R v Justin Alexander CROESE

[2009] NSWDC 228

CITATION:	R v Justin Alexander CROESE [2009] NSWDC 228
JUDGMENT DATE:	7 August 2009
JURISDICTION:	2008/11/0508
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	For the offence of break and enter, taking into account Form 1, 18 months fixed term. For the offence of aggravated break and enter with intent, 2 years fixed term. For the offence of aggravated break enter and steal in company, non-parole period of 2 and 1/2 years and balance of term of 2 and 1/2 years.
CATCHWORDS:	CRIMINAL LAW - sentence - tension between punishment and rehabilitation - plea of guilty at earliest opportunity - aggravated break and enter with intent - break enter and steal - aggravated break enter and steal - offence committed while on bail - prior criminal record - prospects of rehabilitation - applicability of standard non-parole period
LEGISLATION CITED:	Crimes Act 1900 s 112(1), s 112(2), s 113(2), s 154A(1)(b) Crimes (Sentencing Procedure) Act 1999 s 5, s 21A(3)(i), s 21A(3)(h), s 23, s 32, s 54B
CASES CITED:	SZ v The Queen (2007) 168 A Crim R 249
PARTIES:	Regina Justin Alexander Croese
FILE NUMBER(S):	2008/11/0508
SOLICITORS:	Director of Public Prosecutions Caldecott & Williams

JUDGMENT

1. I am sentencing a young man who from an early age fell into a life of drug addiction and crime. His early life was marked by separation, disruption and abuse. He comes before me for burglaries which he committed driven by his drug addiction. They are the sorts of burglaries that significantly disturb people’s lives and the courts have made it clear that that sort of criminal behaviour must be punished.

2. On the other hand, some very recent large changes have occurred in this young man’s life. He has been reunited with the family he was separated from as an infant and has been drug free for some time.

3. Hence the sentence I impose must inflict punishment - the punishment which the community expects for these crimes - but also reflect and encourage his steps towards rehabilitation.

4. The young man’s name is Justin Alexander Croese. He has been charged with and pleaded guilty to three crimes and I convict him of those three crimes.

5. The first crime is aggravated break and enter with intent committed on 4 May 2007. That is an offence against s 113(2) of the Crimes Act 1900 and carries a maximum of fourteen years imprisonment. I have been asked to take into account when I am sentencing him for that crime an additional offence of being carried in a stolen vehicle without the owner’s consent which is an offence against s 154A(1)(b) of the Crimes Act. I will take that into account and I sign the document known as Form 1 which is pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999.

6. The second crime that he has pleaded guilty to is break enter and steal. It was committed on 7 February 2007. That is an offence against s 112(1) of the Crimes Act and carries a maximum of fourteen years imprisonment.

7. The third and most serious crime is an aggravated break enter and steal. The aggravation was that he was in company. It was committed on 13 February 2008. That is an offence against s 112(2) of the Crimes Act. It carries a maximum of twenty years imprisonment. Not only that, Parliament regards that crime as so serious that it has fixed to that crime a standard non parole period of five years imprisonment. That means that Parliament expects, unless it is a certain exceptional case, that the non parole period should be five years for such a crime. I will return to the question whether this is an exceptional case or not shortly.

8. I have also been asked to take into account relating to that offence three other offences on another Form 1. Those three other offences are another crime of being carried in a stolen vehicle against s 154A(1)(b) of the Crimes Act and a crime of break enter and steal and contrary to s 112(1) of the Crimes Act and a crime of break enter and commit malicious damage contrary to the same section of the Crimes Act. I will take those offences into account in sentencing Mr Croese for that offence and I have signed the Form 1 accordingly. The two Form 1’s are exhibits C and D respectively.

9. It is important when sentencing someone to commence with an account of just what the crimes were so that an assessment can be made of just how serious an example of criminal behaviour the offender engaged in. The first crime in point of time was the second charge of break enter and steal. It was committed some time between 8.30 in the morning and 5 in the evening on Wednesday 7 February 2007. Mr Croese took himself to a house owned by some people in Billyard Avenue in Wahroonga. He went to the back of the house and opened the closed laundry door and went in. Inside he stole items of personal property amounting to in value some $10,000. A list of some of those items will give anyone an idea of how upsetting and disturbing the theft of these items would be to their owner.

10. He stole an antique bracelet as well as an antique fob watch and chain. He stole a strand of cultured pearls and three pairs of dress earrings as well as a chain bracelet. He stole a gold bangle bracelet. In addition he stole a St Mary’s Hospital London nurse’s graduation pin and a sterling silver English nurse’s belt buckle. He stole a laptop computer and a digital camera, including a memory card. He stole a second digital camera and an MP3 player including the memory card.

11. I turn now to describe the offence committed on 4 May 2007 which was the subject of the charge of aggravated break and enter with intent. The victim, whose house he broke into in this case, was seventy years old. She was at home at the time. She had gone to bed a little after midnight in her home in Lucinda Avenue, Wahroonga. There was somebody else staying in the house downstairs. She heard a disturbance during the night but thought it was something else. When she went downstairs in the morning on 4 May 2007 she saw that a side door was open and an internal door to the garage was open and that her car was missing. She saw that her black handbag was missing with a leather purse which contained a number of items. I note however that the offence in this case is break and enter with intent.

12. The offence which I am asked to take into account related to that matter is the theft of the car owned by the seventy year old owner of the house he broke into. More precisely it was the offence of Mr Croese being carried in that stolen car.

13. I turn now to the third offence, the aggravated break enter and steal in company. That was committed on 13 February 2008. He was accompanied by another offender, Michael Tong. They went to Balmoral Avenue in Mosman. Mr Tong went to the side and one of them smashed the glass of a ground floor rear door and went inside. They stole a large number of items of property. Once again listing the property will give anyone a clear idea of how disturbing and upsetting the loss of these items either permanently or temporarily can be to any householder.

14. They included a computer work station, Microsoft software, an iPod, a digital camera and memory stick, a still camera, further memory sticks. He even stole mini cassette tapes and another camera. They stole a flat panel LCD television. In fact there were four of those. They stole jewellery, including a ring and a men’s bracelet. They even stole a wedding band with an inscription “Tony love Jenny 1993”. They stole a men’s watch, in fact two men’s watches and a gold chain. They stole a white diamond engagement ring and two wedding rings as well as silver earrings. They even stole a child’s gold name bracelet and chain with a name plate and a baby’s gold adjustable bangle as well as earrings and another bangle. Mr Croese took some of the property to a loan offence in Sydney and managed to pawn several items of jewellery that evening and got nearly $500 for them. They include the gold bangle and chains and earrings and including the inscribed gold men’s ring.

15. The three offences which I take into account on the Form 1 I should briefly describe so far as that offence is concerned. One if the theft of a car which occurred on 13 February 2008 which belonged to a person. The second was a break enter and steal in Turramurra where items stolen included two laptops, a digital camera and a mobile phone. The third was a break and enter and commit malicious damage in Hornsby where Mr Croese opened an unlocked garage door and smashed the rear driver’s window of a car.

16. As I say, the description of these offences leaves one in no doubt why the Court of Criminal Appeal has emphasised the importance of significant sentences being imposed upon persons who take it upon themselves to break into other people’s property and steal their valuables.

17. Mr Croese pleaded guilty to these three offences. That is to his credit. It facilitates the course of justice and Mr Nathan for the prosecutor has fairly indicated that the plea was at the earliest available opportunity. I therefore propose to allow Mr Croese a discount of twenty-five per cent on the sentence which I will ultimately impose.

18. In addition I should say that I have read a confidential exhibit which was exhibit E. The contents of exhibit E are a matter which I take into account under s 23 of the Crimes (Sentencing Procedure) Act.

19. I have read the authorities about the combined discount which judges may give to offenders who have both pleaded guilty and have the benefit of an additional discount under s 23 of the Crimes (Sentencing Procedure) Act. In particular I have considered SZ v The Queen (2007) 168 A Crim R at 249. I have taken into account the various matters which Mr Williams who appears for Mr Croese has drawn to my attention. I regard an appropriate combined discount as being thirty-five per cent for both s 22 and s 23 matters in this case. The exhibit E I will return to the envelope and direct my associate to reseal it with tape which she will do now. It is to be opened only on the direction of a judge of this court or a judge of a higher jurisdiction. And it will be kept with the papers on the file.

20. Mr Croese has been in custody, bail refused, for a number of periods related to these offences. In total those periods amount to some 245 days and I propose to commence the sentences, or at least one of the sentences, which I will impose from 5 December 2008 by way of acknowledging that period of time which he has spent in custody.

21. These offences were objectively serious. The items of personal property stolen I have already said would cause significant upset to their owners and more than significant inconvenience. One only has to think for a moment of the impact upon someone of losing items such as computers and their memories and cameras and their memories, not to mention the items obviously of close important sentimental value to owners. I regard the offences as generally falling within the middle of the range of objective seriousness but towards the lower end of that range.

22. I need to take into account certain aggravating features of these offences. First, so far as the third offence is concerned of aggravated break and enter and steal, it was committed whilst Mr Croese was on bail. A judicial officer had allowed him on bail to return to the community, no doubt upon a condition that he behave himself. That was after he had been charged with the first offence. Instead of behaving himself Mr Croese took it upon himself to break into a further person’s property and inflict damage to their lives which I have referred to.

23. In addition he has a criminal record. There is a previous offence of break enter and steal. However in this regard I accept Mr Williams’ submission that that offence was committed some eleven and a half years ago and when Mr Croese was a juvenile. In addition I accept his submission that the offences which appear on his criminal record could be far more and more serious given the itinerant lifestyle that he was leading.

24. Before turning to matters which I take into account so far as mitigating the sentence is concerned I need to refer to some personal features which are relevant in Mr Croese’s case. Mr Williams called Mr Croese to give evidence before me. I accept the evidence which Mr Croese has given. He told the court that he was adopted as an infant and the first adoption did not work. During another adoption he suffered some abuse from his parents. His adoptive parents divorced when he was aged five. And between the ages of five and thirteen he was, as he said, going backwards and forwards between his two adoptive parents.

25. At the age of thirteen he was put out of home. He had started using drugs. The pre-sentence report prepared by an officer of the Probation and Parole Service indicates that he started using cannabis at the age of fifteen and then moved on to using cocaine, ecstasy, alcohol and methylamphetamine. When he was put out of home at around thirteen he resided on the streets of Sydney. By the age of seventeen, as he said, he was well and truly addicted to amphetamines.

26. He has undertaken a drug rehabilitation course with the Salvation Army. When he was bailed in June last year he attended their course. He was there for six months and did not complete the course. He explained to me the circumstances of his leaving the course which were related to a lack of supervision when he moved from one stage of the course to another and the fact that some of the other - at least one other - person on the course was using drugs. Most significantly since he has discharged himself from that course, to which I might add he has not been accepted back, he has told me that he has not used any drugs. I accept that evidence.

27. Also most significantly since discharging himself from the drug rehabilitation course he has reconnected with his family of origin. He has met his biological mother and his biological siblings by a remarkable co-incidence through the internet. He has found that he has become very close to that family and has stayed with his biological mother who is living in Forster. He also sees his sister and her family regularly. His mother has organised for him to undertake a job. He told me that his attitude has changed completely and that he has a more positive outlook on life and is experiencing a real bond now between himself, his mother and his three sisters.

28. Significantly he has said to me in evidence that he sees no excuse for his criminal behaviour. He acknowledges the impact which it has had on the victims and regrets his behaviour a lot. He acknowledges that he had no right to be in their homes and accepts responsibility for his crimes.

29. Mr Nathan cross-examined him about his departure from the drug rehabilitation course and he confirmed that they would not take him back and that he has not committed any offences since leaving the drug rehabilitation course. He also confirmed that any period in custody up till now has always been on remand. He has never been under sentence.

30. In addition Mr Williams called Mr Croese’s mother, Rayleanea Angel. She said that the reunion which occurred went very well. She said that her son fits in where he always belonged and all her family love him. She found him a job in a restaurant. He also assists her with her medical condition of diabetes. He is respectful. He works with money in his employment and is implicitly trusted. He has been living with her and, to her observation, has not been involved in any drugs and chooses not to take alcohol. He sees his sister regularly. His mother says that he can have a job as soon as he is released. She acknowledges that he is very remorseful and appears to have a huge amount of support in overcoming his drug habit. And she said he will now never not have a family.

31. Mr Croese’s employment history is one of sporadic and unskilled employment over the years, obviously disrupted by his lifestyle.

32. The pre-sentence report also confirms his accepting responsibility for his actions and acknowledging their seriousness. It assesses him as unsuitable for a Community Service Order or Periodic Detention as well.

33. Mr Williams tendered as an exhibit a psychological report by Mr W John Taylor dated 9 July 2009. Mr Taylor made an effort to assess the likelihood of Mr Croese re-offending. In his report over pages 9-10 Mr Taylor said that he had “formed the opinion that he has a moderate to high-moderate risk of recidivism. In reaching this opinion I have also considered the fact that he has not completed any rehabilitation program and has, up to the present time, led a rather itinerant lifestyle. His chances of rehabilitation will be substantially improved if he is able to gain support and if he is able to maintain his present motivation for change.” Mr Taylor also noted in his report that Mr Croese was not proud of what he had done and was prepared to face up to it and had no right to be in other people’s homes.

34. I return now to the question of the standard non parole period which attaches to one of these offences. S 54B of the Crimes (Sentencing Procedure) Act provides that a court is to set the standard non parole period unless it determines that there are reasons for setting one that is longer or shorter. The reasons are only those referred to in s 21A. The Court of Criminal Appeal has made it clear that the standard non parole period is meant to apply to an offender who has pleaded not guilty and who has been convicted after a trial. Therefore technically the standard non parole period does not apply to this case but it is nevertheless indicated by the Court of Criminal Appeal that it is a guidepost by reference to which a judge can assess how serious Parliament regards this kind of crime.

35. However there are factors also in s 21A which to my mind make this case exceptional and one which is not appropriate for the imposition of the standard non parole period. I take into account for example the plentiful evidence of his remorse in accordance with s 21A(3)(i). On balance I regard his prospects of rehabilitation in accordance with s 21A(3)(h) as good. I say on balance because he does not have a good record with the Probation and Parole Service over the years and he did leave the William Booth Institute Drug Rehabilitation course. And Mr Taylor is guarded. On the other hand the circumstances which Mr Taylor referred to are present so far as his family is concerned and his reunion with his family of origin will in my opinion be a significant influence in his rehabilitation plus the fact that he has voluntarily stopped taking the drugs. I therefore do not regard the standard non parole period as applicable to this case.

36. I need to take into account, so far as the purposes of sentencing are concerned, (a matter which I referred to at the commencement of these remarks) two important features in this case. One is the prevention of crime by deterring this offender and others from committing similar burglaries but the other is the promotion of the rehabilitation of Mr Croese. I should also add that the protection of the community is obviously a factor which looms large in sentencing for these sorts of offences.

37. In accordance with s 5 of the Crimes (Sentencing Procedure) Act it is clear to me that no other penalty than imprisonment is appropriate for these offences and it is not appropriate for that form of imprisonment to be served in any way other than in full time custody. I have taken into account the statistics produced by the Judicial Commission and which both legal representatives referred me to.

38. Taking into account these various factors I commence by making some estimate of initial appropriate sentences for the various offences, a starting place so to speak.

39. For count 1, taking into account the Form 1, a sentence of three years would be appropriate in my opinion; for count 2, a sentence of two and a half years; and for count 3, a sentence of five years.

40. The total of such sentences would be in the region of ten and a half years. That ten and a half years in my opinion would be too much as a result of the process of just adding up the individual sentences. The principle of totality means that I should let some of those sentences run together and allow some of the sentences to be served partially by themselves. In my opinion the total length of the sentences should not be ten and a half years but should be in the region of seven years.

41. However I have not yet applied the discount which Mr Croese is entitled to for both his plea of guilty and the matters relevant to s 23 of the Crimes (Sentencing Procedure) Act. As I said I regard an appropriate discount as thirty-five per cent which takes into account both those factors. A discount of thirty-five per cent on seven years produces an overall figure of some four and a half years or fifty-four months.

42. Mr Williams has argued that there are special circumstances which would justify an adjustment between the non parole period and the additional term. Normally a non parole period for a sentence is about seventy-five percent of the sentence. In this case seventy-five per cent of fifty-four months would be a period of some forty months but I take into account the matters put to me by Mr Williams - to which Mr Nathan did not take exception - that Mr Croese has never been in custody as a sentenced prisoner before. I take into account the importance of his process of rehabilitation and re-establishing his links with his family and the fact that he is relatively young. I regard an appropriate non parole period as thirty-three months in custody instead of forty months in custody. As I said I propose to back date the sentences to 5 December 2008 to take into account the period of some 245 days in custody up until today.

43. Mr Croese I’m going to sentence you now if you would stand up. I am going to sentence you first for the second count, the second offence, which is break and enter on 7 February 2007. For that offence, taking into account the matters on the Form 1, I sentence you to eighteen months imprisonment to commence on 5 December 2008 and to expire on 4 June 2010. That is a fixed term. In fact if I said I am taking into account the Form 1 in respect of count 2, I withdraw that. There is no Form 1 for count 2. And count 2 is the offence I have just sentenced you to for eighteen months.

44. I now turn to count 1 which is the aggravated break and enter with intent committed on 4 May 2007 and taking into account the Form 1, I sentence you to two years imprisonment. That is to commence on 5 January 2009, one month after the previous sentence and to expire on 4 January 2011. Once again that is a fixed term.

45. Turning to count 3, the aggravated break and enter and steal in company committed on 13 February 2008, I fix a non parole period of two and a half years commencing on 5 March 2009 and expiring on 4 September 2011. The balance of the term will be two and a half years commencing on 5 September 2011 and expiring on 4 March 2014.

46. Have a seat Mr Croese. Mr Croese just subject to what the lawyers agreeing, your first release date is just over two years time on 4 September 2011.
HIS HONOUR : Now the first thing gentlemen is whether there are any factual errors in my remarks on sentence that I should address. No, no. The second thing is the mathematics, whether the mathematics - do you want me to recite them again?

Count 2, eighteen months, 05/12/08 to 04/06/10 fixed term. Count 1, two years 05/01/09 to 04/01/11 fixed term. Count 3, overall five years from 5 March 09 to 4 March 14. Non parole period two and a half years 5 March 09 to 4 September 11.

WILLIAMS: Correct your Honour.
HIS HONOUR: Mathematics okay?
WILLIAMS: Yes that’s fine.
HIS HONOUR: Mr Nathan?
NATHAN: Yes.
HIS HONOUR: All right, and the overall sentence is more than three years so I don’t fix the non parole myself but I propose to recommend to the Parole Authority that they consider the matters referred to in the Probation and Parole report.

47. I recommend that the Parole Authority when considering Mr Croese’s parole take into account the recommendations contained in the pre-sentence report, exhibit B, dated 15 July 2009, including his attendance at a drug and alcohol program in custody and following his release from custody, regular reporting and home visits, urinalysis, referral to employment or job training providers and monitoring his accommodation issues. I make those recommendations.

48. Mr Croese you have heard me give my reasons. I have had to balance the seriousness of the crimes you have committed against your obvious change in the last few years but I cannot just let you off and send you out now. It is not appropriate because of the crimes you have committed. Your first date when you are eligible for release, as I said, is 4 September 2011. That is just over two years from now. Whether you are released or not depends on the Parole Authority and your obvious performance whilst you have been in custody and I have recommended that if they release you then, then they take into account what the Probation and Parole Service said about you. Do you understand that? All right. Good luck Mr Croese.

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