R v O'Hara

[2019] NSWDC 812

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v O’Hara [2019] NSWDC 812
Hearing dates:	30 August 2019
Date of orders:	11 September 2019
Decision date:	11 September 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	See [115] - [122]
Catchwords:	Crime - Break, Enter and Steal - Sentence - Aggregate Sentence - Commencement Date
Legislation Cited:	Crimes Act 1900 ss 112; 114; 188; 527C Crimes (Domestic and Personal Violence) Act 2007 s 13 Crimes (Sentencing Procedure) Act 1999 ss 3A; 5; 21A
Cases Cited:	Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41 R v Henry (1999) 46 NSWLR 346 R v Ponfield (1999) 48 NSWLR 327 Veen v The Queen (No 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Regina (Crown) Dylan O’Hara (Offender)
Representation:	Solicitors: ODPP (Crown) Spencer Lawyers (Offender)
File Number(s):	2017/00301289
Publication restriction:	None

Judgment

1. The Offender appears before the Court today for sentence in relation to a number of charges, which have been formulated by way of counts on an indictment. Dylan Edmund O’Hara was born in December 1991 and is presently 27 years of age.

2. Prior to his life going off the rails due to a relationship breakdown, he was working as a telecommunications technician, but lost that job due to drug addiction following the breakdown of his relationship. He has three children under 10 years of age. The youngest child was born to his current partner, who has provided a letter to the Court. The older two children live with their biological mother, a previous partner of the Offender.

3. The charges for sentence are as follows:

1. the first count is one of break, enter and steal, the value being less than $60,000, which occurred between 8 September 2017 and 9 September 2017, being stealing the property of Winmalee High School, in contravention of s112(1)(a) of the Crimes Act. The maximum penalty applicable for that offence is 14 years imprisonment, representing the Parliament’s assessment of the seriousness of the offending;

2. the second count is in breach of the same section, that is s112(1)(a) of the Crimes Act and relates to the theft of computers between 25 September 2017 and 26 September 2017 at Heritage College, Lake Macquarie. The same maximum penalty applies;

3. the third count is similarly a break, enter and steal charge, in contravention of s112(1)(a), being that between 26 September 2017 and 27 September 2017 the Offender stole property from Niagara Park Public School. Again the maximum penalty is 14 years imprisonment;

4. the fourth count is again break, enter and steal with the value being less than $60,000, being that on 1 October 2017 he stole property from Lakes Grammar School in contravention of s112(1)(a) of the Crimes Act which carries the maximum penalty of 14 years imprisonment. Attaching to Count 4 are two charges on a Form 1, for which the Offender has admitted guilt. I should have mentioned that attaching to Count 2 is one charge on a Form 1;

5. the fifth count relates to again break, enter and steal, the value less than $60,000, occurring between 4 October 2017 and 5 October 2017 in that he stole property, which was the property of Hudson Homes, in breach of s112(1)(a) which carries a maximum term of imprisonment of 14 years; and

6. the final count is stalk or intimidate, intending to cause fear of physical or mental harm, domestic violence, the victim being the Offender’s mother, in breach of s13(1) of the Crimes (Domestic and Personal Violence) Act, which carries a maximum penalty of five years in prison and/or a fine of $5,500.

4. Standard non-parole periods do not apply to any of the charges.

5. As I mentioned, there are charges on two Form 1 documents, which have been signed by the parties and on the last occasion by me. By signing the certificates to those documents I confirm that I have taken those charges, being the Form 1 charges, into account in sentencing for the principal charges to which they attach.

6. The charges on the Form 1 are to be taken into account with a view to increasing the penalty that would otherwise be appropriate for the principal sequences. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence and the second is the community’s entitlement to extract retribution for serious offences.

7. As mentioned, in respect of Count 2, sequence 15 attaches. That relates to entering a building to commit an indictable offence. The building in question was Heritage College and the offending occurred on 11 September 2017. That offending is in breach of s114(1)(d) of the Crimes Act and carries a maximum sentence of seven years imprisonment.

8. On the second Form 1 there are four charges, all of which attach to Count 4. They are:

1. sequence 2, namely being custody of goods suspected of being stolen and related to being in custody on 5 October 2017 of a Toshiba 100 computer, the serial number of which is referred to in the Court Attendance Notice. That is in breach of s527C(1)(c) of the Crimes Act and carries a maximum penalty of six months imprisonment and/or $550;

2. sequence 19, which is receiving stolen property in breach of s188(1) of the Crimes Act. It carries a maximum term of imprisonment of 10 years;

3. sequence 22, that is receive stolen property in breach of the same section of the Crimes Act with the same applicable maximum sentence; and

4. sequence 23, it relates to the same offence and carries the same penalty as those previously mentioned.

9. The Offender has also admitted to guilt to a related charge and has asked the Court to sentence him in respect of that matter. That is sequence 8, being goods suspected of being stolen, in breach of s527C(1)(c) of the Crimes Act, which carries a maximum penalty of six months imprisonment and/or $550.

10. All of the offending occurred between the period 4 May 2017 and 5 October 2017. On the latter date, he was arrested and he was committed for sentence on 21 May 2019 in the Wyong Local Court. He was arraigned on a fresh indictment on 30 August 2019 when the matter was last before me. He was bail refused upon arrest as there were other outstanding matters.

11. I note that he spent some time in custody prior to today. On 27 October 2017 he was sentenced in relation to offending that occurred on 5 June 2016. The offending was drug related. Berman SC DCJ imposed a sentence comprising a non-parole period of one year commencing 23 May 2017 and expiring 22 May 2018 and a head sentence expiring 22 May 2019.

12. On 10 August 2018, the Offender was sentenced by Grogan ADCJ in this Court in relation to offending that occurred on July 2016. The offending can be described in generic terms as relating to firearms. He imposed a non-parole period of two years, commencing 24 March 2018 and expiring on 23 March 2020. He imposed a head sentence of three years which would expire on 23 March 2021.

13. Perhaps the most contentious issue in relation to this sentence exercise is the commencement date, to which I will return to shortly.

14. The facts as agreed between the parties form part of Exhibit A in the sentence hearing. Page 1 of the agreed facts is a summary of the charges for sentence, to which I have already referred. The following are the Agreed Facts:

15. The Offender Dylan O’Hara is 27 years of age. At the time of the offending he was on bail for supply prohibited drugs charges being under H number ending 837. Lake Macquarie Action Group began investigating a number of break and enters which occurred in the month of September 2017 in the Lake Macquarie Area Command targeting local schools. By 4 October 2017, Police were granted a search warrant for the Offender’s house located in Wyoming.

16. On 5 October 2017, Police attended the Offender’s house to execute the search warrant. The house was unattended. Police gained entry through an unlocked window and saw the house was empty except for items in the garage. Upon completion of the search warrant Police secured the premises. Police attended the Wyong Police Station and met the Offender, who was served with the occupier’s notice for the search warrant conducted above. The Offender was cautioned and asked to take part in an electronically recorded interview, which he declined. He then left the police station with his mother.

17. At approximately 1.30 on 5 October 2017, Police conducted a search at a property in Tuggerah, being the address of the Offender’s mother (‘the Tuggerah Property’). At that time the Offender’s mother, the Offender and his girlfriend were all living at the address. The Offender and his then-girlfriend had been living with his mother for approximately two months. Prior to that he was living at an address in Wyoming. The garage inside the house was used solely by the Offender.

18. During the search warrant the police located a number of items which are said to have been stolen property, which will be outlined in the preceding facts. Also during the search warrant the police located a handwritten note with several names of the victim schools on it. The handwritten notes were on the back of a typed letter addressed to the Offender’s mother. The Offender’s mother was shown the letter by police and confirmed that the letter was hers but she denied the handwritten notes.

19. It is the Crown case that the Offender used the handwritten notes to commit a number of break and enter offences as outlined below. At approximately 10.15am on Monday 16 October 2017, police attended a towing yard where they inspected a Mazda vehicle which was owned by the Offender’s mother. A review of the GPS showed a number of search results for different addresses related to the break and enter offences outlined below.

20. It is the Crown case that the Offender used his mother’s car and the GPS fitted to that car to assist him in locating the schools into which he was breaking.

21. The following facts relate to the domestic violence matter, intimidation, pursuant to s13(1) of the Crimes (Domestic and Personal Violence) Act. The victim in the matter is the Offender’s mother.

22. At approximately 12.40pm on 5 October 2017, the Offender was in the passenger seat of the Toyota Corolla, it being a hire car. The car was being driven by the victim, that is the mother of the Offender. While travelling home from the Police Station the Offender became extremely paranoid and irate. The Offender began screaming at the victim and moving towards her in an aggressive manner whilst she was driving. Upon entering a street in Tuggerah the Offender increased the aggression towards his mother telling her that he did not want to return home as the Police were going to be there.

23. Upon reaching the intersection of Tonkiss Street and Windsong Place the Offender grabbed the steering wheel of the vehicle, while continuing to scream at his mother and demanding that she take him to Gosford. His mother was forced to hit the brakes on the car heavily. Police who were parked at Windsong Place, Tuggerah, witnessed the car brake heavily at the intersection and saw the Offender in the passenger seat throwing his arms around and grabbing at the steering wheel.

24. As Police approached the vehicle they could hear the Offender screaming at his mother. Police opened the passenger side door and requested the Offender exit the car, which he initially refused. After a short time the Offender exited the vehicle and was arrested. Police spoke with the Offender’s mother who gave a recorded statement.

25. The following facts relate to sequence 20, which is the offending at Winmalee Public School between 8 and 9 September 2017. Between 5pm on Friday, 8 September 2017 and 4.19am on Saturday, 9 September 2017, the Offender entered Winmalee School by smashing the glass on the ground floor rear library door. He entered an adjacent block of classrooms by jimmying open a door to a classroom.

26. At 4.19am Police attended the school in response to an alarm activated on the school premises. Police were met by a Southern Cross Security guard at the front gates of the school. The security guard told Police that he attended the school in response to the alarm in the library. When he arrived he saw the back door smashed and computers removed. As he was walking down to the library he heard what he thought was someone on the roof and returned to his vehicle to call Police.

27. Police dogs attended a short time later and conducted a sweep of the school with no results. Five Apple computers were located with numerous cords and keyboards at the front gate of the school. Also located at the scene was a Ryobi power drill and two crowbars which were collected as exhibits. A chair was also located at the scene which was used to assist the Offender climb over the front fence of the school.

28. A fingerprint assessment was conducted at the scene. While many Apple computers were located at the scene three Apple iPads were stolen and have not been recovered. The Apple iPads have identifying features including model numbers. Also stolen was a power drill. The total value of the three iPads was $3,300 and the value of the power drill was $300. A later GPS review on the Offender’s mother’s car showed a search address matching the address of the Winmalee School. The Offender’s mother did not use the GPS to search the location. Fingerprint results revealed the following:

1. DNA matching of the profile of the Offender located on the curled handle of a crowbar; and

2. DNA matching the profile of the Offender located on the yellow black handle of a metal bar.

29. The following Agreed Facts relate to offending at Heritage College between 25 and 26 September 2017. Between 5.30pm on Monday, 25 September 2017 and 7am on Tuesday, 26 September 2017 the Offender gained entry by smashing a glass door on the ground floor. Once inside the Offender stole 10 to 12 desktop computers. The total value of the property stolen was $12,000. Forensic analysis was conducted at the scene and fingerprint F4 was analysed as returning a match to the Offender. F4 was located on broken pieces of a plastic tub located at the scene.

30. During the Tuggerah Property search warrant police found in the garage a handwritten note which read:

“Heritage-iMac all rooms, 75 inch TV every room, alarm in library aimed at entrance not in classrooms, office? Ipads?”

31. A review of the GPS of the Offender’s mother car showed a search address matching the address of Heritage College.

32. The following facts relate to offending which occurred at Niagara Public School between 26 and 27 September 2018, namely sequence 4 of the charges. Between 6pm on Tuesday, 26 September 2017 and 6.30am on 27 September 2017 the Offender entered Niagara Park Public School by cutting a padlock and drilling a hole in the door lock. Once inside the Offender stole the following items:

1. three iPads;

2. Apple MacBooks;

3. Lenovo ThinkPads;

4. iPad Minis;

5. iPad cases;

6. laptop bags; and

7. plastic tubs.

33. The total value of the property stolen was some $68,770.

34. On 5 October 2017, police located the following items during the search warrant at the Offender’s house, which were stolen from Niagara Park Public School:

1. four Lenovo ThinkPads with serial numbers matching the items stolen from the school;

2. 34 iPad cases located in the garage area; and

3. multiple documents in the name of the Offender.

35. On 5 October 2017, during the Tuggerah Property search warrant, police located a handwritten note which read: “Niagara Park, vault, iPads for weeks. No alarm.”

36. On 16 October 2017, police attended the house of the Offender’s ex-partner. The Offender and this ex-partner have two children together. She advised police that the children were given two Apple iPads by the Offender approximately a week and a half earlier. The iPads were recovered by police and both iPads had the inscription of NPPS engraved upon them.

37. On 17 October police attended the Tuggerah Property address and were given permission by the Offender’s mother to search the premises. In the roof cavity they located two Hewlett Packard computers. Each of the computers had the inscription “NPPS” on the rear, which police identified as being Niagara Park Public School. Police located a beanie in the playground area of the school. The beanie was DNA tested and returned a match for the Offender. A cigarette butt was also located at the point of entry amongst the metal filings of the metal fence. This too was examined and returned a DNA match to the Offender.

38. The following facts relate to sequence 25, being break and enter Lakes Grammar Anglican School on or about 1 October 2017. At about 5.30pm on Sunday 1 October 2017 the Offender entered Lakes Grammar School by cutting a front pedestrian gate chain. Once inside the school grounds the door to room 1, block B, was cut approximately 30 centimetres deep with what appeared to be an angle grinder. Once inside the Offender stole 19 Dell laptop computers, the total value of which was $20,000.

39. During the Tuggerah Property search warrant police located a handwritten note which read: “Warnervale Anglican-cameras, alarms, S and G.”

40. A search of the car belonging to the mother of the Offender was conducted on 16 October 2017 revealing a camouflage face covering along with other items. A review of CCTV footage at the school showed a male wearing a camouflage face covering.

41. The following facts relate to sequence 26. Hudson Homes, a building site, is a residential housing development located in Wongarra. The construction site is secured by a perimeter fence and consists of homes at different stages of construction. A site office and shipping containers are used to store building equipment and materials. The shipping containers are locked and secured with padlocks.

42. Between 4 October 2017 and 5 October 2017 the Offender entered the site office and the shipping containers by drilling out the door lock on the site office and the padlock on the shipping containers. Once inside the shipping container a large amount of building materials were stolen including Lane brand locks and handles still in packaging and boxes. The facts do not refer to the value of those items. Once the theft was reported Police conducted a forensic analysis of the scene including on the drill-out padlock of the shipping container. The DNA was later analysed and returned a result that matched the Offender.

43. On 5 October 2018 during the search warrant at the Tuggerah Property, the following items were located:

1. 39 external Lane brand doors and locks;

2. numerous floor wastes;

3. numerous toilet roll holders; and

4. numerous door stops.

44. These items were all located in their original Bunnings packaging with delivery stickers indicating Hudson Homes at Wongarra. In addition Police also found that several of the door locks had been mounted onto pieces of wood along with lock picking and housebreaking instructions. High powered drills were set up near these locks which appeared to police to be jigs for the practice of breaking/drilling locks.

45. The following facts relate to the Form 1 offences, the first being sequence 2. During the Tuggerah Property search warrant police located a Toshiba 100 computer serial number ending ‘29K’ in the garage of the house. A Toshiba computer had been stolen by unknown persons between 8am and 6pm on Friday, 4 May 2017, from an apartment in Bathurst Street, Sydney. The value of the property is $3,000.

46. The following facts relate to sequence 15. Heritage College is located in Morisset, New South Wales. Between 4.19am and 4.31am on Monday, 11 September 2017 the Offender gained entry to the college with the intent of stealing property from the school. The alarm was activated and the Offender was disturbed. A review of the CCTV footage at the school showed three persons at the location at the time of the offence.

47. As outlined above, at some time between 5.30pm on Monday, 25 September 2017 and 7am on Tuesday, 26 September 2017 the Offender again broke into the Heritage College and successfully stole a number of items.

44. The following facts relate to sequence 19 on the Form 1. St Monica’s Primary School is located in Richmond, New South Wales. Between 4.15pm on Wednesday, 23 August 2017 and 7.10am on Thursday, 24 August 2017 an unknown person entered the ground floor classroom of St Monica’s School. Entry was gained via the locked door, which was forced open to gain entry into the building, which contained computers belonging to Year 2 students. Once inside seven Apple Mac computers were stolen at a value of $7,700. The Apple Macs had identifying features including model numbers on them.

45. At approximately 11.25pm on Thursday, 24 August 2017 Police received information that the stolen Apple Mac computers had tracking devices on them. IT staff at the school had been able to track two of the computers to 32 the Tuggerah Property. A review of the GPS fitted to the Offender’s mother car showed a search address of 33 Francis Street, Richmond. The school is located at 32 Francis Street, Richmond. The mother of the Offender denied that she had used the GPS to search that location. It was the Crown case that the Offender received the stolen property.

46. The following facts relate to sequence 22, also on a Form 1. Warnervale Public School is located in Warnervale, New South Wales. Between 11pm on Thursday, 14 September 2017 and 6.45am on Friday, 15 September 2017 unknown persons entered the G block of Warnervale Public School. Entry was gained by smashing a small window near the door and reaching in to unlock the door. The lock on the door showed evidence of being damaged by what appeared to be a high powered drill. Two Dell computers and 12 Apple iPads were stolen the school, the total value of which totalled $6,000.

47. During execution of the Tuggerah Property search warrant police located in the garage two Dell computers matching the serial numbers of those stolen from Warnervale Public School.

48. The following facts relate to sequence 23, also on a Form 1. Chisholm Catholic Primary School is located in South Windsor, New South Wales. Between 4pm on Monday, 18 September 2017 and 8am on Tuesday, 19 September 2017 unknown individuals gained entry to Chisholm Catholic Primary School. Entry to the school grounds was gained by cutting a hole in a 6-foot chain wire fence with an unknown device. The scrubland on the side of the school led to Woods Road, a residential area. Once inside the school grounds, entry was gained by drilling out the lock of the door to classroom 6W. A large amount of metal shavings were found on the ground below the lock. Once inside the classroom a number of Apple iPad Airs and other computer software were stolen with a total value of $10,700.

49. On Friday, 6 October 2017 police attended the vicinity of the Tuggerah Property where they located several iPad covers which were engraved with the name “Chisholm Catholic Primary School”. These items were located in bushland behind the Offender’s home at the Tuggerah Property. It is the Crown case that the Offender received that stolen property.

50. The following charge is sequence 8 and appears on a s166 certificate. Kings Estate is a housing development located in Terrigal, New South Wales. The construction site is secured by a perimeter fence and consists of several houses at different stages of construction. A site office and three containers were used to store building equipment and material. The shipping containers were locked and secured with padlocks.

51. At around 6pm on 3 October 2017 the Kings Estate building site was locked and secured. Sometime between 3 October 2017 and 6am on Wednesday, 4 October 2017 an unknown individual gained access to the Kings building site by drilling out the padlocks on the shipping containers. The following items were stolen, being:

1. a Trimble GPS rover with charger and Samsung tablet 8 in a bright yellow case. The combined value which I infer from the agreed facts was $20,000;

2. three CB radios with an unknown value; and

3. one Hilti concrete drill also of unknown value.

56. On 5 October 2017 during the Tuggerah Property search the above items were located in the garage at the premises. The area of the premises was utilised solely by the Offender.

57. At approximately 1pm on 5 October 2017 the Offender was arrested and conveyed to Wyong Police Station. The Offender was offered the opportunity to participate in an electronically recorded interview which he declined.

58. He was also offered the opportunity to participate in a forensic procedure in the form of a buccal swab. Upon obtaining legal advice the Offender declined to consent to the forensic procedure. Subsequently a senior officer order was made and the swab was obtained. Those are the facts agreed between the parties.

59. Turning now to consider the Offender’s subjective case. He has a criminal record dating back to about 2010 including multiple charges of robbery, drug offences, driving and other offences. He has been imprisoned from 30 July 2016 through 28 September 2016 and again 2 February 2017 through 19 April 2017 and also from 6 October 2017 to 14 July 2019. He is currently in prison in relation to the sentence imposed by Grogan ADCJ previously referred to.

60. During his most recent time in prison there have been a number of infractions regarding the use of non-prescribed drugs and possessing a drug use implement being, in this case, a syringe.

61. The Court was provided with a letter from the Offender dated 9 August 2019 (Exhibit 1). He confirmed that he has three children and a current partner, who was also once a former partner. She is 26 years old and looks after the four year old son of their union. As mentioned previously, the other two children belonging to the Offender live with their own mother.

62. In his letter to the Court, the Offender acknowledged the matters for which he was appearing before the Court. He provided a history of his schooling and early work life. After leaving school in Year 10 he spent some time going from job to job until he secured a job with Telecom Civil Installs and after a while received the opportunity from the company to complete the relevant qualifications to become a telecommunications technician. He was then offered a role as team leader and once the NBN started he found an employment opportunity in western Sydney. Ms Shipley and he needed the money so the five hour a day travel had to happen.

63. Being the sole income earner with a young family with a baby on the way caused a lot of stress to the Offender and in terms of their relationship. The Offender stated that he and his partner were fighting a lot and later broke up. After they broke up he described himself as being homeless and severely depressed. At first he was only using drugs every now and then. He stated that unfortunately due to stress he lost his job and found himself using drugs every day.

64. He stated that before the age of 24 he had never had a drug addiction of any sort. As a result of the addiction he found himself in what he refers to as being a black hole of debt. He was being threatened and physically abused in order to perform the offending on behalf of those who provided him with drugs.

65. The Offender refers to himself as being honest and hardworking and this being the lowest point of his life. He confirmed that he had started committing crimes to support his drug addiction. He speaks of receiving threatening text messages saying that they, that is the drug suppliers, knew his mum’s address and would hurt her if he didn’t assist them in committing the crimes. Nevertheless, he stated that he knowingly and willingly went with them.

66. As a result of an altercation that occurred in prison the Offender was placed into protective custody and remains so.

67. In his letter to the Court (Exhibit 1), he expressed sincere regret for his offending and the people who have been affected by it. He said that he was sincerely remorseful to the children who had their education hindered as a result of his selfish actions. He said that since being in prison he has done some deep soul searching and he does not want a criminal’s life. He wants to lead a quiet life that revolves around his family, work and volunteer work in the community.

68. Overall the letter to the Court expressed his remorse for the offending. That was further supported by oral evidence provided by the Offender during the sentence hearing on 30 August 2019. He also provided further information about the background to his offending, namely the drug debt and what arrangements he went to repay the debt. At the time of the offending he was using both ice and heroin. It seems that for every $10,000 worth of product that he stole from the schools and other locations, the drug sellers would take $1,000 off his drug debt as well as giving him additional drugs.

69. He confirmed that he is in protective custody in prison and only gets out of his cell for about an hour and a half every day. He suffers from constant verbal abuse from other inmates, which he finds mentally straining. He told the Court how he is seeing a psychologist in prison, but then has moved to Parklea where he touched base with a psychologist there. It is apparent from his evidence that he has had difficulty securing regular visits with a psychologist by reason of moving prisons from time to time.

70. He was asked about benefits of seeing a psychologist and said that he definitely noticed benefits. In particular I note his evidence at T14.40 or thereabouts. Notwithstanding the progress he has made in rehabilitation to date he frankly acknowledged at T15.1 that he still has a long way to go. He confirmed that which is set out in the letter, that upon being released from custody intends to go back to work and he referred to the NBN at T15.26.

71. He seems well supported by his family. He says that upon release he will be having a lot more contact with his family and that is one thing he has learned through this whole ordeal. He was attended upon in Court on the last occasion by a number of family members. I note that on the last occasion at T46.20 or thereabouts I stated:

“I intend to find the Offender presented as a credible witness and a reliable historian and that his prospects for rehabilitation are positive.”

72. The Crown then made a submission suggesting that perhaps the prospects of rehabilitation ought to be guarded. But, nevertheless the finding I flagged as to his presentation stands and I do find him to be a credible and reliable witness and I accept that he intends to rehabilitate himself and to return to a crime free life with his partner and child.

73. His partner provided the Court with a letter dated 7 June 2019 (Exhibit 2). She first met the Offender in 2012 and has known him for seven years. They were in a relationship between 2013 and 2015, ending in October 2015 due to financial and emotional stress, which she thought was due to being young parents and trying to live on one income.

74. Consistent with the evidence of the Offender, she stated that the financial pressure of one income caused a lot of stress to their relationship and especially to the Offender who was the sole income earner for the family. She confirmed that in May 2018 she and the Offender rekindled their relationship and since that time have been each other’s greatest supporter. She confirmed that he has expressed sincere remorse and embarrassment about the offending. She says that in January 2019 he was diagnosed with borderline personality disorder, something which he had never been diagnosed before and with which remains untreated.

75. I paid close regard to the contents of Exhibit 2, which speak highly of the Offender, both as an individual and also as to his prospects in the future. It very much appears to me that the Offender is at a crossroads, as is often referred to by sentencing judges, where he has realised the errors of his past and intends to embark upon a more successful life in the future.

76. I was assisted by submissions provided on behalf of the Crown (MFI 1). The Crown conceded a discount on sentence, that 25% was applicable given the timing of the guilty plea. The Crown also reminded the Court of the purposes for sentencing set out in s3A of the Crimes (Sentencing Procedure) Act. It was submitted on behalf of the Crown and conceded by the solicitor acting for the Offender that the threshold under s5 had been crossed.

77. The Crown submitted that there was a need for specific and general deterrence and attention was drawn to the decision of R v Ponfield (1999) 48 NSWLR 327. Whilst there are some similarities between the offending in this case and Ponfield there are also areas of distinction.

78. It is plain that the offending was committed whilst the Offender was on conditional liberty or bail. In this case he was on bail for some drug offences and firearm offences. It was also submitted that there was a degree of planning involved in the offences.

79. In relation to the third Ponfield factor the Crown submitted that whilst the Offender had a prior record, he did not have form for committing break and enter offences, but does have a conviction for robbery in company. The fourth Ponfield factor relates to the elderly and sick and is not relevant to this matter. The fifth Ponfield factor, namely that the offending was accompanied by vandalism and damage to property was made out by the Agreed Facts.

80. The Crown also relied upon the sixth Ponfield factor, namely the multiplicity of offences and reminded the Court that in sentencing on multiple counts regard must be had to the criminality involved in each. The Offender is to be sentenced for five break and enter offences and five further offences are to be taken into account on the Form 1.

81. The Crown conceded that the next Ponfield factor of repeat incursions did not apply in this case and I accept that submission. Next, the Crown submitted that the value of the property stolen was significant and has at page 6 of MFI 1 set out the value of the goods stolen by the Offender. The remaining Ponfield factors, it is agreed, have no application to this sentence.

82. Overall it was submitted on behalf of the Crown that in respect of the break, enter charges, being Counts 1 through to 5, the offending fell at the mid-range.

83. The Court was also assisted by succinct and insightful submissions on behalf of the Offender. It was submitted that the offending occurred during a period of duress and I accept the evidence of the Offender that he was under pressure from the drug suppliers to commit the offending, which he did. It was further submitted that in the future the Offender contemplates and desires a crime-free life.

84. It was submitted and, I accept, that there were no prior offending of the same type, although I do note the robbery in company to which the Crown drew the Court’s attention. It was submitted on behalf of the Offender that he is progressing with his rehabilitation. It was said that the Offender can now see the light at the end of the tunnel, to move onto the next chapter of his life. It was submitted that he had shown genuine remorse, a finding which I make. It was submitted on behalf of the Offender that I would find good prospects for rehabilitation and that he would benefit from an extended period of supervision in the community.

85. Special circumstances was said to exist by reason of a number of considerations, including that it is the first time in custody for the Offender, that is the custody which he is currently serving and continues to serve for these and other offences, that he has good prospects of rehabilitation and that his time in custody will be more onerous due to his psychiatric condition and the need to be in protection.

86. In relation to the psychiatric condition, there is no real evidence other than comments by the Offender and his partner as to such matters. That evidence does not permit me to make a finding that he committed the offending while suffering from a psychiatric condition so that his moral culpability ought to be reduced or that indeed he is not an appropriate vehicle for general deterrence.

87. Considering the aggravating factors under s21A(2) it seems that only one of the offences, that is one captured on CCTV footage, was committed in company; the majority were not and I do not take that as being an aggravating factor. I do, however, find that the offences committed whilst he was on conditional liberty and that is a statutory aggravating factor pursuant to s21A(2)(j). I also find there was a degree of planning involved in the activity such that, pursuant to s21A(2)(n), it aggravates the offending. Finally, the only other statutory aggravating factor I find is the offending was committed for financial gain. In this case it was to pay off a drug debt; nevertheless it was for that purpose.

88. Turning to the statutory mitigating factors, whilst I accept the evidence of the Offender that he was acting under pressure placed upon him by drug suppliers, I decline to find that he was acting under duress within the meaning of s21A(3)(d). In terms of his record of other convictions and whether his record mitigates against sentence, I find that his criminal record is such that it cannot mitigate against the severity of his offending but it similarly does not aggravate the offending. In my view, his criminal record disentitles him to a finding of good character, which otherwise may have resulted in some degree of leniency.

89. Whilst I have expressed the view that the prospects of rehabilitation and likelihood of re-offending seem positive I am unable to make positive findings as to those matters in accordance with s21A(g)-(h) of mitigating factors referred to in the Act. I do, however, find remorse in the statutory sense, having been satisfied of the two matters referred to in s21A(i). The final mitigating factor applicable of course is the plea of guilty which confirms the expression of remorse by the Offender.

90. All of the offending is of a similar or same type. That is break, enter and steal, save for sequence 1 being the stalk/intimidate to cause fear offence. In relation to the non-domestic violence offending, I find that the offending falls in the mid-range, given that there was planning involved and the value of the goods stolen and that it was motivated by financial gain, albeit to offset a debt.

91. In respect of the domestic violence offence being Count 6 or sequence 1, I find that it falls below the mid-range. That offending related to his conduct regarding his mother in the car when he became aggressive and she felt intimidated.

92. There is no doubt the offending occurred at a time, on the evidence of the Offender, which I accept, when he was affected by illicit substances. His history of addiction must be given some weight in the exercise of the sentencing discretion. However, drug addiction is not itself a mitigating factor. Spigelman CJ made it clear in the matter of R v Henry (1999) 46 NSWLR 346 at [206] that it is not a matter in mitigation. Self-induced addiction to drugs at an age of rational choice establishes moral culpability for the predictable consequences of that choice. I note the comments of the Chief Justice at [197], where he stated:

“Drug addicts who commit crimes should not be added to the list of victims. Their degree of moral culpability will vary just as it varies for individuals who are not affected by addiction.”

93. The Offender’s decision to take heroin and use ice was a choice made by him. It no doubt contributed to, if not solely, led to the offending and it is a matter to which the Court will have regard but not as a mitigating factor.

94. In terms of remorse I have already found that the statutory test for remorse has been made out. I have already made findings about rehabilitation and the risk of re-offending. In terms of the previous convictions, I have already said how I intend to deal with it but I note that in the submissions from the Crown reference was made to at page 8 how prior convictions may be pertinent to deciding the boundary to be set by the objective circumstances and in particular I note the decision of Veen v The Queen (No 2) (1988) 164 CLR 465 at 477, where it was said, amongst other things, that the prior record is relevant to show where the instant offending is an uncharacteristic aberration or whether the Offender has manifested his commission of the instant offence as a continuing attitude of disobedience to the law. Whilst he has plainly been disobedient to the law in the past, the series of offences for which he is to be sentenced today is not aggravated by his criminal record. As I have already said, it disentitles him to a finding of good character.

93. The purposes for which a sentence may be imposed include an assurance that there is adequate punishment, that there is both general and specific deterrence and they loom large, for both offending, the property offences of this type and also in relation to the domestic violence offence. Another purpose is to protect the community from the Offender. Whilst the Offender seems to have seen the light, there is no doubt that he in the past has presented a risk to the community which it would be mitigated against to promote the rehabilitation of the Offender. For this reason and others I intend to find special circumstances, such that he will spend less time in custody and more time in the community readjusting and rehabilitating himself for a crime-free life.

94. The next is to make him accountable for his actions. Next is to denounce the conduct of the Offender and, finally, recognise the harm done to the victims of the crime and to the community. As to the latter, I note the comments made by the Offender in Exhibit 1, where he referred to the effect that his offending would have had upon the students whose computers he stole.

95. Now, prior to sentencing an Offender to a period of imprisonment the Court must be satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate. As previously mentioned, it was agreed between the parties that imprisonment is appropriate. The only alternative to full-time custody in this case would be an intensive corrections order which itself is a form of imprisonment, however, in my view given that it is limited to a period of three years for multiple offences, it would not represent adequate punishment in the circumstances.

96. As I said at the outset, the commencement date of the sentence is a matter of some contention. It was submitted on behalf of the Crown that it was open to me to commence the sentence at the conclusion of his current non-parole period, that is 23 March 2020. It was contended on behalf of the Offender that I ought to backdate the commencement date to 5 October 2018 being 12 months after his arrest for this offending.

97. In the Crown’s submissions at paragraph 26, very helpful statements of principle were made bearing upon this question. Under the heading “Totality”, the Crown quite rightly conceded that totality is a relevant fact for the Court to consider as between the offences for which the Offender is to be sentenced and the sentences the Offender has been serving whilst in custody.

98. The question for the Court, it was submitted, is to consider to what extent the sentence imposed for the supply of prohibited drug, being the matter before Berman SC DCJ and the sentence in relation to the matter before Grogan ADCJ comprehend and reflect the criminality of the offences before the Court. It is pointed out that in the matter of Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41, Howie J at [27] summarised the principles relating to the question of totality. The question was whether the sentence for one offence can comprehend and reflect the criminality for the other offence. If it can then the sentence ought to be concurrent as there would be a risk that a combined sentence will exceed that which would reflect the total criminality involved.

99. I do not accept that backdating the sentence to the date of arrest of 5 October 2017 is appropriate in that it would not reflect the overall criminality of the multiple offences. Nevertheless, I also reject the Crown’s submission that the sentence ought to commence at the end of the non-parole period for the current period in custody.

100. Having regard to the question of totality and ensuring that the sentence to be imposed, which combined with the other sentences is not crushing, I intend to impose a sentence which would have commenced on 5 April 2019, being 18 months after the Offender’s arrest and refusal of bail.

101. I also intend to impose an aggregate sentence. Before doing so I must provide indicative sentences in relation to the six primary counts and also the matter on the s166 certificate.

102. In relation to Count 1, being break, enter and steal, I provide an indicative sentence of two years, discounted by 25% to one year six months.

103. In relation to Count 2, with the one offence on the Form 1 attaching, being break, enter and steal I provide the indicative sentence of three years and four months, discounted by 25% to two years six months.

104. In relation to Count 3, being break, enter and steal, I provide an indicative sentence of four years, discounted by 25% to become three years.

105. In relation to Count 4, with the four offences on the Form 1 attaching, I provide an indicative sentence of three years and eight months, which after discount of 25% is two years and nine months.

106. In relation to Count 5, being break, enter and steal, I provide an indicative sentence of one year and eight months, which after discount is one year and three months.

107. In relation to Count 6, that is the stalking/intimidate domestic violence matter, I provide an indicative sentence of 16 months, discounted to 12 months.

108. In relation to the matter on the s166 certificate, which the Offender has asked the Court to sentence him in respect of, I provide an indicative sentence of four months, discounted to three months on account of the guilty plea.

109. The total aggregate sentence, therefore, I intend to impose allowing for sufficient periods of concurrency, with some accumulation on the existing sentences is a period of six years. I impose an aggregate non-parole period of three years and nine months, representing 62.5% of the head sentence, having found special circumstances.

110. The commencement date for the sentence is 5 April 2019. The non-parole period will expire on 4 January 2023 and the aggregate head sentence will expire on 4 April 2025.

111. In determining this sentence I have also had regard to the overall effect of this sentence when viewed together with the existing current sentences being served by the Offender. The total sentence including the previous sentences is seven years and six months with a total non-parole period including the previous sentences of five years and three months, falling below the statutory threshold of 75% and coming in at about 70% of parole to non-parole.

112. Yes, Mr O’Hara, please stand.

113. Mr O’Hara, you are convicted of the offences on the Crown’s Sentence Summary being break, enter and steal, being a value of less than $60,000, Count 1, in breach of s112(1)(a) of the Crimes Act.

114. You are further convicted of the same offence being Count 2.

115. You are further convicted of the same offence being Count 3.

116. You are further convicted of the same offence being Count 4.

117. You are further convicted of the same offence being Count 5.

118. Finally, you are also convicted of the stalk or intimidating to cause fear or physical or mental harm, being a domestic violence offence, being Count 6.

119. At your request I also convict you in relation to the matter on the s166 certificate, being goods suspected of being stolen, not a motor vehicle, in breach of s527C(1)(c) of the Crimes Act.

120. In relation to those convictions I impose upon you an aggregate sentence of six years imprisonment to commence from 5 April 2019. The earliest date for release, that is the date at which you will be eligible for parole, is 4 January 2023 and your head sentence of six years will expire on 4 April 2025. So just to be clear, the non-parole period is three years and nine months, backdated to 5 April this year.

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Amendments

21 February 2020 - At [2] insert "a previous partner of the Offender."

Decision last updated: 21 February 2020