white Le Coq Sportif hooded spray jumper, red Nautica shorts and black ASICS shoes. The offender entered the Mercure Hotel and went to the lift and floor number and hotel room of the victim as had been advised by Baroutis to Jayden Leslie. The facts contain photographs taken from CCTV footage of the offender walking towards the hotel and entering through the doors to the reception area, dressed as previously stated.

Enter Dwelling with Intent to Commit Serious Indictable Offence - s 111(1) Crimes Act

Form 1 - Larceny - S 117 Crimes Act

13. The offender knocked on the door to Room 311 knowing the co‑accused was with the victim inside the hotel room. The victim opened the door and was confronted by the offender, who then attempted to push past the victim. Fearing for his safety, the victim ran past the accused, up the hallway and shouted out "I will call reception." as he headed towards the lobby to locate hotel staff.

14. The offender then entered the hotel room and the offender and the co‑accused removed the $500 cash from the drawer (larceny, Form 1 offence). The offender picked up the keys to the victim's vehicle, and the offender and co-accused then left the hotel room and exited the building via the fire escape stairs.

15. At 2.51pm the offender and co-accused were captured on CCTV exiting the Mercure Hotel via the fire stairs towards ground level, where they met up with the driver of the white Subaru parked in the driveway of the complex. The offender and the co-accused entered the white Subaru vehicle. The Agreed Facts contains photos taken from CCTV footage of what I have just described.

Form 1 - Steal Motor Vehicle - s 154f Crimes Act

16. At 2.53pm the offender exited the white Subaru vehicle on Talavera Road and approached the victim's Mercedes vehicle. The offender used the stolen car key to unlock and enter the vehicle, at the same time as the white Subaru is recorded driving slowly alongside it.

17. The offender pulled out from the parking spot and drove the Mercedes vehicle in a westerly direction along Talavera Road, turned the vehicle around and departed the location in an easterly direction along Talavera Road.

18. At approximately 9.30pm police attended the residence of the co‑accused Baroutis in Higgenbottom Road, Gladesville, as the co‑accused and the offender got into the rear seat of an Uber rideshare car.

19. A short time later police stopped the Uber vehicle on Pittwater Road, Gladesville, and placed both the offender and co-accused under arrest. The offender and co-accused were separated, cautioned and searched. Police seized a black Subaru key from the back seat of the Uber vehicle where the offender and co-accused had been seated.

Post-Arrest Conduct (Uncharged)

20. Police obtained and reviewed recordings of the offender's gaol calls. The offender spoke with his mother on some calls, whilst others involved three‑way conversations between the offender, his mother and either the co-accused Baroutis, or another male referred to in the facts as "known to police". During the calls, Fuller discussed the offending and "paying off" the victim.

21. On 3 November 2022 the offender called and discussed the offence with his mother and made the following admissions:

i) "The situation at this motel, I've knocked on the door, he's opened...I know they're going to have me on camera...It's an enter dwelling at worst".

ii) "As for the Mercedes, yeah, all right, I took the key, yeah I did."

22. On 5 November 2022, the offender called his mother who connected a three-way chat with the co-accused Baroutis.

i) The co-accused told the offender:

"There is a man, he's pressing charges against you. Do we aypay (pay) for him not to come ourtcay? (court) Did you get that? So, I tell him where the arcay (car) is because that's what he wants. That's what he wants because no insurance. Listen, he has no insurance on his arcay (car). Are you listening? And instead of pay the lawyers, we can pay him not to come to ourtcay (court)."

ii) The offender told the co-accused:

"Tell him this one, tell him, are you in a position to tell him where (inaudible) tell him we'll give him that plus 25K. Tell him to withdraw all of it..."

23. Later on 5 November 2022 during a three-way gaol call between the offender, his mother and a male, again known to police, the male offered to, "sort this out for ya.” (i.e., the offender)

24. On 6 November 2022 the victim received a call on his mobile phone from a man speaking with a Middle Eastern accent. The man told the victim that he had the victim's car and asked the victim to drop the charges against Nathan, namely the offender. The man told him that if he did this, he would tell the victim where his car was and offered to pay him money in addition to returning his car.

4. I note in respect of paras 20 to 22 that it relates to uncharged conduct which in short terms would appear to represent a conspiracy to pervert the course of justice. I note that while I have been provided with that material as part of the facts, the offender is not charged with any such offence or like offence, and I will not be taking that into account in sentencing him for the offences that he is to be sentenced for.

5. It is, however, relevant to issues such as remorse and contrition that the offender, having been arrested and made some admissions, was then prepared to enter into an agreement to pervert the course of justice by paying the victim and returning his motor vehicle. It does not sit well with the offender acknowledging his guilt or having any particular remorse or contrition in respect of his offending, in that he sought to commit a further offence in order to avoid the result of his previous actions.

6. The agreed facts do not say anything about the value of the C200 Mercedes. Depending on how recent a model it was, and the extent to which it was an upgraded model, it may have had a value as high as somewhere in the $90,000 to $100,000 range. Of course, if it was some years old and had done a reasonable number of kilometres, its value would be far less. But all Mercedes-Benz are expensive and C200s are not an exception.

7. I note there is nothing in the facts that suggests that the Mercedes-Benz was ever recovered or returned, or that the offender provided any information to assist in that regard. Indeed, when I raised that topic during the course of the sentence hearing, when the offender was giving evidence on sentence, he claimed that he did not know what had happened to the Mercedes, that he had only driven it away and then changed over with the driver of the Subaru. That is, of course, inconsistent with what is contained in the recorded prison calls offering to return the vehicle.

8. I further note as a matter of convenience that during the course of his evidence, and in his statements to a psychologist, Mr Pusey, he has claimed that he was physically assaulted while in Juvenile Justice custody, and was making a claim for compensation, which by the time of the sentence had apparently resulted in a payment to him of $50,000.

9. Despite the fact that he was apparently in funds, his evidence was that he had not made any endeavour to have his legal representatives make any inquiries about any likely compensation that he might pay to the victim in respect of the loss of his Mercedes, which was apparently known to the offender as a result of the prison calls, as being uninsured. That is an indication that the offender only thinks of himself, and has no empathy for his victim, no matter what the value of the Mercedes was.

10. While $500 was taken from the hotel room, the evidence of the victim was that he had some $2,500 in Australian currency within the vehicle. It may be that the $500 in the hotel room was an additional sum, meaning that he had potentially lost $2,500 to $3,000, or if the $500 was part of what he had in his vehicle, claimed to be $1,500 to $2,000. There is no specific charge in relation to the money in the car. It has simply been dealt with as part of the contents of the car. It would have been a simple matter for the police officers investigating this matter to obtain some relevant details about the economic loss to the victim, and they have not assisted the Court by failing to do so.

11. The contact between the accused and the victim was of relatively short duration. There was no injury to the victim, and the victim was astute enough to realise almost immediately on opening the door, what was about to happen and fled, unfortunately leaving his Mercedes keys behind, as well as the $500 in the drawer. It is not difficult to understand what services he expected to be paying $500 for. This was a deliberately organised criminal offence, this offender being in league with two others: Ms Baroutis, who was in the position to set up her “Sugar Daddy” friend, knowing that he would have at least some money to pay for her services, and the offender to attend the room in order to extract whatever could be extracted from the victim, as well as a third person to drive the vehicle in which they would, in the ordinary course of events, have no doubt expected to depart.

12. It is not possible to say on the facts whether the offender intended from the outset to steal the Mercedes-Benz, and it may be that that was a spontaneously engaged-in benefit from his observation of the Mercedes keys in the hotel room.

13. In my view this is a serious offence, as are each of the offences on the Form 1, although, in my view, the theft of the motor vehicle, although it only carries a maximum of five years, is perhaps more significant than either of the other two offences. In the circumstances, a significant sentence must be imposed when one considers the personal circumstances of the offender.

14. Before the Court in respect of subjective matters is the following: his criminal history; a New South Wales Department of Corrective Services Convictions, Sentences and Appeals Report and a Sentencing Assessment Report under the hand of Kate Fudali, a Community Corrections officer, dated 31 October 2023. In addition, tendered on the offender's behalf, is a report from Dr Paul Pusey, psychologist, dated 26 October 2023. The subjective matters are drawn from that material.

15. The offender is 37 years of age and was 36 years of age at the time of the offence. The offender has a significant criminal history which includes:

• Driving offences: unlicensed driver (2004), drive low range PCA (2004), take and drive conveyance (2011), police pursuit (2014, 2015), drive illicit drug present (2015), drive motor vehicle whilst disqualified (2015, 2016).

• Property offences: destroy/damage property (2017, 2 x 2019); larceny (2 x 2019), goods in personal custody (2022), steal from person (2019).

• Housebreaking offences: break and enter with intent to steal (2017); enter inclosed lands (2022).

• Violence offences: common assault (2008); assault occasioning actual bodily harm (2011, 2 x 2017); resist or hamper officer in execution of their duty (2009, 2022); intimidate officer in execution of duty (2022); robbery in company (2 x 2011); reckless wounding in company (2019).

• Domestic violence offences: common assault (DV 2 x 2009, 2014), contravene ADVO (3 x 2009, 3 x 2017); destroy/damage property (DV 2 x 2009); stalk, intimidate, intend fear (3 x 2014, 2017, 2021, 2022).

16. The offender's criminal record commences as a juvenile in 2001 at the age of 14. His criminal record disentitles him to leniency. It indicates that specific deterrence is very relevant in relation to the sentencing of this offender and indicates that this offending cannot be regarded as some form of uncharacteristic aberration. All of the information contained in Dr Pusey's report is the result of self-reporting by the offender to Dr Pusey. In summary:

1. He was born in Australia, an only child but with multiple half-siblings. He reports that he did not grow up in a house with both parents living together.

2. He has had an inconsistent relationship with his father, who the offender describes as old and not well. In his evidence on sentence, the offender referred to him as residing in a care home, or institution, suffering from a terminal illness, expecting not to last much longer.

3. He described his relationship with his mother as all right, "I love her and it's all good. I hate seeing her down all the time. She wants to see my change and live my life." (I suspect that may have been, "She wants to see me change and live my life.")

4. He grew up in Merrylands and reports violence between his mother and stepfather, reporting that he was also victimised by violence during his childhood and adolescence.

5. He was diagnosed with ADHD and treated with Ritalin and Dexamphetamine until the age of 13.

6. He left school in Year 9, reporting, "I'm not too sure if I made it through Year 9 or I left. It was too hard for me."

7. During school he was suspended a few times and expelled from one high school for conduct-related issues.

8. He has no recollection of his last paid employment, nor is it suggested anywhere in the report that he ever was in paid employment.

9. The offender reports experiencing sexual abuse perpetrated by staff members during an episode of juvenile incarceration when he was aged 17. As previously referred to, he claims to have received a $50,000 payout as a result of a claim against Juvenile Justice.

10. He has few friends in the community. Most of his friends are in gaol. He claims to have remained in close contact with his younger stepbrothers and his mother, and sporadically his father, and to have a 17‑year‑old daughter who lives with her mother in Sydney. He otherwise does not have many prosocial relationships with the community. He claims that one of his brothers has offered to employ him in landscape gardening when released, and should he be able to terminate his use of prohibited or prescription drugs not prescribed for him.

11. The Sentencing Assessment Report indicates that he was not employed at the time but was receiving Centrelink benefits.

12. He has had a longstanding substance abuse issue commencing at the age of 12 to 13 with smoking cannabis. He commenced using heroin and ice at age 17 and has continued with both intravenous drug use as well as misuse of prescribed medications. The longest period of abstinence in the community is said to be a period of three months, during which time he did not use ice or heroin. He denied alcohol as being a problem for him, and while in custody has been currently receiving Bupadiol treatment, that is, treatment effected by regular injections.

17. Dr Pusey also indicated that the offender had informed him that he had been admitted to Cumberland Hospital in 2008 in the context of an episode of drug-induced psychosis, and that he was admitted for a period of one month, without any follow-up treatment on discharge. Dr Pusey opined that the offender had a major depressive disorder and a substance use disorder at the time of the offending. He stated:

"It is my opinion that at the time of Mr Fuller's offence that he would have been suffering from multiple mental health impairments, those being a Major Depressive Disorder, which when acting in combination with pathology relating to his diagnosis of a Substance Use Disorder, impaired his judgment and behaviour as a result of the circumstances to which he was exposed. The significance of these impairments from a clinical diagnostic perspective are their impact on and contribution to the behaviour displayed by Mr Fuller which represents the impact on his behavioural repertoire of the ongoing activation of these pathologies."

18. Apparently, judging from his criminal history, that has been something which is ongoing from an early age, and I note the number of times that orders have been made for him to abide by directions as to treatment, in particular for drugs, which have apparently not had any real effect if provided.

19. As indicated, his criminal history is extensive, and a particular aggravating feature in relation to this offending is that some three days before this offence, he was placed on a one-year Community Corrections Order imposed at the Hornsby Local Court on 26 October 2022 for offences of goods in custody, stalk/intimidate, and intimidate police officer, and resist or hinder police. It is of serious concern that within three days of being placed on a Community Corrections Order for that raft of offences, he committed this offending of a significantly more serious nature. It demonstrates a contempt for the law.

20. During his evidence on sentence, he was taken to what might be regarded as the common way in which material on sentence is put before the Court these days. His counsel simply asked him whether he had told Dr Pusey the truth, to which he said yes. She asked him whether what he had said in his ERISP when arrested was the truth, and he indicated that he had told the truth. As a result of that evidence, there was some discussion between the bench and the bar table about the record of interview, and an indication given by the Crown was that he had made in effect fulsome confessions in the record of interview. As a result, I requested to be provided with the record of interview.

21. I have read the record of interview and there are a number of particular descriptors that come to mind having read it, that is, obfuscation, prevarication and dissembling. It demonstrated a rare inability to ever answer a question directly, and in general, to give a rambling non-answer, frequently punctuated, at times almost every second sentence, with the words "Do you know what I mean?" There is rarely in the interview a direct confession or admission. Of course, he was aware that he had been recorded on CCTV at the time of being interviewed, and he was aware that he had been arrested, together with Ms Baroutis, as they were leaving in the Uber from her premises.

22. Question 33 and some of the responses:

"Q. Who were you there with?

A. I struggle talking with people.

Q. Yeah, right.

A. I'm sitting here with two detective’s people.

Q. Okay.

A. That's...

Q. Who were you with when you arrived at the Mercure Hotel?

A. You know I was; you know I was, you know I was with Ayli and...and, um, there's no point of identifying the other person. Well, there's no point. Do you know what I mean? It ain't gunna help me."

23. When asked who he drove to the Mercure Hotel, he answered:

"There's no point, like that's irrelevant. Well, it's not to you guys, but fuck man, what's the point of me saying whose name it is. Youse are just, it's the same bro, like...same process for me. If there was, oh...if you had of worked with me, I would have fucking worked with you the whole way. Do you know what I mean? And now I'm just going to say it too, fuck that's, that's part of my, like, that's the stage of my life I’m at, you know what I mean? If, if I was out there pumping up and doing how you think, and I'm, I'm not saying that you're a dumb, how you, you're, how you've seen it, your view. If you've, if, if I was out there doing what your view, brother, youse would’ve had a harder time. And I'm not going to be pumpin' around with a, do you know what I mean, like...I know youse don't understand that. Like...you ain't gunna find me sitting in Gladesville, like I just pumped a fuckin' so-called, so-called, and I'm not saying that so-called aggravated break. That's a fucking serious indictable offence, you know what I mean?"

24. He endeavoured in his answer to Question 52, which was really part of a long running answer from Question 50, which was "Maybe that leads into my next question. What did you do when you go to the Mercure Hotel?" He then proceeded to talk with no interruptions other than "Yeah" or "Okay" at various points, and it appeared that what he was endeavouring to do was to suggest that Ms Baroutis was simply attending to see her "sugar daddy", and that he, in his answer to Question 52:

"I knocked on the door, he opened it, he goes 'Who are you?' I said 'Brother', you know, he took off. I said 'No, come back', do you know what I mean? If I, if I was like, um, what's the word, if I was dirty, I'm not dirty, I don't know the, I don't fuckin' know the bloke. I'm making sure she's safe, you know what I mean? That's, that's what I was there for."

25. Later, in his answer at Question 60, he said, "I wanted to get into that car to drive her. Like that's what I did wrong in my eyes." But he does indicate at his answer to Question 66 that he thought Ms Baroutis was engaged in prostitution, although it took him some 66 questions before he disclosed that belief, and he just took the keys because they were on the table, so he scooped them up. At Question 81, his answer was:

"You know what I mean, I jumped in that car, I started it up, I took off in it and I fucking stopped and realised I can't, I can't go, and I was saying to you like fuck man."

26. That was one of the few direct admissions that he made in the course of the interview.

27. In the answer to Question 99, after considerable waffling, he said, "You know what I mean? I took the money, I took the key, that's what I, yeah, I'm guilty, fuckin' oath I am." With the exception of referring to Ms Baroutis as having been there, he does not say anything about some plan between the three of them to carry out an offence, nor does he ever mention the name of the co-accused who drove the motor vehicle and waited for them while they carried out the offence. He was asked:

"Q. Was there any plan surrounding that?

A. Oh, I don't - surrounding? What do you mean? Was there a plan put in place for us to go see the sugar daddy? ...Yeah, of course, of course there was.

Q. And were you part of that plan?

A. What do you mean bro? I don't, you, that's fuckin', you confuse me, like if there's a plan put in place I'm there. Come on, bro, you know what I mean, of course...but what's the plan? To go take her to see sugar daddy. She's going upstairs, and maybe and this, this is not what I said, maybe I should have said 'Are you going up there to fuck him?' huh? 'Are you going up there to rub him' huh? 'What are you going up there?' do you know what I mean? Oh, I'd be able to give youse to a tee, do you know what I mean? It's like, it's not what youse think. It's like, is hustle a bad word? Is hustle an incriminating word? Hustle. That's what I've, that's what every party in it maybe but him, you know what I mean? But I, I, I, I said to her, like, you're going up there, like she goes no, no, no, like he's so nice, like we'll just kick back, you know, he'll make maybe a coffee. Like I said well fuckin' give me a hustle, whatever, you know what I mean?"

28. Question 143:

"Q. Did she know you were going to go up, come up?

A. Ask, ah, I don't know what she thinks in her head, you know what I mean? You know what?

Q. But was the arrangement is what I'm asking.

A. What, the arrangement?

Q. Yeah.

A. Go see her sugar daddy, get some dosh, let's go get some grog. I would have went in and fucking got some crack, do you know what I mean? That's the arrangement. Oh fuck, I fucked up, you know what I mean, like?"

29. To a significant extent, the offender was only prepared to admit to things when he was comfortable that they were things that would be easily proved by the arresting officers. As to where the Mercedes was, he said at Question 199:

"Q. Do you know where the Mercedes is now?

A. Where is the location is? No, um, area, probably yeah. Personally like...

Q. All right.

A. Like you, yeah, I don't know its location, no, sorry...shit, yeah.

Q. Okay.

A. No, I don't know its location."

30. As I have said, that is perhaps somewhat inconsistent with being able to determine its location for the purpose of returning it to get the victim to assist in perverting the course of justice. The offender in his evidence suggests that he will be an entirely new man when - in effect a new man - when released from custody because he will have been on the drug replacement program, and he will have some $50,000 as a result of the compensation to provide for his then ordinary needs such as accommodation, and he has indicated that he wishes to establish a relationship with his now 18-year-old daughter who, according to the criminal history, he could have had very little time with at all unless she was visiting him regularly while in custody.

31. His criminal history indicates that he has spent some nine periods of imprisonment in respect of offences for which he has been convicted, and one period of imprisonment in relation to offences that he was in fact found not guilty of. The breaks between those periods of imprisonment are generally short. The longest is a period of eight months, having been released on parole on 11 March 2013, he remained at liberty in the community until 11 November 2013. Generally, the periods are shorter. There is one seven-month period, two periods of two months, one period of four months, and one period of one month, as well as a period of five months and a further period of three months.

32. Since being in custody, he has been found in possession of a syringe. His explanation for that in his evidence was that it had been given to him by one prisoner, as I understood it, and he had it in his possession in order to pass it on to another inmate, but that he himself had not used it at all. Although he did confess that he had managed to use marijuana while in custody, at least on one occasion.

33. I note that replacement drugs such as Bupadiol are helpful in allaying symptoms that many prisoners experience when in custody from the sudden removal of their usual ability to obtain and consume prohibited drugs. It is not a cure. It is simply a replacement therapy, and unless the individual prisoner manages to stop entirely the use of prohibited drugs while in custody, as well as the replacement therapies, there is a very high risk that on release they will rapidly return to their old ways, that is, using prohibited drugs and committing criminal offences in order to fund them. This offender's evidence is that he committed the offences in order to obtain money, in order to fund his use of prohibited drugs.

34. Dr Pusey expressed the view that he was a moderate to high risk of re-offending. Ms Fudali of Community Corrections assessed him as being a high risk of re-offending. Her report contains a number of relevant matters to that. That the offender has limited prosocial supports in the community. He is expected to be homeless on release, although noting that he now has a large sum of money available to support himself, that he has been largely unemployed for the past 20 years and reliant on Centrelink prior to entering custody, that he has a lengthy criminal history made up predominantly of theft related offences, that prior to entering custody his behaviour had been poor, particularly in the preceding four weeks, and he had been at considerable disruption with persistent rudeness, non-compliance, and threatening behaviours towards a vulnerable inmate, and repeatedly calling a correctional officer a terrorist.

35. As to his attitudes leading up to the offences, he said he was feeling "shit all the time" due to having no money, job or accommodation, and that he had attended the hotel as he thought he would be able to steal cocaine from the victim. There is no evidence that the victim had cocaine. He claimed to have been using heroin and ice leading up to the offences to mask his feelings, and that his current Buprenorphine injections had assisted with his cravings. He is said to have appeared to recognise the seriousness of his offending behaviour and acknowledged the potential impact on the victim.

36. As to his past response to supervision, he has had frequent contact with Community Corrections since the onset of his criminal history and has been subject to breach action on numerous occasions due to re-offending, continued drug use, and subsequent returns to custody.

37. Ms Kluss in her submissions accepted that it was not possible to say that he had good prospects of rehabilitation given his history. In my view, taking into account all the matters that I have referred to, there is currently a very poor prospect of any rehabilitation by this offender. I note the commission of the offences so shortly within three days after being placed on a Community Corrections Order, his apparent lack of empathy for the victim, even though he is now in a situation where he could make some recompense perhaps for the financial injury no doubt occasioned to the victim.

38. Like many offenders who come before the Court after having repeatedly committed criminal offences and consequently going through the justice system, he is quite capable of mouthing what are effectively platitudes about his intentions for the future, such as that he would do the EQUIPS Foundation program, he would also do an alcohol and drug assessment, was prepared to go into a residential rehabilitation, and acknowledging that he needed assistance in those respects, and that of course he would not need to resort to crime because he was now able to rely on the $50,000 compensation he had received to pay for accommodation.

39. As to remorse and contrition, he also said this, that he:

“...experiences feelings of guilt and remorse in relation to life and everything I've done. I've hurt a lot of people and hurt myself. I haven't been a member of society and knowing this eats at you. I sit in my cell and think about this all the time."

40. That was something he said to Dr Pusey. That is perhaps some evidence of remorse and contrition, however I do not accept it as being genuine. I might have been prepared to accept something, if genuine, if it had been in circumstances where this offender when arrested had made clear admissions without obfuscation or prevarication, or first asking the police officers to disclose what they could prove and if he had entered a very early plea of guilty. But that is not the case here.

41. I have given careful consideration to the appropriate penalty to be imposed. As I have said, I am only sentencing in respect of the one offence, being enter dwelling with intent to steal, but I must take into account both the larceny and the steal motor vehicle offences on the Form 1. I note that although it has not been raised on sentence, he has been in custody for the last year, and it is probable that at least in part of that time he has been subject to more adverse conditions of custody as a result of the presence of COVID in the community.

42. I note that it is still continuing, and it is in those circumstances reasonable to anticipate future lockdowns affecting prisoners adversely until such time as COVID can be reasonably eliminated, or fully dealt with by way of vaccination, so that it is possible some further time in custody may also be in restricted circumstances.

43. I make it clear that in my view his moral culpability has not been reduced on the basis of Dr Pusey's statement as previously referred to. It is frequently the case that once offenders reach the age of 31, they finally decide that they would like to do something with their life than going in and out through the revolving door of prison. This offender has gone past that stage, and as I have said, committed these serious offences within three days of being placed on a Community Corrections Order, with what is in effect a very, very poor criminal history.

44. Accordingly, as accepted by Ms Kluss, the s 5 threshold has clearly been passed and a sentence of imprisonment must be imposed. I have taken into account all the matters that I have referred to, and in particular noting the Form 1 matters, and the aggravating circumstance, in my view, the appropriate sentence is one of five years and four months. Discounting that by 25%, the term of the sentence will be four years, and I do not find special circumstances. The non-parole period will be three years.

45. If I had some confidence that a longer period of parole would result in rehabilitation, I would have taken a different course and varied the statutory relationship, but in my view, there is insufficient evidence to suggest that a period of parole longer than one year would in any way assist this offender. In my view, unless he has totally ceased his use of drugs by the time he is released, his time in the community will be much like his time in the community in the past. It will not last long because he will turn back to use of prohibited drugs, his money will run out or be wasted on drugs or other pursuits. It will not engender legitimate income.

46. Although I note he wishes to re-establish or establish for the first time a relationship with his 18-year-old daughter, the fact that he has been since she was born in and out of custody so frequently and spent such little time in the community, means that there is probably little prospect of him being able to do so.

47. Accordingly, the sentence of four years will commence on the date he was taken into custody, 29 October 2022. The non-parole period is three years, so he will be first eligible for parole on 28 October 2025, and the full term of four years will expire on 28 October 2026.

Do you need those dates repeated for you, Mr Fuller?

OFFENDER: No.

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Decision last updated: 17 January 2025