R v Harper

[2021] NSWDC 528

District Court

New South Wales

Medium Neutral Citation:

R v Harper [2021] NSWDC 528

Hearing dates:

4 June 2021

Date of orders:

9 June 2021

Decision date:

09 June 2021

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

3 years imprisonment with a non-parole period of 12 months

Catchwords:

SENTENCING — Aggravating factors — Breach of conditional liberty — Home of victim or any other person

SENTENCING — Subjective considerations on sentence — Mental illness — Special circumstances

SENTENCING — Relevant factors on sentence — Multiple offences — Totality with respect to existing offences

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; HCA 37

R v MAK, R v MSK (2006) 167 A Crim R 159

R v Ponfield (1999) 48 NSWLR 327

Category:

Sentence

Parties:

Regina (Crown)
Keegan Harper (Offender)

Representation:

Solicitors:
Ms S Maine (ODPP)
Mr D Gibbons (Legal Aid NSW)

File Number(s):

2020/00239674

Publication restriction:

Nil

Judgment

1. The offender, Keegan Harper, 23 years of age, appears for sentence in relation to one offence of aggravated break and enter dwelling in company, an offence pursuant to s 112(2), Crimes Act 1900 (NSW). The maximum prescribed penalty for that offence is 20 years imprisonment. There is a prescribed standard non‑parole period of 5 years.

2. In respect of that offence, the offender pleaded guilty on 12 March 2021 at the Gosford Local Court.  Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%. 

3. The offender has been in custody since 17 August 2020, that is, his date of arrest.  He has spent no time in custody solely referable to this offence in circumstances where he has been serving sentences since that date. Firstly, an aggregate sentence of 3 years with a non‑parole period of 2 years to date from 17 August 2020 due to expire on 16 August 2022. Secondly, a call‑up of a suspended sentence, being a total term of 18 months with a non‑parole of 9 months also to date from 17 August 2020, which expired on 6 May 2021.  I will say more later in my remarks in relation to the commencement date for the sentence imposed today.

Agreed Facts

4. As at the date of the offence, the offender was 21 years old. There are three co‑offenders: Scott Frost, Abbey Davies, and Kane Po-Williams. 

5. The first victim is Alexander Borg, 40 years old.  The second victim is Chantelle Borg, also 40 years old.  Alexander and Chantel Borg lived in Holgate with their three children. Their property is a residential dwelling on acreage. 

6. During the afternoon of 27 January 2020, the offender and Abbey Davies departed the offender’s sister, Connie Cheadle Harper’s house in Wyoming in a vehicle driven by Matthew Plummer, the ex‑partner of the offender’s sister. The offender arrived at the driveway of the victims’ residence.  CCTV footage showed the offender and Abbey Davies walking down the driveway towards the house before returning a short time later, re‑entering the vehicle and driving back to Wyoming. 

7. The occupants Mr and Mrs Borg arrived home a short time later before leaving again at about 2 pm.  At this time, their house was locked and secured. 

8. Between about 2 pm and 3.30 pm on that same day, this offender, Frost and Davies again left Wyoming and drove to the victims’ residence, this time in a silver Holden Commodore being driven by Kane Po-Williams, a friend of Connie Cheadle-Harper’s current partner, the offender and Scott Frost.

9. Once at the address, this offender, Frost and Abbey Davies walked down the driveway and approached the residence. The driver, Kane Po Williams, remained in the vehicle, which was parked at the top of the driveway. A short time later, Abbey Davies returned and entered the vehicle. The co‑offender Frost remained in the vicinity of the property and essentially undertook the role of a look‑out. This offender forced the front door open and entered the house. A number of items were then stolen from the house. 

10. Whilst this offender and Frost were still within the vicinity of the house, the victims, Mr and Mrs Borg, returned home to find the silver Holden Commodore blocking entry to their driveway. At this time, Kane Po Williams manoeuvred the vehicle out of the driveway and drove away. Mr and Mrs Borg approached their house and noticed that the front door was wide open. The door had been forced open and damaged by this offender. Mr Borg got out of the vehicle and entered the house.  He discovered that the back door was also wide open. Upon a closer inspection, Mr and Mrs Borg discovered that property had been stolen from their house and items strewn across their bedroom floor. 

11. The stolen property included a small cream‑coloured safe containing passports, a black jewellery box containing approximately $4,000 worth of jewellery, a laptop, a camera bag containing a camera and lenses, a selection of handbags, a TAG Heuer watch valued at $10,000, and an Apple Watch.

12. At approximately 3.45pm on that same day, the occupant of a neighbouring property, Mr Price, saw this offender and Frost walking through his rear yard up the side of his house and towards the driveway at the front of his house.  He ran outside and called out to the offender and Frost, asking them what they were doing.  This offender and Frost did not reply, and continued walking up the driveway away from Mr Price. 

13. Mr Price put his shoes on and then ran up the driveway after this offender and Frost.  This offender ran through the bushes in his front yard.  The offender Frost continued walking up the driveway.  Mr Price took a photo of the offender Frost carrying some property.  Mr Price called out to Frost at the top of the driveway words to the effect of, “Mate, what’s going on?”  Mr Price caught up with Frost at the top of the hill and again inquired what he was doing.  The co‑offender Frost said words to the effect of, “Oh we were hiking we couldn’t find the road.” 

14. Mr Price saw his neighbour, Mr Borg, standing at the top of his driveway.  He called out to Mr Borg words to the effect of, “Are you looking for two guys?”  Mr Borg indicated that he was and that their house had been broken into.  This offender and the co‑offender Frost ran away from Mr Price and Mr Borg to the main road and entered the Commodore that was being driven by Mr Po-Williams. Mr Borg and Mr Price followed the vehicle, saw the registration of it and contacted police. 

15. A short time later, the daughter of Mr and Mrs Borg saw the silver Holden Commodore in Erina.  She followed the vehicle to Wyoming where she saw four people inside the vehicle.  The vehicle was then driven to a BP service station at Wyoming where Abbey Davies entered the service station and paid for fuel.  This offender, Davies and Frost walked away from the service station and Mr Po-Williams drove away. 

16. Three handbags and the safe were later recovered from bushes in the neighbouring property.  Items that were not recovered included the jewellery, the TAG Heuer watch and the Apple Watch.  Mrs Borg later found a black shirt in her bedroom that did not belong to anyone living at the house. 

17. CCTV footage from a Paroo Road residence shows this offender and the co‑offender arrive at the house and walk down the driveway.  CCTV footage from the BP service station at Wyoming a short time after the offence shows this offender and the co‑offender leave the service station.  This offender was clearly identifiable in the CCTV footage from the BP service station.  He is shown wearing the same clothing as was shown on the CCTV footage from Mr and Mrs Borg’s property.

18. Around 11.30 am on 17 August 2020, this offender was seen by an off‑duty police officer who was aware he was wanted for the offending.  This offender was then arrested.  He did not participate in an interview with police. 

19. Kane Po-Williams participated in an interview with police and made admissions to picking up Scott Frost, this offender and Abbey Davies from Wyoming, and driving them to Holgate while they committed the offence.  Mr Po-Williams denied any knowledge that this offender and the co‑offender were committing the offence. The Crown contends that this offender is criminally responsible in respect of the offence as part of a joint criminal enterprise. 

20. Those facts clearly disclose serious objective criminality.  This type of offence is a serious intrusion into the privacy of the homeowners, and no doubt causes them serious distress and inconvenience.  Both general and specific deterrence are important factors on sentence.

Assessment of objective seriousness

21. In assessing the objective seriousness of the offence, I have had regard to the guideline judgment of R v Ponfield (1999) 48 NSWLR 327, and I have taken into account the following factors:

1. The offence involved some planning in circumstances where the offender and his co‑offenders had been at the property earlier in the day.

2. Entry was gained to the property by damaging the front door.  Inside the house, items had been strewn across the bedroom floor.

3. The offence was committed in the company of the co‑offender Frost.  The Court notes that there are other available aggravating features that are objectively more serious; for example, deprivation of liberty and the use of corporal violence as well as the intentional or reckless infliction of actual bodily harm.

4. The serious indictable offence is larceny, which has a maximum prescribed penalty of 14 years.

5. The amount of property stolen was somewhere in excess of $14,000.

22. Having regard to those factors, I assess the objective seriousness of the offending as just below the middle of the range.

Aggravating factors

23. I am satisfied that the following aggravating factors are established. 

24. Firstly, that the offender was on conditional liberty at the time of the commission of the offence in circumstances where he was serving a suspended sentence of 18 months for an offence of assault occasioning actual bodily harm. The suspended sentence dated from 8 August 2018, due to expire on 7 February 2020. 

25. Secondly, the offence was committed in the homes of the victims.

Subjective circumstances

26. The offender is now 23 years of age.  He was 21 years old at the date of the offending. 

27. He has an adult criminal history commencing in 2017 when he was dealt with for an offence of drive whilst disqualified. He was fined. In that same year, he was dealt with for an offence of receiving motor vehicle parts and sentenced to a total term of imprisonment of 10 months with a non‑parole period of 8 months and 3 days. 

28. In 2018, he was dealt with for an offence of assault occasioning actual bodily harm. He received a s 12 suspended sentence. As I have indicated, that suspended sentence was called up and he has now served a non‑parole period of 9 months between 17 August 2020 and 16 May 2021. 

29. In 2020, he received an aggregate sentence for the following offences: assault occasioning actual bodily harm (domestic violence), dishonestly obtain property by deception, police pursuit, break and enter with intent, and steal from dwelling in company.  On appeal, the sentence imposed was a total term of 3 years with a non‑parole period of 2 years.  As I earlier indicated, that sentence dated from 17 August 2020.  The non‑parole period is due to expire on 16 August 2022.

30. Having regard to the offender’s criminal history, I am satisfied that it disentitles him to the leniency on sentence that would otherwise be available to a person of good character. 

31. The following material was tendered on behalf of the offender during the sentence proceedings:

• Exhibit 1 - Report of Ms Hubner dated 17 January 2021;

• Exhibit 2 - Letter from Sarah Fisher, the partner of the offender, undated;

• Exhibit 3 - Letter from David Fisher, the offender’s partner’s father, undated;

• Exhibit 4 - Letter from Keith Harper, the offender’s father, also undated;

• Exhibit 5 - Defence written submissions. 

32. The offender’s background is outlined in the report of Ms Hubner.  I note that this report was not prepared in relation to this offence but rather for other matters before the Local Court.  Ms Hubner assessed the offender on 18 December 2020 via AVL for a period of two hours. 

33. The offender reported that he is the youngest of two children and has an older sister.  His parents separated when he was two years of age, and his mother went on to have three daughters, aged 18, 13 and 11 years.  The offender reported to Ms Hubner that he believed his mother had a mental illness and was a polysubstance user when he was a child.  His parents’ relationship involved domestic violence, and they were involved in protracted Family Court proceedings.  The offender and his sister were placed into the sole care of his father, and he did not see his mother again until his mid‑adolescence.

34. The offender lived on the Central Coast between 2 and 16 years of age with his father, who he described as his “best mate” and a source of support and guidance throughout his life, despite his father’s issues with alcohol consumption.  The offender reported that he left his father’s home at 16 years of age to reside with friends. 

35. As an adolescent, he gravitated towards peers with whom he experimented with drugs and committed crimes. This resulted in short periods in juvenile detention. Between 14 and 15 years of age, the offender reported he was the victim of a sexual assault perpetrated by a correctives officer in juvenile detention. 

36. The offender reported that his father had a heart attack in March 2019, and he moved back to Gosford to live with him.

Education and employment

37. The offender attended Kanwal Public School for kindergarten, Toukley Public School for Year 1, Gorokan Public School for Years 2 and 3, Peats Ridge for Years 4 and 5, and Wyoming for Year 6. He reported experiencing social and behavioural dysfunction during this time, and this continued into high school. 

38. He attended Erina High School for Year 7 and half of Year 8, when he was expelled for fighting. He reported he had developed “anger problems” and regularly swore at his teachers, threw chairs around the classroom and fought with other students. Following this, he was enrolled at a school for children with severely disordered conduct. He stated that he “didn’t want to be there” and decided to leave school at 14 years of age after being suspended for fighting with a teacher. 

39. He completed his schooling while in juvenile detention and was awarded the Record of School Achievement. He reported he has achieved several certificates while in juvenile detention including certificates in hospitality, food and beverage, bricklaying and sign art. 

40. The offender reported that he commenced a carpentry apprenticeship when he was 18 years of age and living with his mother in Bonnyrigg whilst on Supreme Court bail.  He completed 12 months of this apprenticeship before his employer terminated his training in November 2019.

41. The offender reported that his current partner was a school friend who works as a cleaner. He stated that she is a positive influence in his life and does not use drugs. He said he plans to work with his partner’s father upon release, and is considering returning to TAFE. 

Medical history

42. The offender reported an unremarkable medical history

Psychiatric history

43. The offender reported that he was diagnosed with ADHD at 10 years of age by a paediatrician who prescribed stimulant medications (Ritalin and Concerta), which the offender took for several years. 

44. At 14 years of age, whilst in juvenile detention, he was diagnosed with anxiety and depression and prescribed an antidepressant medication. He reported that at 16 years of age, he began to experience perceptual disturbances and hear voices however, he did not receive treatment for these symptoms. 

45. At 19 years of age, he was diagnosed and received treatment for bipolar disorder by a general practitioner. 

46. At 21 years of age, he reported experiencing an episode of major depression and had attempted to take his own life by swerving his car into a telegraph pole. 

47. In August 2020, he reported that he was diagnosed with depression again in custody and prescribed antidepressant medication.  He was taking this medication at the time of his assessment by Ms Hubner.

Substance use history

48. The offender reported using cannabis from 10 years of age and stated that he “loved” it because it mellowed him out.  He reported consuming alcohol heavily between 13 and 14 years of age but ceased drinking when he developed alcohol‑related health complications. 

49. He consumed ice from 14 years of age and reported that it gave him “energy”.  He consumed MDMA and cocaine from 15 years of age, and stated that MDMA helped him “forget” about his worries.  He stated that heroin made him “really out of it”, and reported beginning to use benzodiazepine from 16 years of age. 

50. He said that upon moving back to Gosford to live with his father in 2019, he reconnected with his antisocial peers and his substance use increased.  Between July 2019 and August 2020, he was consuming 7 grams of cannabis, half a gram of ice, and two to three points of heroin, and two to three Xanax tablets per day.  He said at the time he was worried and scared about his father’s ill health and “didn’t care” about his wellbeing. 

51. The offender reported that he has attended short periods of alcohol and drug counselling as an adolescent however, Ms Hubner noted that:

“this has done nothing to reduce his substance use due to limited motivation for change at that time.”

Assessment

52. In relation to personality testing, Ms Hubner noted that the offender’s “test results reflect either a ‘cry for help’ or an exaggerated negative evaluation of oneself or one’s life.”  She went on to say that:

“Although there does not appear to be a deliberate distortion of the clinical picture, his results should be considered cautiously.” 

53. The offender was assessed as having several antisocial personality traits and being prone to impulsive, self‑harmful and self‑destructive behaviours. 

54. In the opinion of Ms Hubner, at the time of the offending which was dealt with on appeal in December 2020, the offender possessed Cluster B (borderline and antisocial traits) and Cluster C (depressive and avoidant traits), personality pathology, and experienced the related problems of emotional dysregulation and polysubstance dependence. 

55. She noted that:

“the acute intoxicating effects of the cannabis, ice, heroin and Xanax that he regularly used around that time may have further contributed to his poor judgment and decision‑making.” 

56. As I noted, this report is not directly relevant to the offence currently before the Court. 

57. Ms Hubner noted that, as a teenager, the offender appears to have:

“…used substances to block and deal with painful memories and emotions associated with childhood trauma, relationship discord and other stressful life events.  In turn, his substance issues likely contributed to his emotional dysregulation and ongoing cycle of drug use and offending.” 

Treatment recommendations

58. In relation to treatment, Ms Hubner recommended that the offender consult with a GP or psychiatrist who can monitor his mental health and engage in individual counselling. 

59. Whilst in custody, Ms Hubner recommended that the offender engage in the RUSH and EQUIPS Addiction and EQUIPS Aggression programs.  She further recommended that the offender be referred to case management with Connections (Justice Health), Salvation Army services or other through‑care support programs. 

60. The offender also gave evidence during the sentence proceedings.  He told the Court that his father drank every day during his childhood, and was unhappy and verbally abusive towards him. The offender confirmed that he had attended many schools. He had seen a paediatrician at approximately 10 years of age for behavioural issues. He also confirmed that he was sexually assaulted by a juvenile justice officer, and is currently involved in court proceedings with respect to that matter. He gave evidence that he is currently medicated with an antidepressant.

58. Whilst in custody, he gave evidence that he has completed a hygiene course, laundry course, and he is enrolled in the EQUIPS Addiction and Foundation programs. 

59. He acknowledged a long history of drug use since 13 years of age.  He now accepts that drugs have ruined his life and intends to “turn away” from drugs upon release from custody. 

60. In relation to his future plans, he told the Court that he intends to work three days a week in his partner’s father’s roofing business and then attend TAFE two days a week to complete his carpentry apprenticeship.  He has just over two years to go with his apprenticeship. 

61. He told the Court his partner is drug‑free, he wants to start a family, and wants his children to see him as a role model. He told the Court he was deeply sorry and remorseful for his conduct. He described that he was “not in a good state of mind” at the time. His father had recently had a heart attack, his partner had left him, he had lost his job, and drugs returned to his life.

Other material tendered on behalf of the offender

65. The Court received a letter from the offender’s partner, Sarah Fisher.  She has been in a relationship with the offender for two years.  She outlined that she is not involved with drugs and is prepared to assist the offender upon his release.  He is very fortunate indeed to have the ongoing support of Ms Fisher. 

66. The Court also received a letter from Ms Fisher’s father, David Fisher.  He told the Court that he has employment for the offender upon his release. 

67. The Court also had the benefit of a letter from the offender’s father, Keith Harper. The letter indicates that he also remains supportive of the offender.

Submissions of the parties

68. The Crown relied upon written submissions supplemented by further oral submissions. 

69. Mr Gibbons, on behalf of the offender, also relied on written submissions supplemented by oral submissions. 

70. I have taken those submissions into account in determining the appropriate sentence.

The offender’s mental health

71. Having regard to the evidence of Ms Hubner, I am satisfied that the offender suffers from depression and has symptoms of post‑traumatic stress disorder. In those circumstances, I am satisfied that custody will be more onerous.

Remorse

72. Having regard to the offender’s evidence before the Court, I am satisfied that he has accepted responsibility for this offending and is remorseful.  I am hopeful that he now has a much greater insight into the impact of such offending upon the victims.

Relevance of the offender’s background

73. Whilst I accept the offender has had a difficult childhood, I am not satisfied it warrants a reduction in moral culpability on the basis of the principles in Bugmy v The Queen (2013) 249 CLR 571; HCA 37. However, I am satisfied it still remains relevant to the overall sentencing discretion.

Prospects of rehabilitation

74. Any view of the offender’s prospects of rehabilitation must necessarily be guarded given his long history of substance use and his previous offending. It does seem that the offender now has a much more positive attitude to his future. He wants to re‑engage with TAFE and remain drug‑free. I have no doubt that those goals will be tougher to achieve than the offender expects.

75. However, the Court is hopeful that he maintains his current commitment to leading a more positive life. At this stage, I am unable to find that he is unlikely to reoffend.

Parity

76. It is accepted, on behalf of the offender, that there is no direct parity to the co‑offender Frost in circumstances where this offender had a much more significant role in the offending, as it was this offender who entered the house and stole the property.

Special circumstances

77. It was submitted on behalf of the offender that he would benefit from a longer period on parole to assist with his mental health and drug use issues. It was submitted this warranted a finding of special circumstances. I accept that submission. 

78. A variation in the ratio between the non‑parole period and parole period will also be necessary because this sentence will be partially cumulative upon the existing sentences being served by the offender.

Totality and commencement date of the sentence

79. In circumstances where the offender is currently serving an aggregate sentence, I am required to consider the question of total criminality and then determine whether the sentence imposed today is cumulative or partly cumulative.

80. I have considered the facts for each of the offences that resulted in the aggregate sentence of 3 years with a non‑parole period of 2 years (Exhibit C). 

81. The aggregate sentence of 3 years was imposed in respect of five offences as follows:

1. Assault occasioning actual bodily harm (domestic violence) – An indicative term of 10 months.

2. Dishonestly obtain property by deception in the amount of $28,506 – an indicative term of 18 months.

3. Police pursuit – an indicative term of 14 months.

4. Break/enter with intent – an indicative term of 15 months.

5. Steal from dwelling in company – an indicative term of 14 months.

82. Having regard to the indicative terms nominated, it is clear there was a significant amount of concurrency adopted with respect to the imposition of the aggregate sentence. Also, that aggregate sentence was wholly concurrent with the sentence imposed for the breach of the suspended sentence, the total term of 18 months with a non‑parole period of 9 months dating from 17 August 2020. 

83. Having regard to those factors, I consider that the offender was dealt with leniently for that offending given the overall seriousness of the criminality.  In those circumstances, I propose to make the non‑parole period imposed today partially cumulative on that sentence. 

84. Mr Gibbons, on behalf of the offender, urged the Court not to impose a crushing sentence upon the offending that would destroy any expectation of a useful life after release. The Court was also reminded that the severity of a sentence does not increase in a linear fashion, but rather becomes more onerous as they are accumulated (see R v MAK, R v MSK (2006) 167 A Crim R 159). I accept those matters are relevant to the determination of the appropriate sentence and also the consideration of the question of accumulation.

Determination

85. In determining the appropriate sentence, I have had regard to the purposes of sentencing set out in s 3A, Crimes (Sentencing Procedure) Act 1999 (NSW).

86. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate pursuant to s 5(1), Crimes (Sentencing Procedure) Act 1999. 

87. I have had regard to the objective seriousness of the offence, the relevant prescribed maximum penalty, the prescribed standard non‑parole period in accordance with s 54B(2), Crimes (Sentencing Procedure) Act, and the offender’s subjective circumstances.

88. Mr Harper, in relation to one offence of aggravated break and enter dwelling in company, you are convicted. 

89. I sentence you to a non‑parole period of 12 months to date from 17 May 2022 and expire on 16 May 2023, with a balance of parole of 2 years to date from 17 May 2023 and expire on 16 May 2025. The total term of the sentence is 3 years to date from 17 May 2022 and expire on 16 May 2025. 

90. The starting term for that sentence was 4 years, which I have discounted by 25% for your plea of guilty. 

91. I direct your release to parole on 16 May 2023. 

92. I have found special circumstances and I have reduced the non‑parole period, taking into account the need for supervision upon release, and also because this sentence is partially cumulative on the sentence you are currently serving.

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Decision last updated: 05 October 2021