R v Pfuhl

[2019] NSWDC 553

District Court

New South Wales

Medium Neutral Citation:	R v Pfuhl [2019] NSWDC 553
Hearing dates:	13 May 2019
Date of orders:	13 May 2019
Decision date:	13 May 2019
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	Convicted. Sentenced to imprisonment for a period of 19 months with a non-parole period of 10 months.
Catchwords:	CRIMINAL LAW – Sentence – Dishonestly obtain a financial advantage by deception – On conditional liberty at time of offending – Totality
Legislation Cited:	Crimes Act Criminal Procedure Act. Crimes (Sentencing Procedure) Act
Category:	Sentence
Parties:	The Crown Stephen Pfuhl
Representation:	Counsel: Mr P Lynch – The Crown Dr R Webb – The offender     Solicitors:
File Number(s):	2017/262904

Judgment

1. HIS HONOUR: Stephen Pfuhl is before the Court for sentence in relation to his plea of guilty last week to one count of dishonestly obtaining a financial advantage by deception in breach of s 192E(1)(b) of the Crimes Act. That matter provides for a maximum penalty of ten years’ imprisonment and no standard non-parole period has any application. The matter stands for sentence alone and there is no matter before the Court either on a Form 1 or pursuant to s 166 of the Criminal Procedure Act.

2. I am told by the parties and accept that Mr Pfuhl indicated in the Local Court that he would plead guilty to this count in full satisfaction of all charges then brought against him, but no formal plea was entered in that jurisdiction to this particular count.

3. On 7 May 2018, Syme DCJ, with the consent of the parties, made an order that two other counts on indictment that were the subject of pleas of not guilty, proceed by way of judge alone. Last week I heard the evidence on those matters and today acquitted Mr Pfuhl in relation to those two counts. I will return to that history in due course in terms of some calculation of the utilitarian discount that is available to him.

4. The facts are not agreed between the parties but drawn from evidence given before me in the two matters for trial. In short, the victim of the offence Yiyu Zheng, , had been detained by two other offenders, Mr Sikar and Mr Cleary, in residential flat premises that sometimes also operated as a place for the sale, purchase, and use of ice . This offender knew that Mr Zheng had been electrocuted with a handmade Taser held within the premises, and at one stage was held within a bedroom within the premises, and had then been the subject of an armed robbery during the course of the detention and the robbery.

5. Mr Zheng had been threatened with an imitation pistol that looked incredibly lifelike, and had also been threatened with what was described in evidence as a combat knife, not being consistent with a kitchen knife. As a result of the robbery, this offender came into possession of a card by which Mr Zheng could withdraw money from an ATM, and the PIN number to enable that withdrawal to happen. On my finding, Mr Zheng at the effect of one of the other offenders, had made arrangements to transfer money within his bank account so that there was an amount of at least $500 available for withdrawal on the offence, which was 10 August 2017.

6. The offender left the premises where Mr Zheng was being held, went to a local hostelry known as the Duke of Gloucester Hotel, colloquially known as “The Dog,” and from an ATM within those premises had withdrawn $500 in cash. He returned to the residential premises, where he handed the $500 in cash to the offender, Mr Cleary, and in due course was given $20.

7. I am in a position to find on the balance of probabilities that the only fruit of the offence for the offender apart from escaping with his dignity and body intact from Mr Sikar and Mr Cleary was $20 in cash. The level of planning was not towards the lowest end but to the medium point in the sense that it involved both acquiring a card, acquiring a pin number, and an arrangement by the other offenders for the transfer of money. The temporal passage of the event was relatively limited.

8. The offending is made more serious in circumstances where this offender knew that Mr Zheng had effectively been terrorised in advance of the opportunistic offence that he undertook. I accept that his role was a vital one but that he, to some extent, although not consistent with duress, felt himself a bit suborned by the violent conduct of the other two men.

9. The offence is aggravated because he was in breach of conditional liberty; that is, being on bail for an aggravated break, enter, and steal at the time of the commission of the offence.

10. Although the amount of money was relatively small across offences in breach of s 192E, many breaches of that provision are for amounts of less than $100 to avoid the need for the use of a pin number. Taking into account all the swings and roundabouts, I assess the objective seriousness of the matter as being below the midrange but not into the low range.

11. Dr Webb, who appears for Mr Pfuhl, made the bold assertion that the s 5 threshold had not been crossed, but that submission rested on my being prepared to find that the objective seriousness of the matter was to the lowest end of the range, which it is clear I have not.

12. Turning to some matters personal to the offender, he is still a relatively young man, being in his late 20s. He has a limited record that denies him the leniency that would be available to somebody without any criminal record, but his criminal record does not serve to aggravate.

13. In 2008, he had some matters for dishonesty in the Children’s Court at Parramatta. The serious matter on his offence apart from the index offence is the aggravated break, enter, and steal for which he was on bail at the time of the current offence. In relation to that matter, he attracted a sentence of imprisonment of two years and three months with a non-parole period of 15 months. That sentence commenced the day after he went into custody for this matter. The non-parole period for that matter expired on 29 November 2018.

14. It is conceded by the Crown if I am to deal with Mr Pfuhl by way of a further sentence of full time imprisonment, which is my intention, that there is no cavil with the Court finding special circumstances, or indeed, having regard to principles of totality partially making any sentence partially concurrent as well as partially accumulative to the existing sentence. I propose to do both of those things in due course.

15. The Court has the benefit of an insightful psychological assessment from an Anita Duffy, who is one of the preeminent forensic psychologists providing reports to this Court. It is clear that the offender has the continued benefit of significant family support with his grandmother, who was his effective parent as he grew up, and his aunt and uncle being in attendance again today.

16. Some of the circumstances of his upbringing were difficult in the sense that his mother from time to time suffered from both a drug addiction and a gambling addiction, which rendered her an unsuitable full‑time parent.

17. The offender was brought up in the Christian faith and there are some references provided for the purpose of earlier proceedings that suggest that he is held in high regard by his former employer who was his master during the period that he undertook his panel beating apprenticeship. Regrettably, the business that that person conducted needed to be liquidated which meant that offender commenced a period of unemployment. Additionally, he had some personal sadness in terms of the difficult circumstances that are charted in the report in terms of the demise of his relationship with a girlfriend. I do not propose to go too much into that detail.

18. It is clear that the reversals in his personal life meant that his offender turned, to the pernicious drug of methylamphetamine. I have taken into account that the offence was committed whilst the offender had partaken of that drug. Although that is not a mitigating circumstance, it helps perhaps understand why somebody of original good character breached the law in this way as well as the way that he did in terms of the aggravated break, enter, and steal.

19. It is clear from the material before me that the effect of him remaining bail refused on this matter at the end of his non-parole period meant that he needed to be reclassified as a maximum-security prisoner. I take into account that the largely five months spent additional to his non-parole period, he has been held in more serious levels of security than somebody of his limited record having served the non-parole period usually would.

20. In terms of the calculation of the utilitarian discount, I accept that plea of guilty, albeit late in terms of its formal entry, had the effect that the other matters could be run by judge alone, and Mr Crown concedes a significant utilitarian benefit because of the way the matters move forward. Ultimately, I adopt the submission of the parties that the appropriate utilitarian discount in the exercise of my discretion is 20%.

21. I find special circumstances that are on the basis of three things. Firstly, issues of totality. Secondly, although the second sentence imposed, it remains this offender’s first time of period in imprisonment. Thirdly, he needs the support of a longer period on parole to make a transition back to lawful community life. I take into account that he has his grandmother’s premises to go to.

22. It is proper in my view, having taken into account the other matter as the breach of the conditional liberty of the other matter for which he served a sentence as being an aggravating circumstance and having regard to principles of totality, to have some degree of concurrence and some degree of accumulation to the sentence now imposed.

23. Stand up if you would, Mr Pfuhl.

24. But for the utilitarian discount, taking into account the maximum penalty, taking into account all the purposes of sentencing pursuant to s 3A of the Crimes (Sentencing Procedure) Act and having regard to the fact that the non‑parole period should be the minimum period that can do all the work of the purposes of sentencing, but for the utilitarian discount, the starting point sentence would have been two years.

25. After the application of the 20% discount and with a slight rounding in favour of the offender, these are the orders.

26. Mr Pfuhl, you are convicted. You are sentenced to a period of imprisonment of 19 months to date from 29 July 2018 and to expire on 28 February 2020. I fix a non-parole period of ten months, which means that your earliest date of release to parole is 28 May 2019.

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Decision last updated: 10 October 2019