R v Malo

[2018] NSWDC 443

District Court

New South Wales

Medium Neutral Citation:	R v Malo [2018] NSWDC 443
Hearing dates:	11 May 2018
Date of orders:	31 August 2018
Decision date:	31 August 2018
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	See [43]
Catchwords:	CRIME – break and enter – special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v McNaughton (2006) 66 NSWLR 566 R v Ponfield (1999) 48 NSWLR 327 Veen v The Queen (No 2) (1988) 164 CLR 465
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Nacagilevu Dakulala Malo (Offender)
Representation:	Solicitors: ODPP (Crown) Legal Aid (Offender)
File Number(s):	2017/161478
Publication restriction:	None

Remarks on Sentence

Introduction

1. The offender appears before the Court today for sentence in relation to a matter to which he has pleaded guilty on the Crown Sentence Summary, namely a breach of s112(1)(a) of the Crimes Act 1900, being break and enter a dwelling house to commit a serious indictable offence, namely steal.

Offence

2. The charges relate, as I say, to events that occurred on 29 May 2017 between 10.58am and 11.30am at Auburn where it was alleged by the Crown and accepted by the offender that he broke and entered the dwelling house of Can Odabas at 9/44-48 Northumberland Road, Auburn and while in those premises did steal certain property, being a rose gold Apple iPhone, an Apple iPad, a watch, a small amount of money being $15, all of which were the property of the aforementioned occupant of the premises.

Maximum Penalty

3. The maximum penalty for the offence, of course, represents the legislature’s assessment of the seriousness of the offence. In exercising its sentencing discretion the Court must always arrive at an outcome that is just in all of the circumstances. The offence has a maximum penalty of 14 years imprisonment and there is no applicable standard non-parole period.

Procedural History

4. The offending was committed, as I have said, on 29 May 2017 on which date the offender was arrested. He was charged on 30 May 2017. On 4 October 2017 the offender was committed for sentence in the District Court. He pleaded guilty to the charge on 30 May 2017 at a relatively early stage, a matter to which the Court will have regard in determining and assessing the value of the guilty plea. The offender has been in custody since 29 May 2017.

Evidence on Sentence

5. The evidence on sentence comprised, on behalf of the Crown, the Crown bundle (Exhibit A). On behalf of the offender was submitted a Pre-Sentence Report by Casia Faniuu, Community Corrections dated 2 May 2018 (Exhibit B) and the offender’s submissions on sentence (MFI 1).

Agreed Facts

6. The facts agreed between the parties were that on Monday 29 May 2017 at approximately 10.58am police received a call from an independent witness who was watching the offender climbing onto the balcony of Unit 9 at 46‑48 Northumberland Road, Auburn. Unit 9 is located at the rear of the building on the first floor. The witness supplied police with a description of the offender and his clothing which was then broadcast over Police Radio.

7. Police attended a short time later and approached the rear of the premises and whilst in the rear yard the witness identified themselves to police and pointed out the balcony the offender climbed. The witness indicated to the police a small window off to the left of the balcony which the offender went through. The window had a cut flyscreen which was partially pulled off. Police climbed onto the balcony and knocked on the glass sliding door of the unit.

8. After about ten seconds the victim came to the door. Police asked the victim had he seen anyone inside and he informed the police that he had been asleep in his bedroom.

9. The offender put red and black gloves on before looking through the ground floor windows of the unit below. The offender climbed onto the balcony of unit 9, cut the flyscreen, climbed through the open window and stole the items I have previously referred to from those premises. The offender noticed police outside the building so in an attempt to avoid detection the offender walked to the top flight of the stairs and hid the property which he had stolen from unit 9, together with a knife, a screwdriver and the red and black gloves in various locations outside unit 10.

10. The offender walked down the common staircase and out the front door. A witness identified the offender as the same person they saw climb through the unit window and informed the police of same. When police observed that the offender’s description matched that supplied over the Police Radio police arrested the offender and cautioned him before conveying him to Auburn Police Station. Police located the stolen iPhone, iPad and watch hidden on the top floor of the common staircase. The watch was found in a pair of shoes, with the screwdriver outside the door to unit 10 and the iPad and iPhone were found under the doormat to unit 10. The fold-up knife and black and red gloves were located in another pair of shoes.

Objective Seriousness

11. A predominant factor relevant to the sentence in any case is, of course, the objective seriousness of the offending. It is not, however, necessary to articulate a determination of objective seriousness by placing the offence along a hypothetical range. It remains an essential task, however, to undertake an evaluative assessment of the objective seriousness of the offence. The starting point, of course, is the guideposts to which I have already referred.

12. Next, one has regard to the particular circumstances of the offending in assessing the overall criminality. The circumstances which exist here demonstrate the offence is in the low-to-medium range of overall criminality. There is an absence of violence in the offending, as well as the relatively low value of the goods that were stolen during the offending.

13. The Crown, however, has pointed the Court to the guideline judgment of R v Ponfield (1999) 48 NSWLR 327 in which the Court of Criminal Appeal suggested that if the property stolen may have some sentimental or other value to the victim then that is a matter which might enhance the seriousness of the offending. I have taken that judgment into account and in the absence of evidence I infer that the items stolen would have been of some value to the complainant. It is difficult, however, to ascribe any particular degree of enhancement of the offending by reference to that matter in the absence of evidence.

14. The aggravating factors which are relevant and exist here include that the offender has a record of previous convictions, particularly with regard to this type of offending. I have taken into account, as I have said, the guideline judgment of Ponfield in considering that matter. The offence was part of a plan or organised activity. The offence was committed plainly for financial gain.

15. The mitigating factors which exist here and are relevant to the sentencing exercise include the fact that the injury, emotional harm, loss or damage caused by the offence was not particularly substantial, the remorse, such as it is, shown by the offender and the plea of guilty by the offender.

Subjective Case

16. The offender’s subjective case is that he is now 37 years of age. In the Pre‑Sentence Report the offender described a difficult family upbringing in Fiji, characterised by limited finances, underage drinking and sibling rivalry with elder brothers. During the offender’s upbringing his parents were in Australia working to bring the offender and his brothers to Australia.

17. The offender described a distant relationship with his deceased father but a comparatively extremely supportive relationship with his mother. The offender noted a close relationship with a sibling who had been deported to Fiji following drug supply offences and much of the offender’s behaviour was role-modelled from that sibling. Prior to this offending, the offender was residing with his brother in South Australia in an attempt to avoid the influence of negative associates in Sydney. He returned to Sydney following a dispute with his brother and resided with his mother prior to the subject offending. The offender has a child with an ex-partner, however contact is infrequent due to previous offending and periods of incarceration.

18. The offender attained a Higher School Certificate whilst in custody and has completed other certificates in custody, including a first aid certificate and a Certificate II in Welding.

19. The offender worked at a flour mill in South Australia in 2016 and when he returned to Sydney he was engaged as a yardsman for a car dealer. His employer described him as an extremely hardworking and honest worker, indicating that he will attempt to secure the offender ongoing employment upon release.

20. The offender reportedly began drinking from the age of ten when he reported that he was forced to consume alcohol by his older brothers in Fiji. Following the death of his father at the age of 15 the offender began consuming two cases of beer each weekend. This increased to the offender’s current rate of consumption which, prior to his arrest, comprised three 700 ml bottles of alcohol and a case of beer each weekend day.

21. The offender described his initial illicit substance use as socially motivated; that he began using cocaine at functions with peers at the age of 27; he has maintained this use to a rate of 3 to 4 grams each weekend. At the age of 33 the offender advised he began using methamphetamines with his peers and that resulted in a regular use of 2 to 3 grams each weekend.

Deprived Upbringing

22. In considering the offender’s background it can, in some respects, be described as deprived. He was raised in a community surrounded by alcohol abuse, drugs and violence which may mitigate against his sentence because his moral culpability is likely to be less than the culpability of an offender whose formative years had not been marred in that way. That is a matter to which the Court has had regard in determining the appropriate sentence in this case.

Previous Convictions

23. Section 21A(2)(d) of the Crimes (Sentencing Procedure) Act provides that the aggravating factors to take into account in determining the appropriate sentence includes that the offender has a record of previous convictions. In a bench of five in a guideline judgment of R v McNaughton (2006) 66 NSWLR 566 the Court of Criminal Appeal settled how a sentencing judge is to deal with a criminal record of an offender upon sentence. The judgment established seven principles to be applied in circumstances such as these and they are principles to which I have had regard in considering the sentence in this case.

24. Of course, the Court is nevertheless required to explain the manner in which the prior record has been taken into account. The offender has a long history of criminal offending, including drug offences, assault with intention to rob, take and drive conveyance without consent, assault an officer in the execution of his duty. There are a number of offences committed in the past which bear some resemblance to the current offending.

25. In May 2000 he was charged with break and enter into a building and steal value of less than $15,000. In June 2000 he was charged and convicted of break and enter a building, again to steal. The offender was sentenced with a s9 bond for 12 months. Subsequently the offender did not comply with the conditions of the good behaviour bond and was sentenced to a term of imprisonment of 12 months.

26. Also in June 2000, the offender committed a further act of break and enter and steal for which he received a term of imprisonment of six months. Over two days in August 2000, there was yet a further offence of break, enter and steal which was taken into account on a Form 1 matter in respect of another charge. In October 2000, the offender committed acts giving rise to a charge and conviction of break and enter a building for which he was sentenced to a term of imprisonment of six months.

27. In April 2005, the offender committed acts which gave rise to a charge of aggravated break and enter and commit serious indictable offence resulting in a term of imprisonment of two years. In September 2007, the offender committed acts which gave rise to the charge and conviction of break and enter with intention to steal for which he was sentenced to a term of imprisonment of 12 months. In October 2012, the offender committed acts giving rise to the charge and conviction of aggravated break and enter resulting in a term of imprisonment of two years and six months.

Contrition and Remorse

28. Evidence of contrition or remorse in respect of the subject offending is, of course, a relevant consideration. It must be assessed in context. It is but one feature of the post-offence conduct upon which an offender may seek to rely as a matter which has the potential to mitigate penalty. Ordinary human experience, however, would suggest that it is only natural that a person who has committed some misdeed would wish to make the most favourable impression on the Court in seeking to make amends for the offending.

29. In the present case the evidence of remorse is, of course, the plea of guilty at a relatively early time. The author of the Pre-Sentence Report did note, however, that the offender demonstrated a lack of insight into his offending, describing it as opportunistic, advising “I had no thought prior to doing it or the people who lived there; I just saw an open window.” I note the offender also gave evidence before the Court during the sentence hearing at which time remorse was also expressed.

History of Addiction

30. The offender has a history of addiction which has some relevance in the sentencing exercise in that it suggests that he may benefit from serving part of the sentence in the community. The evidence established that the offender has had an alcohol addiction since the age of 15 and an addiction to illicit substances such as cocaine and methylamphetamine since his mid-20s.

Rehabilitation

31. Rehabilitation, of course, looms large in cases of this nature and having given careful consideration to the evidence which informs the matter I find that the prospects of successful rehabilitation are moderate or, alternatively, guarded. The evidence includes the opinion of the author of the pre‑sentence report who identified that the offender will require significant support to address his illicit substance abuse and maintain distance from negative associations.

Risk of Re-Offending

32. Re-offending is also relevant. Consistent with my finding concerning rehabilitation I find the likelihood of reoffending is guarded. I have also had regard to the opinion as to this matter referred to by the author of the Pre‑Sentence Report. Any risk of re-offending, of course, increases the need for specific deterrence in sentencing an offender such as the present.

Sentencing Approach

General Principles

33. The approach to sentencing, of course, is guided by s 3A of the Crimes (Sentencing Procedure) Act which sets out the purposes for which a court may impose a sentence. They include punishment, deterrence both specific and general, protection of the community, rehabilitation of the offender, accountability by the offender, denunciation to the offender and recognition of the harm done to the victim of the crime and to the community generally.

34. Those purposes, of course, align with what had developed as the basis for sentencing in the common law as referred to in detail in the High Court decision of Veen v The Queen (No 2) (1988) 164 CLR 465. Of course the emphasis to be placed upon the various purposes of sentencing varies according to the circumstances of each case, including the objective and also the subjective considerations.

Proportionality

35. I am also guided by the principle of proportionality and mindful of the fact that the punishment imposed upon the offender must fit the crime. A sentence should not be increase beyond what is proportionate to the crime in order to merely extend the period of protection from society or the risk of recidivism on the part of the offender. It is ultimately the role of the Court to ensure that the offender is adequately punished.

36. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances. I have already referred to my finding as to the objective gravity of the offending in this particular case, aggravated by the fact as referred to previously.

Section 5 Threshold

37. Before turning to a sentence of imprisonment the Court must be satisfied having considered all possible alternatives that no sentence, including a non‑custodial sentence, other than imprisonment is appropriate. In this case the Crown contends that the threshold under s5 has been met and that a term of imprisonment is warranted. Counsel for the offender quite fairly also conceded that the threshold had been met. I find that, after considering all alternatives, imprisonment by way of full-time custody is appropriate.

Guilty Plea

38. In accordance with s22 of the Act the Court must, of course, take into account the fact that the offender has pleaded guilty and the circumstances in which that plea was entered. The Court is permitted to impose a lesser penalty than it would otherwise impose in circumstances where the offender does, in fact, plead guilty.

39. In this case the offender pleaded guilty on 30 May 2017 at a relatively early stage, albeit in the face of a strong Crown case. Counsel for the offender submitted that a discount on sentence of 25% would be appropriate; the Crown agreed and I concur. Accordingly, the sentence will be reduced by 25%.

Special Circumstances

40. The Court is also required to have regard to whether any special circumstances exist such as to warrant a departure from the statutory ratio between parole and non-parole periods. During the sentence hearing counsel for the offender referred to written submissions that a longer period of supervised parole would be beneficial to allow the offender to address his drug addiction issues. It was suggested that all previous attempts, however, at rehabilitation had failed. Having regard to those matters and the addresses of both parties in that regard I decline to find that special circumstances exist.

Consistency

41. Statistics were provided to the Court by one or both of the parties. Of course, they are a matter to which the Court may have regard but are by no means binding. Each case is different and a sentence must be determined having regard to the peculiar features of each case.

42. I note that the 560-odd cases referred to in the statistics that 86% of offenders were sentenced to a period of full-time custody, with the vast majority of the sentences between 18 and 48 months. Whilst I acknowledge those statistics, I have not determined the sentence by reference to them other than to ensure that the sentence is consistent with other similar offending.

Sentence

43. I impose a sentence consisting of a non-parole period of two years and three months commencing 29 May 2017, that being the day you were taken into custody and expiring on 28 August 2019, at which time you will be eligible for parole. I impose a head sentence after discount of three years.

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Decision last updated: 08 February 2019