R v Grahovac

[2012] NSWDC 299

District Court

New South Wales

Medium Neutral Citation:	R v Grahovac [2012] NSWDC 299
Hearing dates:	4 May 2012
Decision date:	04 May 2012
Before:	Berman SC DCJ
Decision:	Sentenced to imprisonment consisting of a non-parole period of 4 years and a head sentence of 7 years
Catchwords:	CRIMINAL LAW - Sentence - Form 1 - Aggravated break, enter and steal - Posses house breaking implement - Institutionalised offender -
Cases Cited:	Veen v R (No1) 1979 143 CLR 458 Veen v R (No2) 1988 164 CLR 465 Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Category:	Sentence
Parties:	The Crown Edward Grahovac
Representation:	Director of Public Prosecutions - Crown Legal Aid Commission - Offender
File Number(s):	2011/362283

SENTENCE

1. HIS HONOUR: Edward Grahovac appears for sentence after having pleaded guilty at an early stage to an offence of aggravated break, enter and steal. Because of his early plea of guilty and the associated utilitarian benefit to the criminal justice system that that plea of guilty brings, he will receive a sentence of 25% less than it would otherwise have been. The offence of aggravated break, enter and steal carries with it a maximum penalty of 20 years imprisonment. It also carries with it a standard non-parole period of five years. I have taken into account both the maximum penalty and the standard non-parole period in deciding the appropriate sentence in this case. My reasons for not imposing the standard non-parole period are to be found in these remarks on sentence.

1. Before I get to the particular facts in this case, it is to be noted that the offence of break, enter and steal in the circumstance of aggravation being that he knew that there were people inside, is the particular offence that the offender has pleaded guilty to. I have said in other judgments and I do not need to repeat myself, that many more serious offences are covered by s 112(2) which equally have the standard non-parole period of five years. Nothing that the High Court said in the recent decision of Muldrock v The Queen [2011] HCA 39 , 244 CLR 120 has affected what I have said earlier about the seriousness of an offence of break, enter and steal and aggravated in the present circumstances, when compared with other offences which carry standard non-parole periods of five years. To make matters clear the particular form of offence committed by this offender is of less seriousness than many other offences under s 112(2) which also carry the standard non-parole period of five years.

1. I turn to the circumstances of this offence. The offender was serving a sentence for a similar offence. He was released two days before committing the offence for which he must now be sentenced. He broke into premises in Erskineville knowing that there were people inside. There were four people inside, all asleep, at about 7 o'clock on a Sunday morning. The offender, probably using a screwdriver that he had in his possession, forced his way through the front door. He then entered the bedroom of one of the residents, her boyfriend was staying with her and he chased the offender outside. He was stopped, police were flagged down and he was searched. He was found to have in his possession two computers, a blackberry phone, personal digital assistant and some cash. They had all been taken from the premises.

1. Further searching revealed a digital camera and a jewellery bag containing some silver coins and more cash. All of these items had been taken from the premises that the offender had just broken into. He was arrested and taken back to the police station where he has remained in custody ever since.

1. As well as the offence for which he must be sentenced, he asked me to take into account an offence of possessing a housebreaking implement. That was a green handled screwdriver found in his possession when he was arrested. Quite why that appears on a form 1, I do not understand. I want to make it quite clear he will not get anything extra because of that matter being on the form 1, it is so closely associated with the substantive offence that it would be quite unfair to increase his sentence because of the matter on the form 1. I encourage the Crown in future not to bother doing the unnecessary.

1. The offender has a very dysfunctional background. It is set out in a psychological report, prepared not for this matter but for the earlier matter which saw the offender sent to gaol. It reveals that he received little support from his parents as he grew up. He was mostly free to do whatever he wanted with one qualification that he was belted by his father if his father learnt of any wrongdoing. Domestic violence appears to have been commonplace in the family to the extent that his mother finally left his father when the offender was 13 due to his constant physical abuse of her. Following this he was expelled from school and began to use drugs. He was only 14 years of age when he was convicted of his first criminal offence and by the age of 16 had begun to establish a criminal career.

1. He is now 40 years of age and has spent half his life in gaol. His criminal history is lengthy and comprehensive. He is of course by now institutionalised. He told the psychologist who prepared the report for the earlier matter that he was anxious and that these feelings were more severe when he was out of gaol. He clearly has limited ability to conduct himself appropriately whilst out of gaol because of the lengthy time he has spent in gaol. That is a terribly sad circumstance to relate.

1. His physical health is not good. He has had his spleen removed as well as his gallbladder and he has been diagnosed with diabetes and is now insulin dependant. A motor vehicle accident left him with significant injuries including the amputation of one of his toes and injuries to his genital area. The earlier report says that he continues to experience pain. There is no suggestion in that report that there is anything likely to change in the future. It is probable therefore that he continues to experience pain as a result of the injuries he received in the motor vehicle accident to this day.

1. The circumstances of his release and offending on this occasion are worthy of mention. He was due to get out on parole on 1 November 2011. It was anticipated that that would happen and so arrangements were made for him to go to a methadone clinic shortly upon his release from custody. However, his actual release was delayed by some 12 days and by the time he got to the methadone clinic his admission had been cancelled. I expect that those who run the clinic just formed a view that he was not going to turn up. Of course he was not able to turn up because he was still in custody. In those circumstances he decided to medicate himself and in those circumstances he committed the offence for which he must now be sentenced.

1. He is not the sort of person that became addicted to drugs as an adult. Such a person can clearly only have himself or herself to blame if their use of drugs turns into an addiction. Adults know full well the risks that drug use carries with it but the offender was not an adult when he commenced to take drugs. His moral culpability is therefore significantly diminished. It is much less his fault that he has been addicted to drugs and has found that addiction difficult to overcome.

1. The ultimate purpose of sentencing is to protect the community. In this case there are three particular areas which I look at in attempting to achieve that objective. The first is general deterrence. These sorts of offences are committed regularly by drug addicts who need to obtain money to satisfy their expensive addictions. The second aspect concerns preventative detention. The offender has been involved in on going regular offending such that there is a continuing attitude of disobedience of the law. Within the constraints mentioned by the High Court in both of the decisions (Veen v R (No1) 1979 143 CLR 458, Veen v R (No2) 1988 164 CLR 465 )the need to protect the community through imposing a preventative sentence which carries with it a component of preventative detention is appropriate in this case.

1. But working in exactly the opposite way is the third aspect of protecting the community which I take into account and that is the need to rehabilitate the offender. It is doing nothing to protect the community to release the offender without substantial lengthy and ongoing support. Without that I am confident that the offender would simply re-offend quickly as he did on this occasion and harm further members of the community and see himself back in gaol soon after release.

1. Many people have spoken about the way in which the various ways in which judges seek to protect the community and work in opposite directions. General deterrence and preventative detention work one way but rehabilitation in this case works the other. The offender does need close, indeed extremely close support upon his release. He needs, prior to his release on parole, experience in the community through programs such as work release. He needs, whilst in custody, intensive drug rehabilitation programs such as the Ngara Nura program, a program I understand that he has been accepted into.

1. Without corrective services spending more time with this offender than most others in the criminal justice system, I can guarantee the community will be further harmed. Because of the offender's need for rehabilitation there is obviously a need for an extended period of supervision on parole. The further matter justifying the finding of special circumstances in the offender's favour is that this sentence is virtually wholly cumulative on the sentence the offender was serving when he was released from custody in November last year.

1. Ultimately, however, a lengthy sentence must be imposed upon the offender. His offence was serious, involving entry into the bedroom of one of the victims of the offence. It comes as the culmination of a long period of similar criminal activity and the offender needs to be made aware, as much as anyone else, that his conduct simply cannot continue to be tolerated.

1. Some comparison was made in the course of submissions both from Mr Cruikshank and the Crown with the sentence imposed upon the offender, on an earlier occasion, for an offence which is said to be more serious. That is not the right approach to be taken to sentencing an offender. A judge does not look at earlier sentences imposed upon a particular person and decide whether the offence with which the judge is dealing is more or less serious and go up and down using other sentences imposed upon that person as a starting point. I will not do what I was implicitly invited to do in this case.

1. The offender is sentenced to imprisonment. I set a non-parole period of four years to date from 13 November 2011 and a head sentence of seven years. The offender will thus be eligible to be released to parole on 12 November 2015.

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Decision last updated: 22 November 2013