R v Perez

[2019] NSWDC 781

District Court

New South Wales

Medium Neutral Citation:	R v Perez [2019] NSWDC 781
Hearing dates:	15 August 2019
Date of orders:	15 August 2019
Decision date:	15 August 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of five years, three months with a non-parole period of three years, ten months: at [17].
Catchwords:	SENTENCING — Aggravating factors — Planned or organised criminal activity SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — General principles — Form 1 offences — Purposes of sentencing — Co-offenders — Parity SENTENCING — Subjective considerations on sentence — Drug addiction — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General’s Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Bugmy v The Queen (2013) 249 CLR 571 Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190 R v Ponfield [1999] NSWCCA 435 R v Qutami (2001) 127 A Crim R 396
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown)   Pavel Perez (Offender)
Representation:	Mr A Paulos (Solicitor for the Crown)   Ms L Jardim (Counsel for the Offender)
File Number(s):	2016/4393

Judgment

1. A group that was described by a Strike Force as Colombian nationals also included a Mexican national, Pavel Perez, born in 1987, who committed a series of break, enter and stealing offences in Sydney over a period of a few days in September 2015.

2. Mr Perez pleaded guilty to four counts under s 112(2) of the Crimes Act1900, of aggravated break, enter and commit a serious indictable offence, namely larceny (Sequences 001, 004, 007, 009). Each offence carries a maximum penalty of 20 years imprisonment with five years standard non-parole period.

3. There are further four aggravated break and enters to be dealt with on a Form 1 attached to sequence 009. Those Form 1offences will be dealt with in the way suggested by the Chief Justice in the guideline judgment on those matters (Attorney General’s Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146)

4. The purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, are taken into account. It is common ground that a 25% discount on a term of imprisonment for the utilitarian value of the plea of guilty should be allowed.

5. Four co-offenders were dealt with by Blackmore DCJ and further dealt with by the Court of Criminal Appeal (Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190). Ultimately the co-offenders, Quintero and Carvajal received sentences of five years and three months imprisonment with a non-parole period of four years which I note is in excess of the 75% statutory ratio, a matter which I drew to counsels’ attention during the course of submissions.

6. Ms Jardim of counsel for the offender submits that questions of parity would lead to the imposition of a similar sentence to that imposed on Quintero and Carvajal, and the Crown does not cavil with that general proposition.

7. The offender has no criminal record in Mexico.

8. The agreed facts show that there was a total of more than $50,000 worth of cash and property taken in a series of offences, each having a similar modus operandi, where some of the offenders would break into a house, some would stay outside as lookouts and various items were stolen. During each of the offences, the offenders were recorded speaking to each other in Spanish on a conference call intercepted by police and a tracking device on the vehicle that they were travelling in recorded their movements. The eight offences occurred in suburbs in the south of Sydney between 10 September and 17 September 2015. Some of the offenders were arrested on 17 September but Perez fled the scene on foot, and he was at large for almost two years until attempting to leave Australia on Christmas Day 2017 when he was arrested at Brisbane Airport. He repeatedly stated to police that he wanted to plead guilty to the offences.

9. He served a sentence of imprisonment of nine months, with a six months non-parole period while he was in custody since his arrest on 25 December 2017 for a larceny committed in November 2014, shortly after he arrived in Australia.

10. In the exercise of my discretion I indicated that I would commence the term of imprisonment in this case two months after the date on which he went into custody to take account of questions of totality.

11. It is conceded of course that a term of full time custody is required in this case and it is unnecessary to consider any alternatives.

12. A lengthy history is set out in the report of Sam Borenstein. As the Crown correctly points out, it is treated with some caution in the absence of corroboration or other objective evidence in the light of cases such as R v Qutami (2001) 127 A Crim R 396, but it is a reasonable basis on which to proceed to sentence. The report outlined that the offender had a difficult time growing up in Mexico City. He saw his father murdered by being shot through the head. He was addicted to drugs for a significant period of time. There was a drug-free period from 2007 when his girlfriend fell pregnant leading to the birth of his daughter. His partner and his daughter have moved to the USA. He tried three times to follow them from Mexico, but on each occasion was rebuffed, and on the third occasion he was kidnapped in Tijuana and held captive. His family had to sell assets to raise the ransom for him to be released.

13. When he came to Australia in 2014, he had fallen back into a lifestyle of drug use. He would use up to 3 grams of ice a day, he underestimated how expensive it was to live in Australia and he was having difficulty finding employment. He says that during his period on the run he joined a Spanish church congregation in Melbourne which helped him with accommodation and drug rehabilitation, and I accept his expressions of guilt and remorse as confirmed by his earlier admissions to the police on his arrest.

14. Ms Jardim does not take issue with the helpful written submissions of the Crown which set out the purposes of sentencing and the way in which objective seriousness is to be assessed in this case, taking into account the limited guidance provided by R v Ponfield [1999] NSWCCA 435, but I accept that the objective seriousness is just below mid-range taking into account the fact that the occupants were not aware of the offences until they returned home, there was minimal damage in most cases, there was a planned and organised criminal enterprise and there was communication by conference call during the offending which could accurately be described as a crime spree. The total value of the property stolen was in excess of $50,000, some of which had sentimental value and there was a joint criminal enterprise in operation during the offending.

15. The fact that the offences were a part of planned or organised criminal activity is an aggravating factor. The mitigating factors include that his record is limited to the larceny offence in 2014, pre-dating the current matter, but I note his plea of guilty and his expressions of remorse.

16. There are Bugmy ((2013) 249 CLR 571) type considerations to be borne in mind, accepting his history of drug use and a less than ideal childhood and upbringing and, as did Schmidt J in determining the appeal, I accept that the deprived background is a matter that should be taken into account in the sentencing process when looking at questions of moral culpability and specific deterrence.

17. I note that Mr Borenstein asserts a direct causal link between the substance misuse disorder, recurrent depression and post-traumatic stress to the offending behaviour. I also accept that his time in custody has been a circuit breaker and he is reclaiming his physical and mental health and he has a realistic appreciation of the risk of relapsing without further counselling and treatment.

18. The orders that I will make are:

1. The offender is convicted of each offence.

2. I impose an aggregate sentence of imprisonment of five years and three months commencing 25 February 2018.

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

4. The indicative sentences are:

1. 001: 2 years, 2 months; NPP 1 year, 7 months;

2. 004: 2 years, 2 months; NPP 1 year, 7 months;

3. 007: 2 years, 2 months; NPP 1 year, 7 months;

4. 009, taking into account the Form 1 matters (002, 003, 005, 012): 2 years, 6 months; NPP 1 year, 10 months;

5. I find special circumstances.

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

**********

Decision last updated: 21 January 2020