R v Paul

[2022] NSWDC 412

District Court

New South Wales

Medium Neutral Citation:

R v Paul [2022] NSWDC 412

Hearing dates:

25 July 2022

Date of orders:

25 July 2022

Decision date:

25 July 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   The offender is convicted.

2   I impose a term of imprisonment of 2 years and 6 months, with a non-parole period of 15 months to date from 15 May 2021.

3   The non-parole period will expire on 14 August 2022 and the head sentence will expire on 14 November 2023.

4   The offender is to be released to parole on 15 August 2022.

Catchwords:

CRIME — Property offences — break and enter - Steal from the person

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Regina
Ethon Paul (Offender)

Representation:

Counsel:
S Carr (Offender)

Solicitors:
Office of Director of Public Prosecutions
Legal Aid of NSW (Offender)

File Number(s):

21/137256

Publication restriction:

None

Judgment

1. Ethon Samuel Paul appears for sentence after pleading guilty in the Local Court to an offence of Aggravated Break Enter and Steal contrary to s 112(2) Crimes Act 1900.

2. The maximum penalty for the offence is 20 years imprisonment and parliament has prescribed a standard non-parole period of 5 years.

Approach to Sentencing

3. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999.

4. The offenders entered pleas of guilty in the Local Court and are entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

5. To the extent that I make findings of fact adverse to an offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to an offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

6. Standard non-parole periods do not apply when an offender pleads guilty, but they can still be used as a guidepost to an appropriate sentence.

Agreed Facts

7. The parties tendered an Agreed Statement of Facts that can be summarised as follows.

8. The offender is currently 31 years of age. In the period 12 April 2021 to 17 April 2021 the offender and the co-offender exchanged several text messages in which they discussed a plan to go to premises at Greenacre and steal money belonging to Mohomad Dalati, otherwise known as “Moey” or “Boss”.

9. At about 9.07pm on 17 April 2021 the offender and the co-offender arrived at the premises and stood across the road. The offender and co‑offender approached the premises and entered the al fresco area by opening the garage door which was closed, but not locked. This was captured on CCTV footage.

10. At the time, Nahida Dalati was sitting in the al fresco area. She said to the offender and the co-offender, “You can’t open the garage, you are not allowed to come inside, go outside”. The offender and the co-offender asked whether Mohomad Dalati was home because they needed to buy something off him. The victim replied that he was not home. The offender and the co-offender asked the victim, “Is that Moey’s safe?” To which the victim replied, “I don’t know. You’re not allowed in here, please go out”.

11. The offender placed a phone call to Mohomad Dalati and said, “Hey ‘Bro, where are you? All right, we’ll see you in five”.

12. At about 9.10pm the offender and the co-offender left the al fresco area closing the garage door behind them. While standing outside the garage door the offender said to the co-offender, “Run in, grab the bag fast. Ready, set, go”.

13. A few seconds later the offender and the co-offender re-entered the al fresco area of the premises by opening the garage door that they had previously closed. The offender and the co-offender said to the victim, “Moey just called us and said we can grab the bag quick”. The victim said, “No, no”. To which the offender and the co-offender replied, “Sorry, Ma’am, we have to”.

14. The offender and the co-offender started to look around the al fresco area while the victim was yelling at them to get out. The co-offender left the premises through the garage door while the offender remained looking around the shelves. The offender located a small electronic safe behind an Asics shoebox on one of the shelves. The safe belonged to Mohomad Dalati.

15. The victim walked towards the offender to try and stop him from taking the safe. The offender used both his hands to push the victim on her left forearm, which hurt and caused her to fall onto the couch. The offender removed the safe from the shelf and carried it from the premises.

16. On 18 April 2021 and 19 April 2021 the offender and co-offender exchanged several text messages in which the offender confirmed that he was in possession of the safe taken from the premises.

17. On examination of the premises, the offender’s fingerprints were located on the garage door and on the lid of the Asics shoebox. The offender’s DNA was also forensically linked to a cigarette butt that he disposed of earlier.

18. On 15 May 2021 the offender attended Gosford Police Station to report for bail on an unrelated matter. The offender was arrested and cautioned in relation to this matter. The offender participated in an electronically recorded interview.

19. The offender admitted to attending the premises with a mate but did not admit to breaking into the premises, assaulting the victim, or taking the safe. The offender consented to a forensic procedure consisting of a buccal swab.

Sentencing Assessment Report

20. The Court received a Sentencing Assessment Report, the content of which can be summarised as follows.

21. The offender is a New Zealand citizen who came to Australia with his parents in 2006. His brother told the author of the sentencing assessment report that he was raised in a good and supportive family and that he would support the offender on the basis that he ceased pro-criminal behaviours and associations.

22. The offender is separated from his partner and has one son from that relationship.

23. Prior to his incarceration the offender was employed as a yard person in a gas bottle refilling business and had a second job as a scaffolder. He has had a regular history of employment.

24. The offender has had a varied criminal history dating back to 2011. His previous criminal offences included destroy/damage property, larceny, resist or hinder police, common assault, and stalking and intimidation.

25. The offender agreed with the police facts but stated that he did not have any particular recollection of the events. He said that he was misled by an associate to get more drugs and drinks before the offence. He stated that it was a spur of the moment involvement and that he had been “caught in the situation”.

26. The offender admitted that alcohol and cocaine abuse were contributing factors leading up to the offence. He had not previously sought treatment or interventions for drug and alcohol use. The offender accepted that the offending conduct was driven by financial gain. He accepted that his addictions had led him to owe money to antisocial associates which he was struggling to repay.

27. The offender’s brother indicated that he was addicted to gambling when he worked in security at the casino.

28. The offender told the author of the Sentencing Assessment Report that he had no mental health issues prior to the offence and reported no concerns. He has sought assessment by a psychologist in custody.

29. The author of the sentencing assessment report described his empathy towards the victim as “superficial”. The offender stated he felt sad and sorry for scaring the victim but said that he had received threats from her family members.

30. The offender was assessed as a medium risk of re-offending. In the event that Community Corrections are required to supervise the offender it is likely that appropriate referrals will be made for drug and alcohol treatment, psychological treatment, particularly relating to anger management and aggression.

31. An updated sentencing assessment report found the offender to be suitable for community service work and noted that he had a number of minor misconduct charges whilst in custody.

The Offender’s Case on Sentence

32. The offender tendered a report of Diana Grujoska, psychologist, dated 7 March 2022.

33. The psychologist met with the offender once by Audio-visual link from custody, for the purpose of preparing the report. The content of the report can be summarised as follows.

34. The offender was born in South Auckland, New Zealand in 1991 and is now aged 31 years of age. He has a Maori background on both sides of his family. There are two older brothers aged 35 and 32 and he is close to them. The offender described having a good upbringing and that his parents were good, strong, loving and caring people. His parents are still together and loyal to each other. He was disciplined by his parents appropriately.

35. The family moved from South Auckland to the East Coast of New Zealand when he was about 15 years of age. He family lived by the beach and he liked it there. In 2006 the family moved to Australia as his family secured a job in a Ford dealership. His parents moved back to New Zealand in 2017 and his father has had a number of strokes. The offender stayed behind in Australia and lived with one of his older brothers because by this stage he had a son with his former partner.

36. The offender had good friendships at school and left school at Year 11 after being advised by a teacher to do so, he did not have any disciplinary issues. He regarded himself as being of average intelligence.

37. On leaving school he engaged in factory work, labouring, scaffolding, as well as employment as a security guard and a support worker. He worked for a gas company for some time as a delivery driver which he really enjoyed. He has always had a strong desire to work and has never had a period of unemployment. He has received a Responsible Service of Alcohol Certificate, a First Aid Certificate and a Forklift Licence.

38. The offender met his ex-partner when he was 18 years of age. They had been in a relationship for 10 years and they have a son aged six and a half. He has had regular contact with his son up until being taken into custody. His ex-partner does not want him to speak to his son while he is incarcerated, which has deeply upset the offender. The relationship ended due to money troubles although he maintains a civil relationship with her out of concern for his son.

39. At more recent times the offender described himself as being surrounded by associates who engage in drinking and drug use, and he accepted that they were a negative influence on his life.

40. The offender has had no prior psychological diagnoses and has not sought any mental health treatment.

41. At about the time of the offence he began to experience low mood, anxiety, worrying and rumination, disturbed sleep and low motivation. He stated that he had lost purpose and was no longer with his partner and had become derailed from his goal of buying a house with his family which he was working hard to save money for.

42. He coped poorly and engaged in alcohol and drug use. He began to use alcohol, cocaine and pills intermittently when he worked as a security guard about seven years ago. At the time of the offence he would drink about a six pack of beer or bourbon daily and use cocaine in two to three grams per week.

43. He recently attended an alcohol addiction program which he found to be beneficial and has since ceased both his alcohol and drug use. He is motivated to maintain his abstinence for his son as he does not want to miss out on being involved in his life.

44. The offender told the psychologist that he had previously had a gambling addiction where he would spend about $1,000 per week on poker machines and sports betting. He slowly stopped this by distancing himself from the people that engaged in that behaviour after realising that his addiction was not healthy. Instead, he engaged in vigorous exercise, walking and going to the beach.

45. The offender has a reported criminal history relating to apprehended violence orders from a subsequent relationship following the end of the relationship with his partner. He said this was the result of several arguments and admitted to making a mistake.

46. The offender told the psychologist that he had become involved with the wrong crowd and was asked to accompany a friend to help him to collect money. He said that he did not need the money as he was working and only agreed to engage in the offence to assist his friend. He expressed remorse and regret, stating “It was stupid what I did and I should never have agreed to it". The offender told the psychologist he plans to stay away from negative influences in the future and to keep himself busy with employment and engaging with his son, as well as abstinence from alcohol and drugs.

47. The psychologist administered a number of psychometric tests indicating that the offender was experiencing symptoms of depression in the extremely severe range, anxiety in the extremely severe range and stress in the mild range. The psychometric testing confirmed the diagnosis of substance abuse disorder, and alcohol use disorder, which were both in early remission.

48. The psychologist opined that the offender was having several psychological symptoms relating to low mood, anxiety and low motivation following the end of his long term relationship with the mother of his son. He had become exposed to drug and alcohol use through his work as a security guard and eventually progressed to regular and excessive use as a means of coping with emotional stress, particularly his relationship breakdown.

49. The psychologist opined that the offender has a few protective factors that will reduce his risk of re-offending, in particular his history of regular employment, as well as his ability to establish some pro-social goals of buying a house and supporting his family. His risk of re-offending comes from his use of alcohol and drugs as well as a vulnerability to be persuaded or influenced by others. His behaviour in the offence indicates an over-reliance perhaps on approval by others.

50. The psychologist opined that the offender showed some insight in relation to his addictive behaviour and expressed motivation to engage in rehabilitation programs to prevent relapse. The psychologist opined it was also important that he engage in underlying issues such as poor emotional regulation and management of his negative mood.

51. The offender expressed regret and remorse for the offence to the psychologist which she opined to be genuine.

52. The psychologist recommended that the offender engage in treatment for his addictions as well as for his psychological condition. The psychologist opined that a period of residential rehabilitation for his drug and alcohol use may be of some benefit.

Objective Seriousness

53. The offence involves some objective gravity.

54. The circumstance of aggravation relied on by the prosecution is that the offender broke into the premises knowing that there were people present inside. There are a number of aggravating factors referred to in s 21A(2) Crimes Sentencing Procedure Act 1999 that are established, that I will return to. To the extent that those matters are also referred to in assessing the objective seriousness of the offence, I have not double-counted those factors.

55. The offence involved some planning. The co-offenders exchanged text messages in the days leading up to the offence, as well as having discussions amongst themselves at the time of the offence as to how it would be committed.

56. The offence involved multiple incursions into the same property.

57. The offenders spoke to the victim who told them to leave. The victim was pushed when she tried to intervene.

58. The victim was in her own home and vulnerable to an attack by the younger male offenders, who were in company.

59. The offence was committed for financial gain. The offenders stole a safe. There was no evidence as to the value of the property taken.

60. I have taken into account the maximum penalty for the offence and the standard non-parole period.

Deterrence

61. General deterrence is of significance to the offences before the Court, One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offender and other persons intending to commit similar crimes that they will meet with appropriate punishment.

62. General deterrence can be afforded less weight where an offender suffers from a mental condition because they are not an appropriate person to be made an example of. I accept the psychologist’s opinion that the offender was suffering from an undiagnosed general anxiety disorder at the time of the offence and that it was causally connected to his involvement in the offence, to some small extent. It is appropriate to find that the offender’s moral culpability for the offence is reduced to a minor extent.

63. There is also a need for specific deterrence in this case. The offender’s criminal record has been getting steadily worse, with this case representing his first major offence. This offender needs to realise by reference to the penalty imposed for this offence, that if he keeps committing offences that he will be met with penalties of increasing severity.

Aggravating Factors

64. The offence involved the actual use of violence, but the level of violence was relatively minor.

65. The offence was committed in company.

66. The offence was committed in the home of the victim.

67. The offence was committed when the offender was on conditional liberty. At the time, the offender was on bail.

Mitigating Factors

68. The offender does not have a significant record of previous convictions. The offender had a criminal record at the time of the offence, that was relatively insignificant.

69. The offender has demonstrated remorse.

70. The offender entered a plea of guilty which indicates remorse.

71. The offender has been in custody, bail refused for this offence since 15 May 2021. It is appropriate to back date the custodial sentence to this date. I have also taken into account the conditions that have been experienced by all prisoners in NSW as a result of the responses to the pandemic

Penalty

72. The offender is convicted.

73. I make a finding of special circumstances. This is the offender’s first custodial sentence and he was mental health and addiction issues that justify an extended parole period.

74. I impose to a term of imprisonment of 2 years and 6 months, with a non-parole period of 15 months to date from 15 May 2021. The non-parole period will expire on 14 August 2022 and the head sentence will expire on 14 November 2023. The offender is to be released to parole on 15 August 2022.

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Decision last updated: 15 September 2022