R v Ivers

[2019] NSWDC 428

District Court

New South Wales

Medium Neutral Citation:	R v Ivers [2019] NSWDC 428
Hearing dates:	29 April 2019; 02 August 2019
Date of orders:	02 August 2019
Decision date:	02 August 2019
Jurisdiction:	Criminal
Before:	Weinstein SC DCJ
Decision:	I convict you of one count of enter dwelling house with intent to commit a serious indictable offence in circumstances of aggravation.  After a reduction of 20% for your plea of guilty, I sentence you to a term of imprisonment consisting of 2 years, 7 months and 6 days, commencing from 20 March 2018, with a non-parole period of 1 year, 9 months and 15 days. The head sentence will expire on 25 October 2020. You will be entitled to be released on parole on 3 January 2020.
Catchwords:	SENTENCING – enter dwelling house with intent to commit a serious indictable offence in circumstances of aggravation (ie in company) – aggravating factors including breach of parole, record of previous convictions – special circumstances found
Legislation Cited:	Crimes Act 1900 (NSW) (the Crimes Act), ss 111(2), 117 Crimes (Sentencing Act) 1991 (NSW), ss 3A, 21A, 44(2)
Cases Cited:	Muldrock v The Queen (2011) 244 CLR 120 Markarian v The Queen [2005] HCA 25 Veen v The Queen [No 2] (1988) 164 CLR 465
Category:	Sentence
Parties:	Regina (Crown) Ivers (Offender)
Representation:	Counsel: Mr Howell (Ivers)   Solicitors: Mr Freelander (Crown) Mardini Defence Lawyers (Ivers)
File Number(s):	2017/384883

Judgment

The Offence

1. The offender has pleaded guilty to one count of enter dwelling house with intent to commit a serious indictable offence in circumstances of aggravation (ie in company), contrary to section 111(2) of the Crimes Act 1900 (NSW) (the Crimes Act). The maximum penalty for this offence is 14 years imprisonment. There is no standard non-parole period.

2. There is also a matter to be dealt with on a Form 1, namely an ex-officio count of larceny contrary to section 117 of the Crimes Act, which the offender has asked me to take into account.

Agreed Facts

3. The Agreed Facts are set out in Exhibit 1 before me. They are as follows. On Thursday 7 December 2017 Gary Pinshaw, Carmel Pinshaw and their two children were at their residence at Bunyula Road, Bellevue Hill, a free standing home that is two storeys with four bedrooms. At the front of the property is an enclosed garage and access gate.

4. At approximately 11:00pm on 7 December 2017 the victims fell asleep in their respective bedrooms all located on the second floor. Carmel Pinshaw’s motor vehicle, a 2017 Land Rover Discovery, was parked inside the garage.

5. Between 10:00pm on 7 December 2017 and 5:50am on 8 December 2017, the offender, Ben Ivers, and an unknown co-accused, arrived outside the premises, opened the front access gate and entered the southern end of the property. Either the offender or the co-accused picked up a small yellow and grey plastic children’s chair and placed it in the path of the gate to prevent it from closing.

6. The offender walked along the side of the property, walking past the front door and into the backyard. He entered the house through an open casement window leading to the kitchen area on the ground floor. The offender then accessed four rooms on the ground floor including the kitchen/living room, hallway, play room and study room.

7. A number of items belonging to the victims were stolen by the offender and co-accused. The property stolen included:

1. A brown laptop bag containing a Lenovo laptop valued at approximately $1000;

2. A grey Apple notebook laptop valued at approximately $1000;

3. A black Apple iPhone 6 valued at approximately $600;

4. A car key for a 2017 Land Rover Discovery;

5. A hard case luggage bag containing various financial documents, identity documents and miscellaneous property in the name of Mr Pinshaw and Mrs Pinshaw;

6. A purse containing identity documents in the name of Mrs Pinshaw and an unknown amount of cash;

7. A number of Westpac Visa, American Express and Mastercards in the name of Mrs Pinshaw; and

8. A navy bag containing women’s Nike shoes and house keys with a garage receiver attached to the key ring.

8. The offender then left the property and drove away with the co-accused in a white hatchback motor vehicle.

9. At approximately 5:50am on 8 December 2018 a white hatchback Volkswagen Golf entered the driveway of a business plaza in Young Street, Waterloo, at high speed. The offender and co-accused were seen to exit the vehicle, access the boot and throw various items into a bin. The motor vehicle then exited the drive way and travelled away from the premises. This was also captured on CCTV.

10. Police were contacted and attended the business plaza in Waterloo. A number of items were recovered by police from the bin, including:

1. NSW and South African Drivers’ Licenses in the name of Mr Pinshaw;

2. Three Westpac credit cards in the name of Mr Pinshaw;

3. A Qantas Frequent Flyer card in the name of Mr Pinshaw;

4. A Land Rover Discovery key belonging to the victim Mrs Pinshaw;

5. A remote garage door fob used to access the front garage door of the premises at Bunyula Road;

6. Financial documents in the name of Mr Pinshaw;

7. A brown and blue man’s wallet;

8. An identity card in the name of Mrs Pinshaw; and

9. A number of other miscellaneous property.

11. Mr Pinshaw contacted police on the morning of 8 December 2017 to report the incident and an investigation commenced. Forensic examination of the premises at Bunyula Road was conducted, and the offender’s fingerprints were found on the inside and outside of one of the casement windows.

12. On 9 December 2017, the same hatchback Volkswagen Golf referred to above was stopped by police for an unrelated reason. The vehicle was forensically examined and a profile matching the accused’s DNA was found on the inside door handle of one of the doors and on various items inside the vehicle.

13. At about 10:00am on 20 December 2017, police attended the offender’s home address in Oxford Street, Cambridge Park. The offender was placed under arrest and conveyed to Penrith Police Station. The offender participated in an ERISP during which he told police that:

1. He had never been to the premises at Bunyula Road, Bellevue Hill and didn’t know why his fingerprints would be there; and

2. That on the evening in question he was driving around in a white hatchback with two other persons but they did not go to either Bellevue Hill or Waterloo.

The Evidence

14. In addition to the agreed facts set out in Exhibit 1, Exhibit 2 is the Crown Bundle. It consists of:

1. The indictment;

2. The Form 1, which sets out one charge that between 7 December 2017 and 8 December 2017 the offender did steal the property of Gary Pinshaw to the value of between $2000 and $5000;

3. The Agreed Facts;

4. The offender’s criminal antecedents, which consist of a large number of offences dating back to 1999, some of which are break and enter-related offences;

5. The offender’s custodial history, which is extensive;

6. A Breach of Parole Report which includes the following details:

1. The offender was serving a sentence for ‘aggravated break and enter with intent – in company; take and drive conveyance without consent of owner; assault police officer in execution of duty without actual bodily harm (x2); break and enter house etc. steal’. The offender was sentenced to an aggregate term of 4 years 3 months to commence on 13 August 2014 and to expire on 12 November 2018, with a non-parole period of 2 years 3 months set to expire on 12 November 2016. The earliest day on which the offender was eligible to be released was 12 November 2016. The State Parole Authority determined that the offender should be released on parole no later than 30 November 2017. There have been some submissions about the reason why the offender was not released earlier, which I take into account.

2. The report authored by Community Corrections Officer Tracey Robinson dated 30 April 2018 notes that:

1. The offender was released from custody on parole on 28 November 2017. There were a number of conditions related to that release, namely:

2. The offender must not use or be in possession of a prohibited drug or substance, except those that have been prescribed for the offender and must at the direction of the officer undertake testing for alcohol and/or drugs where facilities are available.

3. The offender must also undertake and maintain AOD programs or counselling if directed to do so. If such a direction is given, the offender must authorise in writing that his treating health services provider make available to the officer, a report on his medical and/or other conditions at all reasonable times. The offender must refrain entirely from gambling and must, if so directed by the Officer, seek assistance/counselling in controlling his gambling.

4. There were two breaches of parole – one when he was arrested on 20 December 2017 for these offences and one on 14 December 2017, when the offender voluntarily disclosed he had used ice on one occasion.

5. The plan says that ‘given that Mr Ivers failed to adapt to normal lawful community life and his subsequent reoffending, Community Corrections recommends that his parole order be revoked’.

I note that the breach of parole is a matter of aggravation, as it reflects an abuse of the freedom granted by taking the opportunity to further offend.

3. This recommendation was supported by Patsy Menezes, Unit Leader at Penrith Community Corrections.

7. A State Parole Authority – Response Memo which notes that the case of Mr Ivers was before the State Parole Authority on 12 November 2018. It states that at the Downing Centre District Court on 2 November 2018, the matter was adjourned to 24 June 2019, and that the State Parole Authority noted that the balance of parole expires on 24 November 2018.

15. Exhibit 3 is a defence bundle. It consists of 8 tabs.

16. At Tab 1 there is a psychological report of Mr Sam Borenstein dated 20 April 2019. He says that Mr Ivers was interviewed by way of audiovisual link (AVL) on 18 April 2019, and that he previously assessed Mr Ivers on 5 March 2010 and prepared a report dated 6 March 2010. He says that Mr Ivers’s criminal history is directly related to Substance Use Disorder, which has included marijuana since age 14, heroin since age 16 and ice since age 27. Mr Ivers is also a social consumer of tobacco and alcohol. He occasionally used Xanax, and in 2010 and 2016 used methadone, which Mr Ivers still takes, at least at the time of this report, on a small 5 ml dose as well as Avanza, an antidepressant which he has taken since 2014.

17. Mr Ivers has a history of engaging in criminal behaviour since the age of eight when he fell into a group of older boys described as negative influences on him. It notes that Mr Ivers is the only one in his family who uses drugs, and that he understands that ‘the only way forward is for him to participate in a long term inpatient program of the sort conducted through Odyssey House’. Mr Borenstein suggests that in addition to participating in the Odyssey House Program, Mr Ivers will need to participate in the 12 Step or NA program over many years to ensure he does not relapse into substance misuse. He observes that ‘the road ahead for Mr Ivers will be difficult, and he will need to maintain his current level of motivation, and desire to be ‘normal’, which together with the support of Corrective Services and Odyssey House, the likelihood of success will be significantly increased’.

18. At Tab 2 there is a letter from Kerry Lynch of Odyssey House dated 9 April 2019 which notes that the offender had been deemed suitable to enter Odyssey House and sets out a number of conditions relating to entry into the Odyssey House Program. I observe that on 29 April 2019 I gave Mr Ivers bail to attend a program at Odyssey House. I note that he has given some evidence before me today which goes someway to explaining the difficulties he had at Odyssey House. That attempt at rehabilitation was unsuccessful. One can put it no higher or lower than that.

19. At Tab 3 there is a reference from Susan Coudounellis. Ms Coudounellis is the mother of Mr Ivers. She notes that the offender has been periodically incarcerated since the age of 10, and that he has been badly influenced by groups of older friends who have encouraged him to commit increasingly serious crimes. She suggested that her son should not be shown any compassion for the crimes he has committed, but asks that I consider ‘any available long term treatment options for my son outside of a Correctional Centre setting as I truly believe with all my heart that with intense support’ he ‘can put his life of crime behind him’.

20. At Tab 4 there is a reference from Rebecca Drake. Ms Drake is Mr Ivers’s sister. She states that she has a ‘very strong bond’ with her brothers, even though they have been separated over the years as a result of Mr Ivers’ incarceration. She says that his criminal record does not show that he is a ‘loving, generous and funny person’. She notes that Mr Ivers has told her that he ‘is just tired of what he has done. He is tired of how much drugs have impacted him and he just wants to rehabilitate to the best of his ability’. I note that there is some evidence before me of that Ms Drake suffers from a terminal illness.

21. At Tab 5 there is a reference from Linda Ivers, Mr Ivers’s aunt. She notes the pain and suffering that Mr Ivers’s parents have been through over the years and the many attempts to secure support. She recommends getting him further assistance with rehabilitation and notes that he has a ‘very supportive and loving immediate family’.

22. At Tab 6 there is a reference from Nicholas Ivers, Mr Ivers’s brother. Nicholas Ivers notes that he loves his brother and has been visiting him along with the rest of the family up until the last occasion when he was apprehended by the police. He observes that while he will continue to be there for his brother in the future, but that he is also ‘upset and angry with him, that time after time he continues to do the wrong thing and land back in the same place’. He notes that his anger and frustration stems from the pain that Mr Ivers has put their parents through. He acknowledges that Mr Ivers’s behaviour was wrong and understands that his behaviour cannot go unpunished, but he hopes that the offender will get specialist treatment to ‘help combat his drug abuse’.

23. At Tab 7 there is a Letter of Apology from Mr Ivers. He accepts full responsibility for his actions, and says that he has walked around feeling ‘guilt and sorrow for the victims I have hurt. Words couldn’t explain if this happened to my family and what I would do’. He notes that he has been in and out of trouble his whole life and that the problem is ‘not anyone’s fault but mine’. He says that he has seen loved ones hurt, pass away and that now his sister, who he considers to be his best friend, is going through treatment for cancer whilst he is in prison. He believes that drugs have been the major problem in his life and that he would like to turn his wrongs into rights and for people to be proud of him. He states ‘I am 32 and very ashamed, embarrassed and angry at myself for all the pain I have caused to everyone’.

24. I note that the offender gave very similar evidence before me today and expanded on the closeness of his relationship with his sister.

25. At Tab 8 there is a Letter of Apology to the Pinshaw family from the offender. It reads ‘My name is Ben Ivers and I am the person who came into your house and stole your property. This letter was one of the hardest things I have ever had to do. I am so sorry for causing you all this pain and suffering. I want you to know that I am deeply sorry from the bottom of my heart. I would ask you to forgive me because ever since that night I have been I’ve been living in guilt for the pain and suffering I’ve done to your family. I accept all judgments I’m given from the Judge on your behalf. Thank you for accepting my apology letter’.

26. Exhibit 4 is a Sentencing Assessment Report (SAR) from Marco Battaglia, Community Corrections Officer, dated 24 April 2019. It notes that Mr Ivers is supported by his family and has struggled to secure employment given his prior periods of incarceration.

27. With respect to factors related to the offending, Mr Battaglia says that this offence is consistent with an ‘entrenched pattern of property related offending characterised by varying degrees of aggravation and underpinned by his drug use and peer association’. All Mr Ivers’s friends and acquaintances were involved in drug taking and associated anti-social behaviours. Mr Ivers told Mr Battaglia that he was preoccupied with getting money for drugs at the time of the offending, and that he was heavily intoxicated on ice and heroin at the time of the offence, and that he had not slept for three days, during which time he was consistently using ice and heroin. Mr Ivers had also been abusing prescription medication during this time.

28. Considering his responsivity, Mr Ivers noted that ‘he felt bad about the offending and deserved to get caught’. The SAR notes that before being released on parole Mr Ivers was prescribed Avanza, which he was not taking as prescribed whilst on parole. Since returning to prison, Mr Ivers has become compliant with his medication regime.

29. Mr Ivers stated that his mental health issues relate to his being a victim of childhood sexual abuse which remains untreated and which triggered his introduction to illicit substances. He gave evidence about these matters today which was not challenged by the Crown.

30. The SAR notes that Mr Ivers is willing to undertake a residential rehabilitation program and willing to undertake community service work. However his capacity to complete any order would be dependent on his admission into Odyssey House’s residential treatment facility. Mr Ivers committed the index offence (for which he is to be sentenced today) just three weeks into his fourth period of parole supervision. Mr Ivers’s response to supervision during these numerous periods of parole was unsatisfactory due to his ongoing drug use, failure to engage with drug and alcohol intervention and re-offending within a short period of time upon his release from custody.

31. Mr Ivers was assessed as a medium-high risk of re-offending according to the Level of Service Inventory – Revised (LSI-R). Accordingly, the report notes that if the court were to make a supervised order, Mr Ivers would be required to report to a Community Corrections Officer every week and receive home visits from the officer every eight weeks.

32. The report concludes that Mr Ivers was assessed by Community Corrections as suitable to undertake community service work, and that Community Corrections can provide the equivalent of up to 21 hours of work per month.

33. Exhibit 5 is an updated psychological report from Mr Borenstein dated 21 June 2019, which was tendered today. Mr Borenstein re-interviewed Mr Ivers on 20 June 2019. Mr Ivers was then participating in the Odyssey House inpatient program, where he had been a resident for six weeks. He said that it had been tough. Mr Ivers had apparently kissed a female, was discharged, completed an Honesty Sheet and immediately re-inducted into the program. He was off the Methadone program and taking Avanza every day. Mr Ivers was struggling with the intensity of his emotions since coming off Methadone, and had been substance-free for at least six weeks. He felt more healthy and normal but was experiencing significant mood fluctuations.

34. Mr Ivers described to Mr Borenstein his struggle with ‘breakthrough memories’ of being sexually abused at age 12 while at Father Riley’s Farm, to which he was ordered to attend by a court whilst a juvenile. After three months there he was abused by a roommate. He noted that he did not tell Mr Borenstein about this when previously interviewed by AVL on 18 April 2019 because he found it too embarrassing. He apparently suffered both psychological and physical injuries as result of the abuse. I note here that it is entirely understandable why Mr Ivers had not told Mr Borenstein about the breakthrough memories the last time he met Mr Borenstein.

15. Mr Ivers did not disclose this abuse until approximately age 20, when he told one of his best mates about it, who was unsympathetic. As a result, Mr Ivers said he went back into his shell and used drugs. Mr Ivers said that following the abuse he ‘just hated the world’ and eventually started using heroin. He told his parents of the abuse in 2016. His current partner is unaware of the abuse.

16. Mr Borenstein observes that Mr Ivers will require considerable individual psychological therapy to address the effects of this abuse, which in his opinion is a significant causal factor in his history of Substance Use Disorder. I accept this opinion, which does not, of course, explain away the offender’s criminal history.

Submissions made on the day

37. The Crown previously submitted that in all the circumstances, the court would discount the accused’s sentence in the amount of 10%, but today he conceded said that an appropriate discount would be in the range of 15-20%. The accused submits that he should have a 20% discount, as his plea of guilty was entered in the District Court following his arraignment but 3 months before his trial.

38. As to time served in custody, it is noted by the Crown that the accused has spent 157 days in custody solely referrable to this offence, after serving the balance of his parole following revocation. I have been helpfully assisted on the question of the revocation of parole by both Mr Freelander and Mr Howell.

39. They both agree that the sentence must commence between 20 December 2017 and 24 November 2018 and that I have discretion as to the accumulation of sentence, if any. Both agree that parole was reached primarily because of the offence before the court today.

40. The sentence today must reflect the totality of the criminality. There is some doubt as to whether there should be any accumulation at all. I have considered the arguments made and propose to commence the sentence on 20 March 2018.

41. As to objective seriousness, the Crown submits that the offence is reasonably serious, and that the accused and his co-offender targeted the property searching for valuables. The accused submits that the offence is at the lower end of the range of this type because it was committed overnight when there was little opportunity of confrontation with the occupants of the premises, that his intention was to commit larceny rather than a more serious indictable offence, that the circumstance of aggravation (in company) is less serious than circumstances of aggravation such as being armed with an offensive weapon, for example, that the instant circumstance of aggravation is of limited weight because it had no effect on the occupants of the premises who slept through the offence and that the offence was only to a limited degree ‘planned’.

42. As to aggravating factors pursuant to section 21A(2) of the Crimes (Sentencing Act) 1991 (NSW) (the Sentencing Act), the Crown submits that the two factors present in this case are the offender’s record of previous convictions, and that the offender was subject to conditional liberty at the time of the offence. The accused candidly submits that there is an additional aggravating factor, that the offence was committed upon the victims’ home, which I accord little weight in all the circumstances in any event. I note that these are aggravating factors on sentence, but do not aggregate the objective seriousness of the offence for which the offender has pleaded guilty.

43. As to mitigating factors, the Crown submits that the accused’s case would not overwhelm the objective gravity of the offence. The Crown says that there is limited evidence of remorse of the offender, and that in the offender’s circumstances of his prior criminal history, his failed attempts at rehabilitation, and his institutional misconduct offences, I would be cautious about the offender’s prospects of rehabilitation. Finally, the Crown says that the offender’s drug and alcohol use does not mitigate the offending conduct, which is so.

44. Mr Howell, for the accused, says that the offender is remorseful and has accepted responsibility for the offence and acknowledged the harm caused by his actions. He submits that the offence was committed to support his use of prohibited drugs and notes that since the age of 19, he has spent only 16 months or so in the community. He is the victim of childhood sexual abuse and has never received counselling or other interventions with respect to this trauma, which he suggests demonstrates the dysfunctionality of his childhood. He notes that the offender proposes to live with his very supportive parents upon his release. I note that the offender led evidence to that effect today.

Plea of Guilty s 22

45. I intend to apply a reduction of 20% after the otherwise appropriate sentence has been determined to reflect the offender’s early plea of guilty.

Form 1

46. As I have said, the offender has signed a Form 1 document which lists a further offence which the offender asks me to take into account and I do so in accordance with the principles set out in the guideline judgment.

Objective Seriousness

47. As to objective seriousness, I take into account the Agreed Facts, and the fact that the crime was committed in circumstances of aggravation. I also take into account subjective factors, including the offender’s age, his drug addiction, the opinion of Mr Borenstein that his heretofore undisclosed history of sexual abuse is likely to be causally related to his Substance Abuse Disorder, and the offender’s family support.

48. I note the maximum penalty prescribed for this offence, which is 14 years. This represents the legislature’s assessment of the seriousness of this offence. This crime of breaking and entering into a dwelling with an intent to commit a serious indictable offence in company was a calculated and premeditated act. This was not an opportunistic offence. I note that the offender has said that he was motivated to steal goods to support his long-standing drug habit. I find that the circumstances of the offence are not so grave as to warrant the maximum penalty, but I am bound to consider where the facts of the particular offence and the offender lie on the spectrum that extends from the least serious instance up to the worst category. Taking all these matters into account, both objective and subjective factors, I find that this offence is below the mid-range of objective seriousness.

49. I note that the offender has a lengthy criminal history for similar offences, and that he was on parole at the time that this offence was committed. The offender’s criminal record is not one that would allow the court to extend him any leniency. His record shows a continuing attitude of disobedience on the part of the offender and retribution, deterrence and the protection of society are relevant factors to be considered in the sentencing exercise.

50. The principle of general deterrence applies here, as the community expects persons who are convicted of such crimes to be dealt with appropriately.

51. Specific or personal deterrence applies, as the offender has a prior criminal record which manifests a continuing attitude of disobedience, such that more weight should be given to retribution, personal deterrence and the protection of the community.

52. As to consistency and statistics, whilst I acknowledge that consistency in sentencing is appropriate, what is necessary is the application of legal principles and not numerical equivalence. Statistics indicate nothing of the individual characteristics of the matters by way of objective seriousness or subjective factors. They are, as is often said, a blunt tool of limited assistance.

SENTENCING APPROACH

53. The purposes of sentencing are expressed in s 3A of the Sentencing Act. They include: ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community.

54. As the High Court said of s 3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

The purposes there stated [in s 3A] are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law. There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen [No 2] in applying them.

(footnotes omitted)

55. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of the offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty, any standard non-parole period and the factors referred to in s 21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances: Markarian v The Queen [2005] HCA 25.

56. Matters adverse to an offender must be proved beyond reasonable doubt whilst those favourable to an offender need only be proved on the balance of probabilities.

Plea of Guilty – s 21A(3)(k)

57. I have already noted that I accept that there has been an early plea of guilty, and I find that the offender is entitled to a discount of 20%. I will indicate the quantitative effect of that discount on the sentence later in this judgment.

Remorse – s 21A(3)(i)

58. The offender has demonstrated some insight into his offending behaviour, but it must be seen in the context of his reoffending whilst on parole and his criminal history on one hand, and his significant addiction and psychological issues on the other.

59. I am satisfied that the offender has expressed some remorse, albeit broad and limited.

Rehabilitation – s 21A(2)(h)

60. I am not satisfied that the offender has made significant inroads into his rehabilitation since his incarceration. The court hopes that Mr Ivers will find the strength to be abstinent, but his failed efforts to date cannot be taken into account as a mitigating factor. I do not take them into account as an aggravating factor. I note that the SAR assessed Mr Ivers at medium to high risk of reoffending.

sentence

61. I have taken into account the various purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) that I referred to earlier in this sentence.

62. Having had regard to s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and having considered all possible alternatives, I am of the view that no penalty other than imprisonment is appropriate.

63. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, and having considered all of the matters I have referred to in this sentence, I will impose a sentence of imprisonment.

64. I note that I have backdated the sentence to account for the period you have spent in custody and have allowed for some accumulation. I have allowed 90 days of the 340 days you spent in custody for the breach of parole, and backdated the balance of 250 days.

65. For the offence of enter dwelling house with intent to commit a serious indictable offence in circumstances of aggravation, I sentence you to a term of imprisonment of 3 years 3 months, discounted by 20% for your plea of guilty.

66. Given the terms of s 44(2) of the Sentencing Act, I indicate that my reasons for deviating from the standard non-parole period in my finding of special circumstances, being Mr Ivers’s unresolved addiction issues, his unresolved and untreated sexual abuse (both of which will require him to have close supervision) and the fact that his sister now has Stage 3 cancer, likely contributing to his psychological state, and which will reduce the non-parole period from what otherwise have been 75% to 68.8%.

SENTENCE

67. I convict you of one count of enter dwelling house with intent to commit a serious indictable offence in circumstances of aggravation.

68. After a reduction of 20% for your plea of guilty, I sentence you to a term of imprisonment consisting of 2 years, 7 months and 6 days, commencing from 20 March 2018, with a non-parole period of 1 year 9 months and 15 days. The head sentence will expire on 25 October 2020. You will be entitled to be released on parole on 3 January 2020.

69. It is hoped that you will access drug and rehabilitation services and psychological services whilst you are incarcerated to address your addiction and psychological issues. You are fortunate indeed to have such a loving and supportive family.

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Decision last updated: 21 August 2019