R v Mati

[2020] NSWDC 863

District Court

New South Wales

Medium Neutral Citation:

R v Mati [2020] NSWDC 863

Hearing dates:

2 December 2020

Date of orders:

2 December 2020

Decision date:

02 December 2020

Jurisdiction:

Criminal

Before:

ML Williams SC DCJ

Decision:

A term of imprisonment of 23 months with a non-parole period of 16 months: at [24].

Catchwords:

SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Co-offenders — General principles — Objective seriousness — Purposes of sentencing

SENTENCING — Subjective considerations on sentence — Drug addiction — Aboriginal offenders — Age of offender — Special circumstances

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Imbornone v R [2017] NSWCCA 144

R v Henry (1999) 46 NSWLR 346

R vPonfield [1999] NSWCCA 435

R v Qutami (2001) 127 A Crim R 369

Veen v The Queen (No 2) (1988) 164 CLR 465

Texts Cited:

Nil

Category:

Sentence

Parties:

Regina (Crown)

Tassiano Mati (Offender)

Representation:

Ms E Bennett (Solicitor for the Office of the Director of Public Prosecutions)
Ms S Hedberg (Solicitor for the offender)

File Number(s):

2020/11766

Judgment

1. Tassiano Mati, aged 23, pleaded guilty at an early stage to one count of aggravated break and enter in company and stealing contrary to s 112(2) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment, with a standard non-parole period of five years..

2. It is conceded in respect of the offender that a term of full-time imprisonment is warranted and it is unnecessary for me to consider any alternatives

3. I take into account for the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999.

4. He has been in custody since the date of the offence, namely 13 January 2020 and was serving the balance of parole up until 14 October 2020. It is agreed, in the exercised of my discretion that the term of imprisonment should start on 13 June 2020.

5. The offence was committed in company with Mr Nikolic at about 1.30pm on 13 January 2020. They were in the vicinity of 74 Spring Street, Arncliffe in a car which belonged to Mr Nikolic. They went to the back of 39 Terry Street where the victim Ms Hanna and two other people lived. They broke into the flat by removing a flyscreen and a pane of glass in a side window. It is not clear who went into the flat but fingerprints belonging to the co-offender were located at the point of entry. The occupants of the main house were alerted to the sound of banging coming from the granny flat. Ms Hanna saw the offender and Nikolic leaving through the front gate carrying lap top bags, her handbag and various other bags. Police recovered items belonging to the occupants scattered around the surrounding area. They included clothing, sunglasses, jewellery, three Apple iPhones, a laptop computer, reading glasses, an Australian passport, $10 in Australian currency, $30 in Chinese currency and some medication.

6. It is acknowledged that, looking at the objective seriousness of the matter, the element of aggravation relied upon was that the accused was in company with Nikolic. All of the stolen items were returned to the victims. There was a limited degree of planning and it is agreed that the fact that the offence was committed in the home of the victims is, strictly speaking, an aggravating factor; however, as in many of these cases, although it is not an element of the offence, it is a matter not of any particular significance. It is acknowledged that a further aggravating factor is that he was on conditional liberty or parole at the time. It is agreed and I accept that the offending falls between the low and mid-range of objective seriousness. He has a significant record, including lengthy periods in custody, for a young man and his prior convictions are an aggravating factor under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, as is the fact that the offence was committed on conditional liberty (s 21A(2)(j)).

7. He was serving two years and ten months with one year and nine months non-parole period commencing 15 December 2017 for firearms offences. He had a two year and three month with 15 month non-parole period commencing 2 March 2016 for an aggravated break and enter with intent and a nine month sentence started on 2 June 2015 was partly concurrent with that for doing an act with intent to pervert the course of justice. He previously breached a parole order and parole was revoked on 15 November 2014 for four months and a further breach of parole which led to him being in custody from 15 August 2017 to 1 June 2018.

8. His first term of imprisonment was 12 months with six months non-parole from 14 March 2014 for property offences. The parole breach reports show that he has had continuing disregard for the obligations of his parole conditions and his response to supervision has been poor.

9. The mitigating factor acknowledged by the Crown is the early plea of guilty.

10. His prospects of rehabilitation in the light of the subjective material to which I will turn would have to be guarded because he clearly needs intensive treatment, supervision and rehabilitation.

11. The subjective case comes via a report of a psychologist Dr Wearne It is not tested or adopted or otherwise subject to challenge. The Crown takes no point on that, bearing in mind the cautions expressed in cases such as R v Qutami (2001) 127 A Crim R 369 and Imbornone v R [2017] NSWCCA 144, and the Crown adopts the subjective material in submissions.

12. He suffered a traumatic brain injury at the age of 14 following a traffic accident and he tells me that he had a sum of approximately $500,000 invested with the Public Trustee as a result of a settlement of a damages claim from that accident. He receives about $400 a week allowance from the Trustee.

13. Although he has a traumatic brain injury, the assessments showed that he was performing within normal limits, that is, in the average to superior range and as expected at a pre-morbid level. He demonstrates very minor weaknesses in basic attention and concentration but overall there is no evidence of any organic brain impairment or long term changes to cognition as a result of the traffic accident and he has made excellent cognitive recovery from it.

14. He was born to a Samoan father and an Aboriginal mother. He identifies with both cultures and grew up in the Liverpool region. His father was in gaol throughout his formative years. He went to school until Year 8 and although he was an above average student, he was not well behaved and got involved in fights and selling drugs on school grounds. He has had no formal employment since finishing school apart from some casual labouring jobs, lasting no longer than a week and appears to live on the proceeds of his damages claim.

15. He has a lengthy history of alcohol abuse starting from age 13, cannabis at age 12 and using methamphetamine at age 15 and started injecting it at age 16 as well as heroin up until 2019. He has been on a Suboxone Program since then, but he continues to use methamphetamine and had been taking benzodiazepines on a daily basis for a couple of years leading up to his current incarceration.

16. He was diagnosed with Oppositional Defiant Disorder and Attention Deficit Hyperactive Disorder when he was younger and a report of Dr Spira, a neurologist, also includes a diagnosis of Tourette’s syndrome.

17. He expressed some remorse for his actions, but I accept the Crown’s submission that he lacks any real insight into the effects of his offending on the victims, as well as the wider community. I do not accept his attempt to shift blame onto the co-offender as it illustrates an unwillingness to take responsibility for his own actions.

18. Dr Wearne accurately summarises the position as being that he clearly lacks purpose and structure in his life and this makes him especially vulnerable to substance abuse and negative influences of anti-social and criminal peers.

19. I take into account the certificates that had been tendered by Ms Hedberg, solicitor for the offender, showing that he has completed the EQUIP’s addiction program and a work and development order.

20. The Crown accepts that he requires rehabilitative treatment, particularly in the absence of a strong support network.

21. I take account of Ms Hedberg’s submissions as to the absence of a number of features from the old guideline judgment in R v Ponfield [1999] NSWCCA 435, but as is now clear since the introduction of s 21A of the Crimes (Sentencing Procedure) Act 1999, the guideline has been recognised as having fairly limited utility.

22. It is clear that his lengthy criminal history does not entitle him to leniency but it is not so bad as to rise to the Veen v The Queen (No 2) (1988) 164 CLR 465 levels. There is no evidence of any drug or alcohol treatment at any stage. That is clearly something which must be addressed.

23. I accept that, as the Court said in R v Henry (1999) 46 NSWLR 346, his ability to exercise appropriate judgment or choice was incomplete, no doubt given his extensive drug and alcohol consumption since age 12 or 13. I accept that the standard non-parole period has limited application in this case, due to the early plea of guilty, the evidence of remorse, the need for a lengthy period of supervision, his subjective background and the relatively low assessment of objective seriousness. A finding of special circumstances should be made to a limited extent in view of the need for drug and alcohol rehabilitation and the risk of institutionalisation.

24. The orders that I make are:

1. The offender is convicted of the offence.

2. Taking into a discount of 25% for the pleas of guilty, I impose a sentence of imprisonment of 23 months, to commence on 13 June 2020.

3. I impose a non-parole period of 16 months, expiring on 12 October 2021.

4. I find special circumstances.

Note – These extempore remarks were revised without access to the court file.

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Decision last updated: 08 March 2021