R v Michie

[2024] NSWDC 652

District Court

New South Wales

Medium Neutral Citation:

R v Michie [2024] NSWDC 652

Hearing dates:

04 October 2024 and 18 November 2024

Decision date:

06 December 2024

Jurisdiction:

Criminal

Before:

Wass SC DCJ

Decision:

See [64] – [72]

Catchwords:

CRIME – Sentencing – Drug addiction – Numerous property crimes – Disadvantage – Disgraceful breach in juvenile custody – Inappropriate labelling in criminal history records – Insufficient rehabilitation services

Legislation Cited:

Crimes Act 1900 (NSW)

Inclosed Lands Protection Act 1901 (NSW)

Cases Cited:

Bugmy v R (2013) 249 CLR 571

Category:

Sentence

Parties:

Rex (Crown)
Benjamin Michie (Defendant)

Representation:

Counsel:
Mr T Dwyer (Solicitor) (Crown) – sentence hearing
Mr B Hatfield (Crown) – sentence judgment
Mr B Green (Defendant)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Drinkwater Criminal and Family Lawyers (Defendant)

File Number(s):

2023/105645, 2023/143443, 2023/184430, 2023/184461, 2023/237674

JUDGMENT

Offences

1. Mr Benjamin Michie faces sentence for the following:

1. An offence of an aggravated break and enter of a dwelling in company stealing value not exceeding $60,000 pursuant to s 112(2) of the Crimes Act 1900 (NSW) (‘Crimes Act’), which carries a maximum penalty of 20 years imprisonment with a standard non‑parole period of five years. Together with that matter, Mr Michie wishes to have taken into account on a Form 1 an offence of intentionally or recklessly destroying or damaging property pursuant to s 195(1A) of the Crimes Act.

2. Three offences of knowingly driving a stolen motor vehicle pursuant to s 154A(1)(b) of the Crimes Act, which each carry a maximum penalty of five years.

3. Two offences of break and enter a dwelling-house or building and committing a serious indictable offence, namely larceny, which each carry a maximum penalty of 14 years.

4. An offence of entering a dwelling with an intent pursuant to s 111(1) of the Crimes Act, which carries a maximum penalty of ten years imprisonment.

5. Five offences of knowingly driving a stolen car pursuant to s 154A of the Crimes Act, which carries a maximum penalty of five years imprisonment.

6. An offence of in a police pursuit, not stopping and driving dangerously pursuant to s 51B(1) of the Crimes Act, which carries a maximum penalty of five years imprisonment and an automatic licence disqualification of five years.

7. An offence of break and enter a dwelling-house or building and committing a serious indictable offence pursuant to s 112(1)(a) of the Crimes Act, which carries a maximum penalty of 14 years imprisonment.

8. An offence of in a police pursuit, not stopping and driving recklessly, which carries a maximum penalty of five years and an automatic disqualification of five years.

9. An offence of break and enter a dwelling-house to commit a serious indictable offence pursuant to s 112(1)(a) of the Crimes Act, which carries a maximum penalty of 14 years imprisonment.

10. There are also some matters to be sentenced on a s 166 certificate:

1. Two offences of unlawful entry into inclosed lands pursuant to s 4(1)(b) of the Inclosed Lands Protection Act 1901 (NSW), which carry a maximum penalty of five penalty units each.

2. A driving whilst disqualified, which carries a maximum penalty of 12 months imprisonment and an automatic disqualification of 12 months;

3. A hinder or resist police in the execution of their duty pursuant to s 60(1AA) of the Crimes Act, which carries a maximum penalty of 12 months imprisonment.

2. The maximum penalties and standard non-parole periods where they apply are important legislative guideposts in the sentencing exercise.

3. In short, between 21 January 2023 and 2 April 2023, Mr Michie carried out numerous property offences whilst in the grip of unchecked drug addiction.

Material

4. I have had regard to the materials tendered on sentence, including those materials in the Crown sentencing bundle and the psychiatric assessment report of Dr Christopher Bench dated 25 September 2024.

5. I have been assisted by the oral and written submissions provided by both parties for which I am grateful.

Facts

Matter H93053330 

6. In respect of sequence 2, the aggravated break and enter in company, in the early hours of 30 March 2023, Mr Michie and his co-offender rode bicycles to a house in Sturt Place Taree and scoped out the property. They returned half an hour later, forced open the rear garage roller door causing significant damage. Mr Michie stole several items, including a screwdriver from the garage.

7. In respect of sequence 3, Mr Michie broke into a locked caravan leaving a shoe behind. He and his co‑offender then forced open a locked internal door between the garage and the house, entered a bedroom and, using a screwdriver to open a gun safe, stole gun paraphernalia. Mr Michie left the screwdriver on the safe before taking additional items. They stole items valued at $17,900. The damage to the roller door, caravan and internal door locks and exterior was estimated to be in the sum of $2,500.

Matter H77055623

8. In respect of sequence 1, in the following week on 7 February 2023, someone broke into a house in River Street in Cundletown and stole a Mazda 3 motor vehicle. Mr Michie later took possession of it and drove to Graded Ridge Road before abandoning it, leaving his DNA behind.

9. In respect of sequence 3, a month later, on 10 March 2023, Mr Michie knowingly drove an Audi A3 motor vehicle that had been stolen from Jesmond. He left his fingerprints and DNA behind.

10. In respect of sequence 10, Mr Michie on 6 April 2023, went to a house at Old Bar, where he left a mess behind and the door open. A bedroom window was damaged, some clothes were missing, he helped himself to food and left his DNA. He had been in the house between 3 and 31 March 2023 with the intention to steal items.

11. In respect of sequence 5, in the early hours of 17 March 2023, using scissors to force open the rear sliding door of a house in Taree, Mr Michie entered and stole items from bedroom drawers and keys to a Yamaha motorcycle. He road it away leaving his bicycle and his DNA behind. Police found the motorcycle and more of Mr Michie’s DNA the following day.

12. In respect of sequence 7, sometime around 2 April 2023, Mr Michie broke into a house in Tinonee through a window, having removed the fly screen. In a rare attempt to conceal his crime, CCTV cameras had been taken down and the security hard drive was missing. A window was smashed, the wrought iron door on the lower level had been removed, the firearm safe was opened, and two rifles and pistols were missing. Mr Michie’s DNA was found on a gun safe handle and a gardening tool handle in the gunroom.

13. In respect of sequence 8, at 11:40 pm on 28 March 2023, several people broke into the Uniting NDIS Centre in Taree. That is an organisation dedicated to providing disability services and support to people of the Taree area. It is a much needed service. Three vehicles were stolen; a Toyota Camry, a Toyota RAV4 and a KIA Carnival. At 3:00 am on 29 March, the Camry had been abandoned with Mr Michie and a co-offender fleeing from the vehicle. Mr Michie left his DNA behind.

Matter H93429966 

14. In respect of sequences 1 and 10, on 22 January 2023, a Hyundai i30 and a Toyota Corolla were stolen from a unit block in Taree. The Hyundai was found the following day. Mr Michie left his DNA on the driver’s seat. In March 2023, the Corolla was located, Mr Michie left his DNA on the steering wheel.

15. In respect of sequence 2, either late on 29 January 2023 or early on 30 January 2023, somebody stole a Mazda 3 from outside a house in Taree. The vehicle was found three weeks later, Mr Michie had left his DNA behind.

16. In respect of sequence 3, on 14 March 2023, someone broke in through a window into a unit in Taree and stole keys and a BMW X3. The vehicle was found the following day, Mr Michie left his fingerprints behind.

17. Sequences 4, 6, 11 and 5 involve knowingly driving a stolen car, a police pursuit, a break and enter, and driving whilst disqualified. In the meantime, on 15 March 2023, Mr Michie drove the stolen BMW to another property in Taree. He walked around the premises, forcing open a side gate, removed the fly screen from the rear dining room window and smashed the window to enter. He stole keys to a Holden Commodore, a pink laptop, coins and rings. He then entered the car and fled. At about 5:00 pm, police saw Mr Michie driving. After making eye contact with the police, he accelerated sharply, speeding above the 50 kilometre per hour limit forcing other motorists to brake. The police terminated the pursuit at 5:06 pm for public safety. At 5:20 pm, the Holden was found abandoned. Again, Mr Michie left his fingerprints behind. He was disqualified at that time from driving until 20 November 2026.

Matter H94218218

18. In respect of sequence 1, on 20 March 2023, Mr Michie broke into a house in Taree. The alarm system was damaged, the rear sliding door was smashed, the garage roller door was pushed in and a box in the garage was damaged. Several items of jewellery were stolen. Mr Michie left his DNA behind.

Matter H79684277 

19. In respect of sequence 1, the police pursuit; on 30 March 2023, police saw Mr Michie riding a motorcycle in Taree. Upon noticing the police vehicle, he accelerated out of a yard ignoring police lights and sirens. A pursuit began but was terminated when Mr Michie drove onto a pedestrian pathway reaching speeds up to 80 kilometres an hour in a 50 kilometre zone. At 9:15 pm, he continued to another house in Taree, parked the motorcycle in the driveway, fled on foot, jumping fences during which he dropped his mobile phone.

Matter H77055623

20. In respect of sequence 9, Mr Michie continued to run to another house and tried to hide in a garage. Hearing the resident call out, he jumped over a gate into the backyard, dropped a glove as he did so, then into the pool area and finally over a back fence into another residence. He left his DNA behind on the motorcycle handlebars, the glove and the mobile phone.

Matter H93429966 

21. Sequences 7 and 8 involve Mr Michie on 31 March 2023, upon police having been informed about Mr Michie and arriving, Mr Michie fled on foot and jumped over a side fence. Police found him in the rear yard where he tried to climb the fence to avoid arrest. As officers restrained him, he kicked out and pushed police. He continued to resist, rolling onto his stomach and attempting to stand whilst the officers tried to handcuff him. He was finally arrested on 31 March 2023, and to the extent there are custodial sentences they will commence from that date.

Plea of Guilty / Procedural History

22. Mr Michie pleaded guilty in the Local Court on 27 May 2024. He will be afforded a 25% discount on sentence for the utilitarian value of that plea.

23. The sentence hearing commenced before me on 4 October 2024. It was adjourned to 18 November 2024 so that Mr Michie could try and find a place in a residential drug rehabilitation facility. Unfortunately, all efforts to find him appropriate drug rehabilitation have been unsuccessful, a matter to which I will return.

Objective Seriousness

24. In assessing the objective gravity of the offending, I have taken into account the fact that the offending was largely unplanned, badly executed and done seemingly with little intent other than to take, what were perceived to be, valuable items.

25. There was no attempt to sell or break down any of the stolen cars, they were often simply abandoned only hours after they were stolen.

26. Mr Michie broke into houses, ate the residents’ food and made a mess. The items stolen were often the things that were to hand.

27. In almost every case he left behind either his DNA or a fingerprint. In only one case did he have gloves, but I am mindful that he was riding a motorcycle. Even in that case, he was not wearing them at the time and dropped one to be found by police.

28. In one instance he did seem to undertake some pre‑offence observation of the property.

29. I have had regard to the value of the property taken.

30. By far the most serious offence is the theft of the weapon where he is the subject of a charge which carries a 20 year term of imprisonment with a standard non-parole period of five years.

31. Most of the offences have been described and agreed as below the mid‑range or at the lower end of the range, some were at the mid-range.

32. There is only one matter which carries a standard non-parole period. In that case it is agreed that the offending falls just below the mid-range. I agree. I have come to that view mindful of the following characteristics:

1. There was some planning with the offenders arriving and returning to the property shortly thereafter.

2. They broke in causing damage.

3. The co‑offenders took ammunition from a gun safe and several knives.

4. They took valuable items totalling about $17,900 in monetary value.

5. They also took items of sentimental value.

6. The offending was aggravated by reason of the fact it was committed in company.

33. Mr Michie also faces an increased sentence for that matter by reason of the matter on the Form 1. I have not taken it into account in assessing the objective seriousness of the main offence but rather, consideration must be given to deterrence and acknowledgement of the need for retribution for a matter which has no separate penalty given. That itself was a serious matter.

34. In the course of the offending, a caravan door lock was damaged causing $2,500 worth of repairs for which the victims have not and, I suspect, cannot be compensated.

Criminal History

35. Mr Michie has an extensive criminal history with similar offences dating back to 2005 when he was just 14 years of age. It is a history, as is the offending, that is unfortunately all too common, committed by those with serious drug addiction where they make terrible decisions upsetting the lives of others, where they act on impulse and without thought, and where they have absolutely no regard for other people’s things or the extent to which they cause the community to be fearful in their own homes.

36. Mr Michie drove around whilst disqualified in a way that was incredibly dangerous to other people.

37. Mr Michie has committed very similar offences in 2005, 2006, 2007, 2008, 2013, 2017, 2018, 2022 and 2023.

38. He was imprisoned for two months in 2010, for one year between 2018 and 2019, for two years between 2019 and 2021, and he spent only a month in the community on parole before being incarcerated in 2021 for four months. He was incarcerated for six months in 2022. He had been on parole for seven months before being re-imprisoned for these latest offences and he committed some of these offences whilst on parole, which I have taken into account where appropriate.

39. No leniency will be granted in light of Mr Michie’s history. It also shows that unless Mr Michie can get his drug addiction resolved he can likely look forward to a lifetime of being in and out of prison. That is obvious from the fact that between 2015 and 2018, during which time he was in the Drug Court program, he spent no time in gaol.

40. Whilst incarceration has protected him from the community, it has to date done very little for his drug addiction. Indeed, up until as late as March 2024, he was using whilst in prison. He absolutely needs to be in a dedicated drug program.

Subjective Case

41. I have read the report of Dr Bench very closely and have taken it into account. Mr Michie has a background of deprivation such that the principles enunciated in Bugmy v R (2013) 249 CLR 571 are important considerations. He suffers from the kind of setbacks that make it very difficult for him to think maturely about his life and to make good decisions.

42. He is described in the prison records as being an Aboriginal man. His criminal record describes him as Caucasian. That kind of labelling is unhelpful in any person’s recovery, particularly where it is inconsistent. A sense of identity is important to anyone. Further, if the purpose of the description on a person’s criminal record is to identify them, a section for “racial appearance” is, in my view, outdated, unnecessary and likely to be an error, offend or mislead. Rather, the person ought to be described accurately only by those things by which a person can be identified. Finally on that topic, I very much doubt that Mr Michie’s eye colour is ‘black’.

43. Mr Michie grew up in Blacktown. His father was an alcoholic and verbally abusive. His father was in and out of gaol and died from pneumonia in custody when Mr Michie was only one. Mr Michie’s mother was heroin-dependent and on the methadone program.

44. Growing up, Mr Michie’s mother was also spending time in gaol. This left Mr Michie with his stepfather and with no food in the house. He started doing break and enters to provide money for his family, including his only sister with whom he remains very close. She suffers from depression and anxiety. He also has two stepbrothers.

45. Mr Michie’s mother died of lung cancer in 2022 when Mr Michie was in gaol.

46. In 2008, Mr Michie spent 12 months of an 18 month control order in juvenile detention having committed very similar offences to these. He was about 16 or 17 years of age. He was viciously sexually assaulted on four occasions whilst being held in custody at the Reiby Juvenile Justice Centre by two separate perpetrators. It is a disgrace that a young person who is supposed to be in the care of the State and where juvenile detention is supposed to be directed to a person’s rehabilitation was subjected to such awful and damaging conduct. I have no doubt that Mr Michie’s path may have been improved had this not happened. Apart from dealing with his drug addiction, he absolutely needs proper care and counselling for issues associated with that matter.

47. Mr Michie attended school until only Year 8. He was in special education behavioural classes for Year 7 and 8. He was suspended for truancy. Given his home life, that truancy is tragic but also unsurprising.

48. Mr Michie has had a limited employment history. Upon leaving school he delivered gyprock. He has worked in floor tiling. His longest period of employment was in 2014 when he was installing NBN cable for 12 months. He was unemployed at the time of his arrest. It shows, in my view, however, that he has an ability to obtain employment.

49. Mr Michie was in a relationship with his partner Michelle for five years and they share three children. He was single and homeless at the time of his arrest.

50. He has a substance abuse history. He began drinking at the age of 14 but was consuming that less than weekly prior to his arrest. He began using cannabis at the age of 14 and used it daily until the age of 17. He started using amphetamines at 16, using daily except when incarcerated until his arrest with a daily intake of about 0.5 to 1 gram. He was, however, using from time to time in gaol. He began using heroin at 21, using it daily for eight months. He has participated in the buprenorphine program from 2019 to 2021 and has previously completed a Drug Court program. Despite those interventions, he has continued to struggle with addiction.

51. Most recently, however, now at the age of 35 he wishes to change his life. He not only says so but more importantly has tried very hard to do so. Mr Michie has applied to recommence the Buvidal program.

52. His sentencing was delayed to try to find some kind of residential rehabilitation program. He was not eligible for Balund‑a. He made enquiries through his solicitor with Wayback, Freeman House, Dooralong, Calvary Riverina (which is nearly 800 kilometres from Taree), The Buttery, Odyssey House, Adele House and The Glen. Such is the scale of the problem in this State and the limited resources dedicated to deal with it, that that was to no avail.

53. Mr Michie has, however, secured an address in Sydney so that he might be eligible for the compulsory drug treatment correctional centre program. It is absolutely essential that he attends that program prior to his release, and I make a request to Corrections that that be considered.

Medical History

54. Mr Michie suffered from a head injury when he was assaulted in July 2024. He lost consciousness for seven days due to bleeding on the brain and he was admitted to the Intensive Care Unit. He no longer has the ability to smell or taste and suffers frequent headaches and short‑term memory difficulties.

55. Mr Michie has no recollection of past mental healthcare. He has been diagnosed with post-traumatic stress disorder as part of the matters arising from the sexual assaults in juvenile custody for which he has a civil litigation claim. He is easily triggered by Corrective officers.

56. Around the time of his offending, Mr Michie suffered stressors, including being on parole and stressors relating to the death of his mother. He would stay awake for days at a time and use drugs to numb everything. He was quite clearly self-medicating. He meets the diagnostic criteria for post-traumatic stress disorder in partial remission and stimulant use and opioid use disorder.

57. Given his drug use in custody, I am not satisfied that he is in remission in respect of those matters despite what was said in the report.

Purposes of Sentencing

58. Mr Michie’s prospects of rehabilitation are guarded. So much will depend on his drug treatment. It is extremely important that he receives that treatment now. He is, in my view, at the best time of his life to make real changes. He is genuinely remorseful for his offending. He has real insight, now sober, into the damage and harm that it causes others. This has been quite different to his attitude in the past. He has got to a point where he, to use his words, is over being on drugs, over being in gaol and just wants to be with his family and be a normal person. Whether he can do so depends on him engaging completely with his mental health issues and with his drug addiction.

59. Mr Michie is, in my view, not an appropriate vehicle for general deterrence. I doubt that a person in his position, in the grip of drug addiction, gives any thought to the likely prison sentence he or she will receive, much less what others received, in similar circumstances in the past.

60. Any sentence must deter him and protect the community. It must also recognise the harm that Mr Michie has caused to people, to their sense of safety and security and to their property. The community is rightly concerned about the perceived prevalence of break and enter offences which violate people’s sense of security, particularly in their own homes where they have a right to feel safe.

Totality

61. Matters of totality are important. Mr Michie is to be sentenced for more than one offence. Any sentence must play due regard to the overall criminality for which he is to be sentenced. A degree of concurrency is necessary in Mr Michie’s case given the short period of time over which the offences occurred and with the same motivations being engaged. However, there needs to also be accumulation to recognise the separate criminality and harm done.

Special Circumstances

62. There will be a very generous finding of special circumstances. That is deliberately so to take full advantage of Mr Michie’s need and desire for rehabilitation. I have granted that despite the attempts of rehabilitation that have been made in the past. I do not regard them as failed attempts.

63. Mr Michie has now opened up new pathways to recovery and I do not wish by any sentence to deter him from pursuing that pathway. The finding of special circumstances also recognises the difficulty he has in being incarcerated given the trauma associated with his time in the juvenile system and also by reason of his injury making his time significantly more onerous than those who have not so suffered.

Sentence

64. It will be an aggregate sentence.

65. I am of the view that for the matters for which I am to indicate a term of imprisonment, that no other sentence is appropriate.

66. I give the following indicatives and sentences for the noncustodial matters as follows:

1. Matter H93053330

1. Sequence 2: I indicate a term of imprisonment of 36 months with a non-parole period of 18 months.

2. Sequence 3: I take this matter into account on a Form 1.

2. Matter H77055623

1. Sequence 1: I indicate a term of imprisonment of three months.

2. Sequence 3: I indicate a term of imprisonment of four months.

3. Sequence 5: I indicate a term of imprisonment of 20 months.

4. Sequence 7: I indicate a term of imprisonment of 24 months.

5. Sequence 8: I indicate a term of imprisonment of three months.

6. Sequence 9: I impose a conviction and otherwise deal with the matter pursuant to s 10A

7. Sequence 10: I indicate a term of imprisonment of six months.

3. Matter H93429966

1. Sequence 1: I indicate a term of imprisonment of two months.

2. Sequence 2: I indicate a term of imprisonment of two months.

3. Sequence 3: I indicate a term of imprisonment of four months.

4. Sequence 4: I indicate a term of imprisonment of four months.

5. Sequence 5: I impose a Community Correction Order for a period of three years to date from today and expiring on 5 December 2027. Given the other sentences, I simply note a condition to be of good behaviour and to comply with any directions of Community Corrections. I impose a six month licence disqualification period.

6. Sequence 6: I indicate a term of imprisonment of six months and a licence disqualification period of two years. Any licence disqualification will date from today.

7. Sequence 7: I impose a conviction and otherwise deal with the matter pursuant to s 10A.

8. Sequence 8: I impose a Community Correction Order for a period of two years to date from today and expiring on 5 December 2026. Similarly, the conditions will only be to be of good behaviour and to comply with the directions of Community Corrections.

9. Sequence 10: I indicate a term of imprisonment of three months.

10. Sequence 11: I indicate a term of imprisonment of 18 months.

4. Matter H79684277

1. Sequence 1: I impose a term of imprisonment of three months and a disqualification period of two years.

5. Matter H94218218

1. Sequence 1: I indicate a term of imprisonment of 18 months.

67. For the custodial matters and the matters which have attracted Community Correction Orders, Mr Michie you are convicted.

68. You are sentenced to an aggregate term of imprisonment of six years and six months to date from 31 March 2023 and expiring on 30 September 2029.

69. I impose a non-parole period of three years and three months.

70. You will be eligible to apply for parole on 3 June 2026.

Recommendations

71. I recommend that you be taken into the Compulsory Drug Treatment Correctional Centre program and note that you have a Sydney residential address.

72. I recommend that you receive such counselling and treatment as is available in custody for your serious and complex drug addiction and mental health needs.

**********

Decision last updated: 07 March 2025