R v Jerkic, Ricky

[2017] NSWDC 317

District Court

New South Wales

Medium Neutral Citation:	R v JERKIC, Ricky [2017] NSWDC 317
Hearing dates:	29 September 2017
Date of orders:	29 September 2017
Decision date:	29 September 2017
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full-time custodial sentence. For orders see [85]
Catchwords:	CRIMINAL – SENTENCE – break, enter and steal property – Form 1 offences – taking and driving conveyance without the consent of the owner – dishonestly obtain advantage property by deception – offence committed whilst on parole – offences committed within private residences – limited planning – no force or threat against any victim – offences were not impulsive but opportunistic – consideration of the balance of parole to be served in the determination of non-parole period – offender to serve balance of sentence in Queensland following completion of non-parole period in NSW – 28 years old – lengthy criminal record in home state of Queensland – history of drug dependency – no finding of remorse – offender undertook a residential rehabilitation program while on parole – no mental health issues present – totality of sentencing – finding of special circumstances
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Attorney General’s Application (No 1) of 2002 (2002) 56 NSWLR 147 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Hammoud [2000] NSWCCA 540 R v Harris [2007] NSWCCA 130 R v Henry and Ors (1999) 46 NSWLR 346 R v Thompson and Houlton (2000) 49 NSWLR 383 R v Todd (1982) 2 NSWLR 517 Regina v Ponfield [1999] NSWCCA 422
Category:	Sentence
Parties:	Regina (Crown) Ricky Jerkic (Offender)
Representation:	Solicitors: Ms Gauld (DPP Solicitor) Ms Williams (Legal Aid Solicitor)
File Number(s):	2016/001688612016/00169011
Publication restriction:	Nil

SENTENCE

1. HIS HONOUR: The prisoner, Ricky Jerkic, appears today for sentence in relation to a number of offences. The first offences in time being committed on 29 May 2016 or thereabouts. The principal offence is an offence of breaking, entering and stealing property contrary to s 112(1)(a) of the Crimes Act 1900, which carries a maximum penalty of 14 years imprisonment. There is no standard non‑parole period.

2. There are two matters on a Form 1 attaching to that principal offence committed on 29 May 2016. Taking and driving a conveyance without the consent of the owner, which ordinarily if dealt with on indictment would carry a maximum penalty of five years imprisonment, and a second offence of dishonestly obtaining property by deception which, if dealt with on indictment, would carry a maximum penalty of ten years imprisonment. Although I would imagine these two matters on a Form 1 would have ordinarily in the course of matters, but for the principal offence, be dealt with in the Local Court.

3. The second group of offences were committed on 1 June 2016. They comprise two breaking, entering and stealings, one offence involving stealing property greater than a value of $60,000 and a second breaking, entering and stealing involving the stealing of property valued less than $60,000. These are offences with the same maximum penalty arising out of the same provision as I earlier outlined, that is 14 years imprisonment with no standard non‑parole period.

4. There is a further offence of resisting an officer in the execution of his duty contrary to s 58 of the Crimes Act 1900 that carries, when dealt with on indictment, a maximum penalty of five years imprisonment.

5. Attaching to the principal offence, which is the breaking, entering and stealing offence where property greater than $60,000 was taken, I am required to take into account two matters on a Form 1. An offence of larceny. That offence, it must be said, committed on 18 May 2016, and another offence of breaking, entering and stealing committed on 26 May 2016 according to the cover sheet.

6. The details of the specific offences I will come to in a moment. The breaking, entering and steal matter on a Form 1 of course, when dealt with on indictment or dealt with by committal for sentence, would carry a maximum penalty of 14 years imprisonment.

7. The prisoner was committed for sentence from the Local Court in February 2017 and thus in relation to each offence for sentence I propose to accord the offender a discount of 25% to represent the utilitarian benefit of the pleas of guilty in accordance with the guideline judgment from 1999/2000 of Thomson and Houlton. There appears no dispute about that.

8. I should point out the prisoner was born on 17 November 1988 and thus at the time of the commission of the offences with which I am concerned, as I would calculate his age, he was 27 years of age. He is a Queensland resident normally. In fact he had lived in Queensland up until, it would seem, around about 2014 when, after release from prison, he came to New South Wales and committed the offences with which I am concerned and other offences that are reflected in his criminal history.

9. The offender was on parole in New South Wales at the time of the offending with which I am concerned. But it seems as though from the pre‑sentence report and other information the offender’s parole had been revoked. Not for the offences with which I am concerned, but because for reasons I will deal with in dealing with subjective circumstances. He failed to report to the parole authorities and failed to comply with their lawful directions, thus a breach report was filed when he was unable to be contacted and when he came into custody in relation to the current matters parole was revoked.

10. He was arrested on 1 June 2016 shortly after the commission of the offences that are described in the Crown cover sheet as the “second offences”; that is the two breaking and enterings and stealings of 1 June and the resisting the police officer in the execution of his duty. However, he was required to serve a balance of parole which required him to be in custody, as I understand it, in respect of that revocation of parole for one month and 21 days. If the balance of parole that he was required to serve had been a lengthier period of time I would have approached the matter somewhat differently.

11. I am mindful of the 2006 Court of Criminal Appeal decision of Callaghan, particularly the decision of Simpson J. This is a decision of the Court of Criminal Appeal where her Honour surveyed the authorities that dealt with the situation where there was an extensive balance of parole to be served upon revocation of parole and where particular offences for sentence involved a breach of that parole which was revoked. She, by reference to the authorities, cautioned against the “double-dipping” that is involved when finding as an aggravating factor in relation to the offending pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, that the offences were offences committed in breach of conditional liberty, but then seeking to accumulate any sentences imposed upon the balance of parole served.

12. In other words as an aggravating factor breach of conditional liberty requires consideration of increasing the appropriate sentence the offender is also penalised by the order accumulating upon the balance of parole in its entirety. The discretion is wide, of course, in this regard. But ordinarily where the balance of parole is an extensive period of time one would commence any further sentences sometime into the balance of parole, recognising, as her Honour pointed out, the fact that if a person was on parole and their parole was revoked, they would still be eligible to be released to parole during the course of the balance of the sentence at the discretion of the Parole Authority.

13. But here the parole served was one month and 21 days and I believe I can reflect the effect of the accumulation in the fixing of the non‑parole period by a finding of ‘special circumstances’ pursuant to s 44 Crimes (Sentencing Procedure) Act 1999. On that topic, perhaps getting ahead of myself in terms of the material I have to cover, I have concluded that I should make a finding of ‘special circumstances’ in the fixing of the non‑parole period. Putting aside the issue of accumulation upon the balance of parole that has already been served, there will be some partial accumulation within the sentences that I impose and that partial accumulation of itself is a “special circumstance”.

14. If the offender were released to parole in New South Wales having regard to the report of the Community Correction Service, I believe he requires an extension of the balance of the sentence to provide proper support for his integration into the community and to receive appropriate direction and counselling in relation to the underlying issue to his offending, and that is his long entrenched drug dependency.

15. However, on that matter there is a complication. The complication is that the offender’s parole in Queensland has been revoked and the offender anticipates that on his release from custody in New South Wales he will be extradited to Queensland to serve the balance of the parole. In this particular matter the learned Crown Prosecutor has endeavoured to assist me with his understanding of the Queensland provisions. Unlike in New South Wales where parole is revoked, when a person is returned to custody they have to serve the full balance of parole at the time of the revocation. My understanding of the system in New South Wales is that does not necessarily arise.

16. But he also understands that if parole is revoked a person may be further released to parole during the course of what we in New South Wales would call the “balance of the sentence”. As I am expecting, from what I have been told, the offender will be required to go back to Queensland and serve a further time in custody to my mind that is a relevant matter to take into account, albeit marginally, in consideration of fixing of a non‑parole period which ordinarily would anticipate his release to the community.

17. It is possible that when he is released to parole in New South Wales, assuming that he is released on the non‑parole period expiry date that I fix, he may end up serving another 11 months and some days in Queensland which would only leave slightly more than a year of the balance of sentence that I fix to be served under parole conditions. I would expect the New South Wales authorities would request the Queensland authorities to enforce the parole conditions that will be required.

18. Turning, however, to the facts of the matters with which I am concerned, I have a very detailed fact sheet and it is not necessary for me to repeat all of it. The first tranche of matters all arose on 29 May 2016; the facts presented to me are in error in that regard. The offender made an incursion in the early hours of the morning at premises at Burraneer in the Sutherland Shire. The premises were the subject of a renovation at the time. It was the early hours of the morning. The prisoner was wearing some sort of hooded jacket and shorts. He used a screwdriver to force open a kitchen window and stole a quantity of property inside the premises, a Gucci bag valued at $2,700, inside which there was a MasterCard debit card, American Express credit card and a Visa credit card in her name. He also took earrings and a Christian Dior watch valued at $5,000 and an iPad that was not password protected and two sets of keys.

19. I pause for a moment to point out that in the written submissions of the Crown it is said at para 13, “In the first break and enter property valued over $7,000 was taken.” I would be very appreciative from now on if representatives of the Crown could get the relevant information as to the total value of property stolen in such a case put into the facts, rather than leaving it for the judge to speculate as to the total value of property that has been taken or to have to do the arithmetic him or herself. I am prepared to accept the figure from the Crown’s submissions. But it should, as I say, be in the facts so that it is there for all to see.

20. While in the house the prisoner took a set of keys for a blue Honda Civic motor vehicle and a set of keys for another vehicle. He used the keys for the blue Honda Civic motor vehicle to drive that car away from the property. Later on that morning he used the American Express credit card to buy a cheap meal at McDonald’s, and then the cards that he stole were used between 6am and 7.26am to make online purchases and transfer cash to a total value of $5,058, of which $3,363 and a few odd cents was apparently refunded by the relevant financial institutions.

21. The motor vehicle was eventually located after the prisoner, I assume, had been arrested in early June at a place where he had “hidden it”. A drink container found inside the vehicle was tested and the DNA profile of the prisoner was identified from a swab taken from the drink container. They are the offences in the first group of offences with which I am concerned.

22. The second group of offences, the three offences committed on 1 June, involved the prisoner being in the vicinity of properties in Church Point at the other end of Sydney up near Pittwater. The first break and enter involved the prisoner entering the premises of a Ms Greneger in the morning at about 10.30am. She had recently returned from her mother’s funeral and was obviously in a distressed state. She became aware that somebody was in the property in which she resided, her dogs were barking and the like, and she at the time I believe had a relative staying with her. A dog was barking.

23. She discovered that her house had been “violated” and she eventually, after getting a glimpse of someone fleeing the premises, found that her bedroom had been ransacked, her handbag and wallet opened, drawers and other items strewn around the room. The missing items were a number of designer watches totalling $40,900 in value, which apparently were later recovered, credit cards in her name, two bags with a total value of $4,650, jewellery to a value of $5,800, a pair of sunglasses worth $200, a rare coin collection valued at between $25,000 and $30,000, and a set of keys for a Range Rover motor vehicle. Ms Greneger was affected “quite seriously” by the incident, and certainly it compromised her sense of security.

24. I am told by the Crown that the designer watches were recovered, the offender being arrested a short time after the offence. But the other property was not recovered. Where it is I do not know. The prisoner certainly does not have it unless he has hidden it somewhere for when he is finally released from custody. Certainly the Range Rover keys would be no good to him. The matters of true value, one would have thought, were the bags, the jewellery and the coin collection. In any event I am told they were not recovered, for reasons I do not know.

25. Later that same day the offender had broken and entered a property nearby that belonged to another family. He went into one of the bedrooms and there took a watch valued at $5,500, some after shave, a number of coins, a Mastercard in the name of Williams Reeves(?) and two credit cards in the same name. He moved some guitars that were in the premises and he put an old Nokia phone belonging to Mr Reeves on a charger for some reason. I assume he must have been disturbed in some way. Obviously he was going to probably use the mobile phone at a later time. He put some of Mr Reeves’ clothing in a backpack and left those items at the corner of the Reeves’ verandah. The property was returned to the victims.

26. The prisoner left the Reeves’ property, but by this stage the police were called and he was chased by police. Initially the prisoner feigned exhaustion, telling the officer who had come across him that he was “stuffed”. As the officer who found him was about to put him into handcuffs, the offender pushed past him and began to run down the road again, causing the officer to drop the handcuffs, fall over and graze the palms of both his hands. He chased after the offender and eventually the prisoner was subdued and handcuffed. The police officer attended hospital for treatment of the grazes. Various items were found in his property, including the car key belonging to Ms Greneger.

27. An ambulance was called when the prisoner complained of chest pains. He had provided at that stage a number of different false names. An item was found in his possession with the name Ricky Jerkic, and a check of that name revealed the parole revocation warrant outstanding in New South Wales. When questioned in hospital about what he had done earlier that day, the prisoner stated,

“I checked and no-one was home. I saw about 50 Louis Vuitton handbags so I thought ‘Why not’. I didn’t hurt anyone. It was stupid, I know”.

28. Later that afternoon in a separate incident the prisoner, who they thought might have had a urinary tract infection, was taken to a toilet. He started to run away again when he was released from handcuffs, but was quickly subdued and taken to Manly Police Station.

29. In relation to the offences on the Form 1, the matter of larceny was an offence committed on 18 May 2016 when the prisoner broke into a person’s car and stole a smart phone valued at $500. His blood was found and the DNA profile from that blood was matched with that of the prisoner. The prisoner was spoken to about this offence on 13 June 2016. It turned out that the victim of that offence had some connection with the prisoner.

30. The other break, enter and steal matter on the Form 1 that is attached to the principal offence of breaking into Ms Greneger’s property was an offence committed at Kingsgrove during the day, it would appear, of 26 May 2016. CCTV footage from within the premises depicted the prisoner entering the property through a rear sliding door. He stole a phone valued at about $100 and it turned out that that person was the prisoner. By comparison with the other break, enter and steal matters it was a very minor matter, but still a violation of the privacy of the victims. That is from the statement of facts, an outline of the offending of the prisoner.

31. The Crown has produced a criminal history of the prisoner and it is a very melancholy document to read. The offender comes from Queensland and has an extensive history in Queensland going back many years to 2003 when he would have been approximately 14 or 15 years of age. Apart from appearances in the Children’s Court involving offences of burglary and entering premises, theft and the like, he has convictions in the Townsville Magistrate’s Court for assault occasioning actual bodily harm, he has convictions in the Townsville District Court in March 2008 for entering a dwelling with intent by breaking in at night, burglary and committing indictable offences, 12 charges in all, six charges of stealing, attempted unlawful use of a motor vehicle, et cetera, et cetera. The offences for which he was dealt with on that occasion I have not totalled, but they occupy almost two columns of the Queensland record. In respect of all the principal charges he was imprisoned for four years and six months and had various other terms of imprisonment, disqualifications and the like imposed. He was fixed to be eligible for parole on 31 July 2009. He came back after being released from custody to be convicted at the Southport District Court in 2012 for robbery whilst armed, or pretending to be armed, with an offensive weapon and was sentenced to two years and six months imprisonment.

32. He was also convicted and sentenced in relation to a large number of other offences including burglary and commit indictable offence on a number of occasions, unlawful entry of a motor vehicle, receiving stolen property, fraud, dishonestly obtaining property from another and a large number of charges of dishonesty which either attracted terms of imprisonment or, I understand, to run concurrently with the two years six months imposed for the robbery matter. He was deemed to be eligible for release to parole on 28 March 2014. The other convictions in Queensland I need not dilate upon, but he does have other findings of guilt in Queensland.

28. This brings us to his New South Wales history. It would appear that he was charged in August 2014 in Tweed Heads with taking and driving a motor vehicle without consent on two occasions, and breaking, entering and stealing on two occasions on 1 May 2011. These were obviously offences for which warrants awaited him in New South Wales. He was convicted and sentenced to a total of 15 months imprisonment to date from 3 April 2014 with a non-parole period of nine months commencing on that date.

29. Trying to marry up the dates between the Queensland history and the New South Wales history is something of a challenge. But as I would best understand it he was eligible for release to parole on 28 March 2014 and was arrested in relation to these matters a few days later. It is possible that he was extradited to New South Wales for those matters. They certainly were matters committed before he was sentenced in Queensland for the robbery matter and the related charges.

30. He was released to parole, as inevitably he would have been with that term of imprisonment, on 2 January 2015, but he was charged on 17 January 2015, that is within a few weeks of release, in respect of an offence committed on 7 January 2015 of driving whilst disqualified. He was also convicted of breaking, entering and stealing, entering a dwelling with intent to steal, dishonestly obtaining property by deception on two occasions, taking and driving a motor vehicle without consent, dishonestly obtaining financial advantage by deception. As I understand the matter he was sentenced to a total sentence of 18 months imprisonment to date from 17 January 2015 with a non-parole period of 12 months concluding 16 January 2016. Some of the sentences imposed ran concurrently with that effective sentence.

31. I should also say his record reveals that when he was dealt with in Tweed Heads there were other offences committed in 2011 relating to a police pursuit, assaulting police, using an offensive weapon to prevent lawful apprehension and other matters for which sentences of imprisonment were imposed.

32. The last sentence of imprisonment imposed in New South Wales before today meant that he was eligible for release to parole on 16 January 2016. In this regard I now turn to the Community Corrections record which was tendered today and which I ordered on the last occasion. That report sets out the fact that his first contact with Community Corrections in New South Wales was entirely unsuccessful. He failed to report for interviews, he failed to reside in any approved address, he re-offended, and he was back in custody within two weeks of his release.

33. On his release to parole supervision in January 2016 he was somewhat more successful. He firstly completed a residential rehabilitation program, or at least one phase of it, and was moved to a “programs exit house” which I take to be ‘Glebe House’. Today his counsel has produced an affidavit annexing a body of material taken from Corrections’ case notes. These case notes confirm the history the prisoner has given to a psychologist and confirm what is said in the pre-sentence report. His initial response was satisfactory, he seemed to be making progress, he seemed to be proud of his progress and there was family interest supporting his progress. However when he became aware that there was an outstanding warrant in Queensland, he went back to the use of prohibited drugs and it was in this context that he committed the offences over a period of 12 days or so that I have outlined.

34. I pause for a moment to point out that the prisoner must have known that eventually he would be required to go back to Queensland in respect of the parole that he was in breach of given the events in New South Wales.

35. In respect of his time in custody since June 2016 he has been the subject of a number of internal misconduct charges. Some of these matters are not matters of great moment to my mind. Internal conduct charges do not have the status of criminal convictions. But he does have a finding against him in relation to refusing to give a sample for drug testing. The Crown has brought me up to date with his Corrections record which is now part of the Crown bundle which shows a finding against him in mid-September for possessing a drug. Whether it is the same matter referred to in the pre-sentence report or not I do not know. Certainly the pre-sentence report is dated 28 September 2017. It could be the same matter.

36. The Community Corrections report gives some family history, some dysfunction in the family of which the offender speaks in the psychologist’s report, his mother’s difficulties with alcohol. He has had little employment since he was 18 years of age. Most of the time since his 18th birthday has been spent in custody, either in Queensland or New South Wales. He, when at large, is usually in receipt of unemployment benefits. He had a dislocated or disrupted educated, claiming to have attended ten primary schools and three high schools. He barely completed year 8 at high school.

37. He has been a user of illicit drugs since he was 13 and particularly in recent times he has been heavily dependent upon amphetamine type drugs. He was using crystal methylamphetamine in May 2016 and he claimed to be under the influence of that drug at the time of the commission of each of the offences. He had been abstinent during his residential rehabilitation program but had lapsed in the circumstances I have outlined of the news that he may be required to return to custody in Queensland. It seems to my mind a rather strange situation where someone goes back to drug use because of that news with the inevitable consequence that they will commit more offences which will lead to further periods of incarceration.

38. He is said to have taken responsibility for his offending and made acknowledgements of the incursion on the privacy of the victims and expressed interest to seek assistance on his release. He is considered to be of medium to high risk of re-offending. He has a number of what are called criminogenic needs, including attention to education and employment, his financial circumstances, proper use of his leisure time, alcohol and drug issues, and his general attitude and orientation.

39. The report states that he still has the support of his family and that he wished to engage in treatment in due course. Everyone I have ever seen that comes to court here who has committed offences when affected by drugs or when dependent upon drugs, makes the claim that they are anxious to engage in treatment on their release. So one must approach such claims with considerable circumspection.

40. In relation to the parole situation in Queensland, there is attached to the Community Corrections Service a record of his performance in Queensland which is to be fairly said according to this document very desultory and uninspiring.

41. The prisoner’s legal representatives prepared for the Court, through Anna Robilliard, a well-respected forensic psychologist, a psychological report. The prisoner’s personal background I need not dwell upon. There was family dislocation, separation between his parents when he was five, disruption to his education. It would seem that his father was the more stable of the two parents, but they both continue to support him. He has little in the way of employment history according to information available to the psychologist. He did some work with his father for about eight months when he was 15 years of age and that has been his longest period of employment.

42. He has been Hepatitis C positive for about eight years and is required to address that matter at some point. He has no history of mental health issues. He has a long history of use of drugs as I have pointed out. He was impressed with the rehabilitation program he entered in early 2016 and the history gives the psychologist, who is in accord with other evidence available to me, that he progressed well for probably the first time in his life whilst subject to parole or probation until such time that the fact he was wanted in Queensland had been communicated to him.

43. In relation to his psychological testing he is of average IQ. He has a composite IQ between 88 and 102, so his score in that regard would be equal to or better than 32% of the general population. The Risk Assessment and Management section of the report notes that with the application of the actuarial tool available to the psychologist he is assessed at a ‘high risk’ of reoffending. He has achieved significant scores on measures of anti‑social personality problems; historical problems of disturbed childhood behaviour which is a strong indicator of longer criminogenic risk, which is reflected in his criminal history.

44. In the summary that was provided by the psychologist, the psychologist is unable to identify what triggered the prisoner’s early attraction to substance misuse. There was some evidence of peer influence; one can see the seeds of his addiction in family disruption and dislocation, interruption to his education and the like. The psychologist reflects upon the character of addiction. The psychologist noted in the interview that he presented with frustration and distress at the circumstances of his life and the addiction that he had been subject to up until recently.

45. The prisoner advised her that he realised that he needed to go back to a process of rehabilitation and recovery. Again, I understand him making those noises, but the truth of the matter is his capacity to address these issues will be really dependent upon his attitude when he is released from custody. Not his attitude when he comes forward for sentencing, trying to present the best of himself to the Court.

46. He has had no face-to-face contact with his family for a number of years. He is highly motivated to return to Queensland and highly motivated to re‑establish himself with his family. The psychologist believed that he had some insight into his offending style and had some understanding of the need to address the underlying problems; but all in all, even allowing for the fact it is a psychologist’s report, there is nothing really significant in the character of psychiatric and psychological illness, disability, or disorder which reflects upon his offending.

47. The prisoner also produced a letter of apology to the Court, which I have read. This letter is expressed in terms where the prisoner apologises to his victims, tries to explain the circumstances of his offending, and the reason for his failure to stay away from methylamphetamine before he began offending again. It is understood that these reasons are proffered and are probably true, but it does little to assist the prisoner to be identifying the fact that he is subject to lawful intervention has caused him to go back to drug use. He notes his very “quote lengthy and appalling criminal history” but he would wish both his victims and the community to know that he is remorseful.

48. As far as his father is concerned, he wrote a short letter to the Court. He understands the difficulty that his son is in; he indicates that he would wish to assist him. He says that he has noticed “a big change in his attitude” over the last 12 or so months, and that he would support him on his release to the community.

49. That constitutes the evidence available to me. It is a situation that is not uncommon in these courts. People that are drug addicted and drug dependent committing crimes it is claimed for the purpose of supporting their drug dependency. The facts of the matter are, as the Crown’s written submissions make clear, that violations of the private homes of people are matters of which the Courts are rightly concerned to ensure that matters of general and personal deterrence are given appropriate weight.

50. The Crown’s written submissions identify old authority from 1984 in the judgment of Lee J that the “invasion of people’s homes” and the “plundering” of their property is a social evil which the community looks for protection from law enforcement officers and the criminal courts. So said the Court of Criminal Appeal in the 1984 decision of Hayes. Heavy sentences are required in respect of offences committed on domestic premises by repeat offenders, and this offender from his Queensland and New South Wales history is clearly a repeat offender.

51. On the other hand, the very decision the Crown cites of Harris, along with the decision of Huyn and the like, noted of course that breaking, entering and committing a serious indictable offence is concerned with a range of offending, not just stealing. Amongst serious indictable offences, stealing is not the most serious indictable offence that the section contemplates.

52. The defence submissions in fact - if I might just pass to them in the context of assessing the criminality of the offender - noted a number of features that were discussed in the “guideline” judgment of Ponfield [1999] NSWCCA 422, where Grove J very eloquently identified features of this offending which by and large found their way into the subsequently amended s 21A of the Crimes (Sentencing Procedure) Act 1999. I accept from her submissions that the offences were not professionally planned, organised, or even executed; very little in the way of disguise, if any, certainly little in the way of protecting himself from identification.

53. The offences were not committed at premises of the elderly, sick or disabled. In fact the prisoner had no knowledge of the people involved at the various properties; there were not accompanied by significant vandalism or significant property damage. There was one window frame that was damaged, but that is not significant property damage. There were no repeat incursions into the same premises. There were significant monetary and/or sentimental valued items that were taken, particularly at the premises of Ms Greneger, and it is to be fairly said that the offence at her place involved property that, on face value at least, was in excess of $80,000. A good part of that was recovered. But it is of little consolation to the victim to have that property taken from her.

54. It is pointed out that one of the other offences was committed when the premises were “occupied”, but the prisoner has not been charged with any circumstance of aggravation that might otherwise be brought if it were established that he knew that people were inside the premises. There was no use of force or threat against any individual. These are matters identified in Ponfield and, as I said, there is the character of the serious indictable offence that is pleaded in respect of each offence contrary to s 112(1)(a) Crimes Act 1900.

55. With regard to the issue of the prisoner’s motivation, there is the excuse given by the prisoner of his drug dependency. In the guideline judgment of R v Henry & Ors (1999) 46 NSWLR 346, the Court held that drug dependency or addiction in armed robbery matters - and it is held also in relation to other offending - is not a mitigating matter (at [273]). It may have some relevance in other respects, though, as to the impulsivity of the offending and the extent of planning, the existence or non-existence of some circumstances of aggravation, the state of mind or the capacity of the offender to exercise judgment being amongst the matters relevant to the assessment of the objective facts.

56. I do not regard these offences as “impulsive”. The offender was wandering in parts of Sydney that were not areas where he lived, and it would seem to me that he was wandering in areas of Sydney where he would take the opportunity, if it was available, to break into premises. That having been said, I would categorise his offending as “opportunistic” and certainly not “planned”. One offence was committed between 4am and 5am in the morning; clearly under cover of darkness he would expect to get away with that particular offence.

57. As for his capacity to exercise judgment, whilst he claims to have been under the influence of drugs at the time and he may have been, he still had the presence of mind to choose property that was valuable, to take car keys, for example, in relation to the first principal offence, and to take the motor vehicle, drive it to McDonalds and then in the early hours of the morning, some time after 6.30, transfer a substantial sum of money for his own benefit from cards that he had access to. Likewise in relation to the offending on 1 June he was able to take property, store it in bags with a view to being able to carry it away, and he certainly had the presence of mind to feign exhaustion so that it would give him an opportunity to again get away from the grip of the police officer in the circumstances I have outlined.

58. Wood J in Henry, parts of whose judgment I have already cited in the current context, went on to point out that drug dependency or addition may be relevant in relation to the subjective circumstances, the prospects of recidivism or rehabilitation, the circumstances in which the person came into drug dependency, where offenders were at the crossroads receiving special consideration and the like.

59. So far as those matters are concerned that I have spoken about in Henry at [273], obviously, as his counsel concedes in her written submissions, the prospects of rehabilitation of this offender must be very guarded. A man who has been in and out of custody almost continuously since the age of 18, now 28 years of age, must be seen as at real risk of further offending. I have taken into account his expressions of wishing to turn a corner. For his sake and the community’s sake one would wish that to be so. But one could not accept such claims at face value; the proof of the matter will depend upon his performance when he is released from custody in due course.

60. If I could just return to the Crown’s submissions if I may, I acknowledge the relevance of the maximum penalty in the context of the recognition of the maximum penalty as a yardstick of the seriousness of the offending.

61. With regard to the issue of the degree of planning as it is identified by the Crown, I have indicated that I could not conclude that these were planned offences. They were clearly, in my view, opportunistic and I have taken into account the loss of property and the like.

62. The Crown correctly identifies that all the offences were committed whilst the prisoner was on conditional liberty as an aggravating factor, and I have discussed that matter earlier.

63. So far as his criminal history is concerned, I do not find that to be an “aggravating” factor, although he is getting very close to a finding being made in that regard. But his criminal history certainly does not entitle him to any particular leniency or any substantial leniency. His criminal history is indicative of his risk of reoffending.

64. So far as the offending being aggravated as it was committed in the home of the victims, I would have thought, with respect to that submission, that it was at least implicitly or inherently an element of the offence that the offences were committed at the home of people. Breaking into dwelling houses, by definition, involves breaking into premises that are occupied by people, and I could not find that as an “aggravating factor” as the Crown submitted. It would be a case of “double dipping”.

65. With regard to mitigating factors arising under s 21A(2), the Crown reflects upon his plea of guilty. The Crown correctly indicates that he is not entitled to a favourable finding so far as good character, his criminal history and the like. I could not conclude on balance that he has “good prospects of rehabilitation” at this point. I am prepared to find that the offending was not part of “planned or organised criminal activity”.

66. Whilst I note his expression of regret and the like, I could not conclude ultimately that there is a finding or remorse available pursuant to s 21A(3)(i) of the Act such as to make that a mitigating factor. Although I acknowledge those matters are adverted to in his apology and in statements he made to the psychologist and the Community Corrections officer.

28. I accept the submission of the defence in relation to the resist officer, that he is to be sentenced for that and not a more serious offence of causing actual bodily harm to the officer in accordance with s 60(2) of the Crimes Act 1900. I have taken into account the matters adverted to in the defence submissions from the judgment of Wood J in Henry.

29. With regard to the issue of matters on a Form 1, which the Crown refers to as being part of the matrix of matters I am required to consider, I note what was said by the Court of Criminal Appeal in the guideline judgment in relation to matters on a Form 1 from 2002. In Attorney General’s Application (No 1) of 2002, (2002) 56 NSWLR 147, the Court held that the fact that there are matters to be taken into account on a Form 1, and here I have two Forms 1 in relation to two separate principal offences, means that greater weight should be given to the need for personal deterrence and the community’s entitlement to extract retribution.

30. The Court held in that matter that “the entire point of the process” is to impose a longer sentence or perhaps to alter the nature of the sentence that would have been imposed if the principal offence was a sentence that stood alone. Sometimes the additional penalty may be small, sometimes it will be substantial, however the Court cautioned that the whole point of the process was to fix an appropriate sentence for the principal offence, bearing in mind that deterrence and retribution are entitled to be given greater weight than they might otherwise be given when sentencing for the primary offence alone.

31. Of course I am required only to have regard to the maximum penalty for the primary offence as the yardstick for the sentence for the principal offence and it would be rarely appropriate for a sentencing judge to attempt to quantify the affect upon that sentence when taking into account Form 1 matters. Those various observations of the Court in that judgment may be found at [18]-[44].

32. With regard to some of the submissions of the defence, I have taken into account, as is evident from what I have said earlier, the attempt of the prisoner on his second release to parole in New South Wales to come to grips with his drug dependency. It is of little comfort to the Court that he should relapse on the basis of information, that he must have expected to come from Queensland, that he was still wanted up there.

33. The written submissions of his learned counsel today, Ms Williams, set out matters that I have already taken into account; the significance of his drug dependency, the continuing support of his family despite their dislocation, his lack of opportunity as a child, the absence of any mental health issue relevant to his offending. I have taken into account his capacity for rehabilitation, although his prospects of rehabilitation cannot be classified as a mitigating factor. There is a capacity there that will need to be tapped into and will need to be evidenced by the prisoner if his parole is to continue when he is released. I have taken into account the fact that he does need an extended period of supervision in the community, if it is possible for that to be given to him, in light of his situation in Queensland.

34. I have determined, as I have earlier said, that there are ‘special circumstances’ in the matter pursuant to s.44 of the Act. I have tried to give regard as best I can to the impending return to Queensland.

35. Reference was made in the submissions to the High Court judgment of Mill v The Queen (1988) 166 CLR 59. In that judgment the High Court of Australia adopted what had been said by the New South Wales Court of Criminal Appeal in the decision of Todd concerning the affect upon sentencing in New South Wales for stale offences of the fact that an offender had in the intervening period since the earlier offending spent time in another jurisdiction’s gaol. The matters adverted to in Todd and discussed in Mill at pp.65 to 66 of the judgment do not arise here. The situation in Queensland is one that awaits the prisoner. But as I have earlier acknowledged the fact that he will be required to return to Queensland will have an effect upon the practicality of the non‑parole period that I fix.

36. There is one other matter that arises out of Mill that is relevant to this sentencing exercise and it touches upon a matter raised in the submissions of the Crown. This is the issue of totality of sentencing which was discussed by the High Court in Mill at 62-64 of that judgment. In 1998 the High Court, by majority, in the decision of Pearcev The Queen (1998) 194 CLR 610, particularly at [45], held, and it has since been common and proper sentencing practice, that in sentencing for multiple offences a Court is required to fix an appropriate sentence for each offence calling for sentence and then turn one’s attention to the issue of totality, which includes determining the extent of concurrency an accumulation or partial accumulation as the case may be.

37. This issue has received a great deal of attention from the Court of Criminal Appeal since then. In 2000 Simpson J in the decision of Hammoud discussed the issue of fixing appropriate sentences for multiple offences, even if the offences are not committed at the same time. There have been a number of other authoritative discussions on this matter. I need not cite those judgments.

38. I have come to the conclusion to reflect the totality of criminality that there should be some partial accumulation of one set of sentences upon another. I have considered the issue of whether within the second set of offences, that is 1 June offences, there should be some further accumulation. To my mind in light of the extent of accumulation that I am proposing further accumulation is unnecessary to reflect the totality of the criminality, although I accept that it would be within my discretion to approach the matter that way and it is in those circumstances that I came to the conclusion, as I did ultimately, the total sentence to be imposed upon the prisoner should be one of five years, and with the finding of special circumstances the appropriate non‑parole period effectively should be two years and nine months.

39. The prisoner will not be automatically eligible to be released to parole and of course there is the uncertainty as to what may happen to him in Queensland. Whilst I accept very much the great assistance of the learned Crown Prosecutor, both he and I are not in a position, nor is the defence, to effectively assist me as to what may happen in that regard with any particular precision.

40. In sentencing the prisoner I have had regard to s 3A of the Act. Obviously in this matter there is a need to ensure adequate punishment, to give weight to general and personal deterrence, to protect the community from the offender to the extent that the offending requires such protection, to denounce his conduct, to recognise the harm done to the victims and to make him accountable for his actions. There is still a need, notwithstanding the fact that he is now 28, not a child anymore, to promote his rehabilitation. I do accept what his counsel said about the issue of “institutionalisation”. It seems to me with regret that process has already occurred or commenced, and ultimately it will be entirely a matter for the prisoner to make the decision whether he wants to continue going back into prison or not. One of the things that he should do in order to avoid going back into prison is to avoid use of prohibited drugs. It is for that purpose I have determined, amongst other things, that there should be a finding of ‘special circumstances’.

41. In relation to the offence committed on 29 May 2016, taking into account the matters on the Form 1, you are convicted and you are sentenced to two years, six months imprisonment. That sentence is to commence on 22 July 2016 and expire on my calculation on 21 January 2019.

42. In relation to the offence of 1 June 2016, taking into account the matters on the Form 1, you are convicted. You are sentenced to a term of imprisonment of one year and six months by way of a non‑parole period to commence on 22 September 2017, in other words accumulated upon the other sentence by one year and three months. That non‑parole period will expire on my calculation on 21 March 2019. I fix a balance of sentence in relation to that sentence of two years and three months, imprisonment expiring on 21 June 2021. But for the Queensland situation I would have made that non‑parole period one year and nine months, and the balance of sentence two years.

43. In relation to resisting the police officer in the execution of his duty you are convicted. You are sentenced to a term of nine months’ imprisonment to commence on 22 July 2017, expiring on 21 April 20118.

44. In relation to the further offence of breaking, entering and stealing you are convicted. You are sentenced to a term of imprisonment by way of non‑parole period of 18 months to commence on 22 September 2017, expiring on 21 March 2019, and in respect of that I fix a balance of sentence of one year, six months to expire on 21 September 2020. The balance of sentence for the sentence of three years and nine months expires on 21 June 2021.

45. Yes, Mr Crown, are there any matters from you?

46. SIT: No outstanding matters from the Crown.

47. HIS HONOUR: Thank you. Ma’am, is there anything from you?

48. WILLIAMS: Nothing further, thank you.

49. HIS HONOUR: The total sentence I have imposed on my calculation, Mr Jerkic, is five years imprisonment. That’s to date from the date that your balance of parole expired, 22 July 2016. You are eligible for release to parole on 21 March 2019. The balance of sentence is two years and three months, but whether you are released to parole on that date and what happens to you after that date I cannot say. Thank you, you’re excused. Thank you very much, Mr Crown, thank you very much for your assistance, Ms Williams, sorry to keep you back. I’m sorry, Mr Crown, Ms Williams, I’m just making sure all the orders have been typed up as I intended them to be. I mean I could have stood Mr Jerkic’s matter over to another date but I thought it best, in light of the history of the matter, to try and resolve it as quickly as I could.

50. WILLIAMS: I’m grateful for your Honour for sitting on this afternoon.

51. HIS HONOUR: I went back to get Mill v The Queen, amongst other things.

Decision last updated: 13 November 2017