R v Pickering

[2023] NSWDC 425

District Court

New South Wales

Medium Neutral Citation:

R v Pickering [2023] NSWDC 425

Hearing dates:

22 September 2023

Date of orders:

13 October 2023

Decision date:

13 October 2023

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Fulltime imprisonment. For orders see [92].

Catchwords:

CRIME – specially aggravated break enter and intentionally wound.

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

DPP (Cth) v MHK (2017) 267 A Crim R 235; [2017] VSCA 157

Fahs v Regina [2007] NSWCCA 26

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49

R v Fernando (1992) 76 A Crim R 58

R v Henry (1999) A Crim R 149; [1999] NSWCCA 111

R v Israil [2002] NSWCCA 225

R v Millwood [2021] NSWCCA 2

R v Robinson [2014] NSWCCA 12

Category:

Sentence

Parties:

Director of Public Prosecutions (the Crown)
Kye Pickering (offender)

Representation:

Counsel:
Mr A Karim (offender)

Solicitors:
Mr Strainer (the Crown)

File Number(s):

22/45026

Publication restriction:

Nil.

REMARKS on SENTENCE

1. The offender is to be sentenced in respect of an offence pursuant to s 112(3) of the Crimes Act 1900 of specially aggravated break enter and intentionally wound. The maximum penalty for the offence is 25 years imprisonment and there is a standard non-parole period prescribed of 7 years imprisonment.

2. The offence occurred on 13 February 2022 and the offender was arrested on 15 February 2022. He has been in custody since 15 February 2022 however on 20 July 2023 he was sentenced in respect of an earlier offence of aggravated break enter and steal in company pursuant to s 112(2) of the Crimes Act 1900 that he committed on 5 February 2022 some 8 days prior to the index offence. For that earlier offence he was sentenced to a term of imprisonment of 20 months with a non-parole period of 12 months commencing on 15 February 2022. That non-parole period expired on 14 February 2023.

3. The index offence was committed whilst the offender was on bail for two unrelated offences and also subject to a Conditional Release Order (“CRO”) and a Community Correction Order (“CCO”) in respect of unrelated offences. He was therefore on conditional liberty at the time of the offending.

4. The index offence was committed in company with three co-offenders who are referred to below. This was the circumstance of special aggravation in the charge, together with the offender intentionally wounding Mr G Raiola.

The sentence hearing

5. The sentence hearing took place on 22 September 2023. The Crown Sentence Summary became Exhibit A and it included a statement of agreed facts which may be summarised as follows.

6. The offender was born on 2 January 1999 and was therefore 23 years of age at the time of the offence on 13 February 2022. In the early hours of that day the offender was in the company of Boston Risati (aged 25 years), Chad Robertson (aged 31 years) and Daniel Rutherford (aged 25 years) at Rutherford’s home in Mascot. Between 2:44am and 2:51am the offender exchanged four phone calls with a Ms R Calabro who was at the home of Mr D Sikais at Tempe. Two other persons, Mr G Raiola and Ms S McGuinness were also at that address.

7. At 2:51am the co-offenders left Rutherford’s home at Mascot and got into two vehicles. Before leaving the co-offender Rutherford armed himself with a piece of wood.

8. The two vehicles arrived in the vicinity of the home of Sikais in Tempe at around 3:03am. The offender had remained in phone contact with Ms Calabro between 2:52am and 3:05am. The vehicle in which the offender was travelling as a passenger was captured on CCTV footage driving back and forth past the Tempe premises.

9. At some point the offender and Risati relocated to the other vehicle and the four co-offenders parked outside the Tempe premises at 3.22am. The offender exited from the rear passenger side of the vehicle and was armed with a 50cm long machete. Rutherford was still armed with a white piece of wood.

10. The offence occurred when the co-offenders entered the courtyard of the premises and immediately tried to force entry into the residence by smashing the rear sliding glass door. One of the co-offender’s removed the fly screen and threw into the courtyard. A male occupant inside the shouted, “Stop, stop, stop” and then opened the glass sliding door.

11. The offender, Risati and Rutherford then assaulted Sikais and Raiola. During the incident Sikais was struck in the face, causing facial injuries. The offender struck him on the right wrist with his machete, intending to wound him. The blow severed multiple tendons causing a significant wound. At 3.23am Sikais was chased onto the street by Risati who punched him in the middle of the road several times before returning to the premises. At 3.24am he was then chased onto the street again by both the offender and Risati. The offender cornered Sikais against the vehicle in which the co-offenders had arrived and punched him, causing blood from Sikais to fall on that vehicle. Risati then approached as the offender was assaulting Sikais and cornered him against the vehicle however Sikais managed to flee from them.

12. At 3.25am the offenders returned to the vehicle and drove back to Rutherford’s home address at Mascot. Ms Calabro returned with them.

13. Ms McGuiness called 000 and police arrived shortly thereafter. They applied two torniquets to Raiola’s arm to stem the bleeding before he was transported to Royal Prince Alfred Hospital for treatment. His injuries included transection of multiple extensor tendons at his right wrist and a splint though several bones in the hand. It is accepted that the injuries do not amount to grievous bodily harm as the tendons were able to be repaired surgically.

14. Sikais was attended to by paramedics at the Tempe premises but refused to receive medical assistance or to be taken to hospital. He was observed to have blood coming from his nose, a laceration to the top of his head and bruising under his right eye. Both victims declined to provide statements to the police. Police observed the glass sliding door to the premises had been smashed and the flyscreen door was lying in the courtyard. The premises appeared to have been ransacked with numerous items strewn about and there were blood droplets on the ground leading towards the lounge area.

15. On 15 February 2022 police executed a search warrant at Rutherford’s address where they found blood-splattered clothing worn by the offender and co-offenders together with a number of bottles of prescription and prohibited drugs as well as court listing notices in the name of Raiola. A search of Rutherford’s vehicle revealed a 50cm long black machete used by the offender during the offence and blood spots were located on the bonnet of the vehicle.

16. Forensic analysis revealed the offender’s DNA profile matched the major DNA component from the trace swab taken from the inner mouth region of a black mask located on the floor of the Tempe premises. A DNA profile consistent with the victim was developed from the blood spot left on the machete whilst DNA profiles consistent with the offender were located on tape that was taken from the machete handle.

17. The offender was arrested during the execution of the search warrant and participated in an ERISP during which he denied being involved in the break and enter offence at Tempe, however he confirmed he was the male depicted in CCTV footage stills before and after the offence at the Mascot premises.

18. The co-offenders were subsequently arrested. Following his arrest on 7 June 2022 Risati made a number of admissions, including that following their arrival at the premises at Tempe he picked up a piece of wood approximately 30-50cm in length and hit the glass sliding door with it, causing the glass to shatter and the wood to break. He then used his left foot to kick the glass causing a laceration to his left ankle. He told police that he needed money at the time of the offence as he was homeless and went to the location to obtain money from the people within. He also admitted to assaulting Sikais several times by punching him to the face before the victim broke free and ran out of the premises onto the roadway. He then gave chase to the victim and punched him further whilst out in the street.

19. When shown images taken from CCTV obtained from the Mascot premises Risati made admissions that one of the persons depicted within the footage was himself, but he did not name any other people depicted within the images.

20. Exhibit A contained the offender’s criminal antecedents which commenced in the Children’s Court in 2015 when he was then 16 years of age. In 2018 the offender was sentenced to imprisonment in respect of two offences of aggravated break and enter dwelling in company (steal) for 24 months and 9 months respectively with a non-parole period of 9 months for each offence commencing on 12 May 2018. In February 2021 he was sentenced in respect of offences of common assault and larceny to CCOs of 18 months and 12 months respectively, both commencing on 7 February 2021.

21. On 13 April 2021 the offender was sentenced for an offence of enter vehicle or boat without consent of owner/occupier by way of a CRO for 12 months commencing on 13 April 2021. It was this order, together with the CCO referred to above, that was breached by the index offending.

22. In addition, he had been convicted of numerous other traffic offences and offences involving dishonesty, and damage to property. Exhibit A also included the agreed facts in respect of the offence of aggravated break enter and steal committed by the offender on 5 February 2022 and for which he was sentenced on 20 July 2023 to imprisonment for 20 months with a non-parole period of 12 months, commencing on 15 February 2022. The sentencing Court took into account a further matter on a Form 1, an offence of intentionally damage property pursuant to s 191(1)(a) of the Crimes Act 1900.

23. Exhibit A included the custodial history of the offender which revealed two infractions in August 2022 during his present custody.

24. Exhibit A also included agreed facts and criminal history for the co-offenders Risati, Rutherford and Robertson. Also included were the sentencing remarks of Judge Wass SC who sentenced both Rutherford and Risati on 4 August 2023. Both co-offenders were sentenced for a break and enter and commit serious indictable offence of larceny in circumstances of aggravation of being in company, pursuant to s 112(2), which charge carried a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years. Both offenders also had an offence of affray taken into account on a Form 1 which carried a maximum penalty of 10 years imprisonment. Rutherford also had another matter taken into account on a Form 1, being an unrelated matter which gave rise to one count of dishonestly obtain property by deception and a break and enter. Both co-offenders pleaded guilty in the Local Court and were afforded a 25% utilitarian discount on sentence.

25. Rutherford was sentenced to a term of imprisonment of 2 years and 8 months commencing on 15 March 2022 with a non-parole period of 16 months which expired on 14 July 2023. Risati was sentenced to a term of imprisonment of 3 years and 3 months commencing on 7 July 2022 with a non-parole period of 20 months which expires on 6 March 2024. These sentences will give rise to the requirement for principles of parity to be applied in sentencing the offender for the index offence.

The offender’s evidence

26. The offender adduced the following documents. Exhibit 1 was a letter from the offender’s mother who advised that for the most part, up until the current offence the offender was residing at home with her and his younger brother. Having since communicated with him on a daily basis she stated that the offender is definitely remorseful for his actions and is determined to change his life for the good. He has been studying and undertaking a number of courses as well as working when possible, aiming towards a better future for himself when released.

27. Mrs Pickering reported that until his late teens, the offender was dedicated to the sport of rugby league and played at an elite level. Unfortunately he commenced experimenting with drugs which resulted in an addiction causing major mental health and substance abuse problems. This was an especially stressful period for the family who tried to get help for the offender that he needed, in several detox and rehabilitation facilities. However the waiting periods were lengthy, and he would end up relapsing and spiralling out of control for weeks on end, away from home and then land himself in trouble with the authorities.

28. Mrs Pickering stated that the offender has never really received the help that he needs for his drug dependence which would help him learn the foundations of how to live a drug free, clean life for the long term. Therefore her belief was that it would be highly beneficial for him to be admitted to a compulsory drug treatment facility. Mrs Pickering stated that it would be in the offender’s best interests if he could be sentenced to the compulsory drug treatment correctional centre at Parklea Correctional Centre, that she had contacted the facility and that the offender meets the eligibility criteria. A further benefit of him attending this program is that he would be in much closer proximity to her to enable her to visit him. Mrs Pickering stated her belief that the offender has much potential for his future if given the right tools and help to be rehabilitated as much as possible before release.

29. Exhibit 2 is a statement from Mr E Reyes dated 9 February 2023. Mr Reyes is the fulltime chaplain at Bathurst Correctional Centre and noted that the offender had satisfactorily completed eight sessions of a positive lifestyle program produced by the Salvation Army. He further noted that the offender had expressed a desire to amend his life and behaviour with a view to never returning to prison, realising that he needs to make some major changes in his life.

30. Exhibit 3 were five certificates of attainment of courses completed by the offender whilst in custody.

31. Exhibit 4 was a letter from the offender to the Court in which he described witnessing domestic violence perpetrated by his father on his mother and himself. Even when his father left he missed him and blamed himself. He also disclosed that he had been sexually abused at a Juvenile Justice facility which was something he had been unable to talk about only up until recently. He found an outlet in prohibited drugs and described his life rapidly going downhill.

32. The offender acknowledged, having reflected on his life, that something has to change and that he really wanted to fix his life and turn it around. Upon release he will be living with his mother who he described as “a hardworking, good community member who was still supporting him.” He also expressed a desire to gain employment in the scaffolding industry. The offender stated that he is hoping to be able to just live, being the good person he knows that he could be and not being involved in anything to do with drugs. He expressed a desire to change it all around before it is too late.

33. Exhibit 5 was a report from Dr S Xia consultant forensic psychiatrist dated 13 July 2023. The offender was clinically assessed on 5 July 2023 for two hours via audio-visual link. Dr Xia took a past family and psychiatric history in which the offender stated he had been diagnosed with severe PTSD and severe depression as well as anxiety. His first mental health contact was between the ages of 13 and 15 when he received counselling for depressive symptoms. His first mental health admission was at the age of 14 or 15 in the context of expressing suicidal ideation. On that occasion he was admitted for five to six days at Manly Hospital but was not commenced on medication. He reported multiple other admissions to mental health units in the context of low mood and psychotic symptoms and that he had had a lot of suicide attempts, as well as a history of deliberate self-harm. He had been treated from time to time with antidepressants and was commenced on Mirtazapine by his GP prior to entering custody.

34. The offender also described a history of physical trauma and physical assaults.

35. Dr Xia took a history of the offender’s substance abuse. He commenced drinking alcohol at the age of 12 and was drinking regularly at the age of 14. He commenced using cannabis at the age of 12 or 13 and began using crystal methamphetamine or “ice” at the age of 16. That use escalated to intravenous use of a maximum of 1 gram per day and he described it causing increased anxiety, paranoia and auditory hallucinations.

36. The offender began using cocaine at the age of 14 and began regular use at age 15 until the age of 22. He also began using Xanax at age 14 or 15 and was regularly using it at the age of 16 with ice. He attributes the index offending to the use of Xanax. The offender also reported using GHB at the age of 17 which he used regularly with ice and began using intravenous heroin at the age of 19. He was on Suboxone prior to entering custody however disengaged from treatment because he had recommenced ice use. He began using Buvidal approximately 8 months ago.

37. The offender also reported having issues with gambling. He would gamble more than he could potentially afford, sometimes his whole pay cheque. In the context of financial losses secondary to gambling he would commit crimes.

38. Dr Xia also took a forensic history reporting on the offender’s criminal antecedents. He had spent some time in Juvenile Justice and his longest period in custody was 9 months at the age of 19 for a charge of aggravated break and enter.

39. Dr Xia also took a developmental history in which the offender outlined the domestic abuse and violence referred to above and described his childhood as “tough”. He described his mother as “the only thing in my life I really care about”. He also reported two significant relationships, both with older women and both of which involved substance abuse and violence towards him.

40. In relation to the index offence, the offender reported that he was using Xanax and ice at the time and was “off my head”. He reported to Dr Xia that one of his friends was in trouble and the four co-offenders went to sort it out. He described his actions as “absolutely stupid” and on reflection stated that he would not have done it if he wasn’t using drugs.

41. Dr Xia reported on the available medical records and opined that on the basis of the available information, the offender fulfilled criteria for a diagnosis of Post-Traumatic Stress Disorder (“PTSD”). He had experienced traumatic evidence of multiple episodes of physical violence as well as childhood sexual abuse whilst in Juvenile Justice. He had a history of marked alternations in arousal and reactivity resulting in a history of reckless and self-destructive behaviours which had been ongoing for many years. Dr Xia opined that the offender fulfilled the criteria for Complex PTSD and a Substance Use Disorder (“SUD”) specifically with ice, benzodiazepines and opiates. His developmental history also indicated a potential learning disorder however there was no evidence of a formal diagnosis.

42. In respect of the offender’s risk of further violent offending, Dr Xia opined that he fulfills the criteria for a Major Mental Disorder (“MMD”). She stated he “has a high loading of historical risk factors, which are associated with an elevated risk of violence in the longer term.

43. Dr Xia stated that he has limited protective factors for violent risk however positively he expresses motivation to engage in treatment and has some life goals. She set out a treatment regime including referral to a drug and alcohol service, engagement with ongoing psychological services and continuation on supervised but regular Mirtazapine dosage. Upon his release into the community he would benefit from strict supervision and external controls in maintaining abstinence and engaging in drug and alcohol and mental health treatment.

The Crown submissions

44. The Crown submits that the objective seriousness of the offending fell above the mid-range and noted that in the sentencing remarks for the co-offenders Rutherford and Risati the offender was described as “the ringleader”.

45. The Crown referred to the following aggravating factors:-

1. Armed with a weapon, i.e. the machete (s 21A(2)(c))

2. The offence was committed in the home of the victims (s 21A(2)(eb))

3. The offence involved actual violence upon Mr Sikais to the level of actual bodily harm (s 21A(2)(b))

4. The wounding of Mr Raiola required surgical intervention.

5. Record of previous convictions; and

6. The offender was subject to conditional liberty.

46. The Crown conceded the offender had pleaded guilty in the Local Court and was entitled to a 25% utilitarian discount on sentence. The Crown noted there is a standard non-parole period of 7 years applicable to the index offence.

47. The Crown referred to the offender’s description of the offence to Dr Xia as some sort of rescue mission to stop Ms Calabro being “harassed”. The Crown submitted this was at odds in driving his vehicle “back and forth, back and forth” past the victim’s address before transferring himself into the other vehicle. Referring to this as “an inconsistency” the Crown submitted that his expressed remorse is of uncertain sincerity.

48. The Crown noted Dr Xia’s description that the offender has a “high loading of historical risk factors and a low loading of current risk factors associated with violent reoffending”. It was also noted that he had “limited protective factors for violence risk”.

49. The Crown submitted that the offender had been in custody solely referable to the index offence from 15 February 2022. In his oral submissions the Crown rehearsed his submission that the objective seriousness of the offending was above mid-range and that the offender was the ringleader. The Crown conceded special circumstances and rehearsed its submissions about the questionable sincerity of his expression of remorse to Dr Xia.

50. With respect to the commencement date of any sentence, the Crown conceded the Court’s discretion concerning the question of concurrency with his previous sentence in which the non-parole period expired on 14 February 2022 as both offences occurred within the same time frame. However the Crown submitted the sentence for the index offence should not be subsumed into the previous sentence.

51. The Crown submitted that the threshold of s 5 of the CSPA has been met and no penalty other than imprisonment is appropriate.

The offender’s submissions

52. Counsel for the offender also relied on a thorough and detailed written outline of submissions in which it was conceded that the offence was objectively serious and that a term of imprisonment is the only appropriate sentence. It was acknowledged that the violence and threats upon the victims would have been frightening and were committed in company and that general deterrence and denunciation would play an important role in sentencing.

53. Counsel for the offender agreed that the following were aggravating features of the offending:-

1. That the offender was armed with a machete.

2. That the offence was committed in the home of the victims.

54. It was not agreed that actual or threat of violence was an aggravating feature because both threats and violence are inherent in the nature of the offence.

55. Counsel submitted that the offending was below mid-range. It was submitted that the 7 year standard non-parole period was a relevant factor as a statutory guidepost.

56. The offender submitted that the pre-sentence custody of 1 year 7 months and 7 days, as at the date of sentence, should be taken into account and any sentence should be backdated to take into account the total period spent in custody.

57. The offender submitted the objective seriousness of the offending fell below mid-range for the following reasons:-

“a. The section encompasses more serious offending.

b. The circumstances of aggravation, relied upon, are not the most serious examples of such. Although no doubt it would have created a frightening situation for the victim.

c. The assault creating the wound was only one strike. This of course does not mitigate or take away from the frightening nature of the violence. However, it does allow the court to place the offence on an objective scale.

d. The injury suffered was not life threatening.

e. There is no medical evidence to suggest that the injuries have caused more serious complications. In fact, to the contrary, the evidence highlights that the victim made a full recovery.

f. No organs were impacted.

g. There is no evidence of scarring where its psychological impact may be greater.

h. Whilst there was planning, it lacked sophistication and does not reach a threshold where the planning would aggravate, relying on Fahs v Regina [2007] NSWCCA 26 at [21].”

58. Counsel relied on the following subjective factors. The offender had a history of mental health issues with admissions to hospital. He had been prescribed medication but had not been compliant with it from time to time. He had engaged in deliberate self-harm at times and had been subjected to serious violence as a child.

59. The offender had commenced alcohol consumption at age 12, marijuana consumption between 12 and 13 years, crystal methylamphetamine consumption at age 16, cocaine consumption at age 14 and had commenced benzodiazepines, GBH, opiates and other inhalants from age 14 to 17. In addition he had a reported history of gambling issues and had been sexually assaulted at age 17.

60. All of the above issues had occurred in his formative years at an age where he had very little rational choice. Not only does that history provide an explanation for the offending but it also acts as a mitigating factor.

61. Counsel submitted that the offender’s drug addiction was not a mitigating factor but could reduce the offender’s moral culpability, relying on R v Henry (1999) A Crim R 149; [1999] NSWCCA 111 and R v Millwood [2012] NSWCCA 2 per Simpson J at [69].

62. Whilst there was no direct causal relationship between the offender’s mental health issues as outlined in the report of Dr Xia, his history of mental health issues combined with substance abuse, family history and exposure to violence provided an explanation as to why the offending occurred. In those circumstances the elements of general deterrence and specific deterrence carry less weight in the sentencing exercise, relying on R v Israil [2002] NSWCCA 255 at [22]-[25].

63. Counsel submitted that the offender had expressed contrition, remorse and responsibility for the offence to family, psychologists and in his letter of apology to the Court. He has a residence arranged upon release from custody and has completed a number of programs whilst in custody which lend to his prospects of rehabilitation and diminishes his risk of reoffending.

64. It was further submitted that the offender is at a crossroad, relying on R v Robinson [2014] NSWCCA 12 at [55] to ask for leniency in sentencing at this stage of his life which may lead to reform.

65. Finally, it was submitted that the Court should find special circumstances based on the offender’s age and the need for a longer period on parole for the purposes of rehabilitation and protection of the community.

66. In his oral submissions, counsel outlined the timeline of the commission of the index offence eight days following his previous offence to support his submission that the sentence should be backdated to 15 February 2022 pursuant to s 47(2) of the CSPA.

67. Counsel also highlighted the progress the offender had made in his rehabilitation since August 2022. He has participated in numerous courses and the Court should avoid imposing a crushing sentence.

68. Counsel addressed the submissions made on behalf of the Crown as to the aggravating circumstances applicable here. The violence here led to actual bodily harm by way of wounding which elevated the charge from s 112(2) to an offence pursuant to s 112(3) and the Court should therefore be careful not to double count that aspect of the matter.

69. Counsel agreed with the Crown’s submissions regarding the involvement of the accused and his use and knowledge of the machete. Otherwise the difference between his role and conduct and the co-offenders’ was not substantial. For example Risati was just as involved in the instigation and planning and had foresight of the possibility of wounding. The wound of itself, although frightening, was at the lower end of the scale and not life threatening. There was no medical evidence about its sequalae and no organs were impacted. Further there was no evidence concerning scarring or any psychological damage caused to the victims. It was clear that the offending lacked sophistication.

70. Counsel submitted that the offender was not the “ringleader” as described by Judge Wass SC who sentenced the co-offenders on different agreed facts.

71. It was submitted that the significant subjective factors outlined above brought into play the principles in R v Fernando (1992) 76 A Crim R 58 and Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. Counsel rehearsed the offender’s history of mental health admissions, self-harm and introduction to alcohol and prohibited drugs from an early age which not only reduced his moral culpability but warranted a finding of special circumstances.

72. Counsel submitted that whilst the offender’s mental health issues did not have a direct nexus to the offending conduct here, it was relevant to his subjective case and the weight to be given to general and specific deterrence.

Determination

73. S 3A of the CSPA sets out the purposes of sentencing as follows:-

"3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community".

74. In assessing the objective seriousness of the offending I take into account that s 112(3) of the Crimes Act encompasses a broad range of serious criminal conduct, as indicated by the maximum penalty of 25 years and the standard non-parole period prescribed of 7 years imprisonment. In assessing the objective seriousness of the index offence I have had regard to the role and conduct of the offender. It was the offender who was in contact with Ms Calabro in the early hours of the morning. She was at the premises in Tempe, apparently being “harassed” by the other occupants. This led to the offender and three co-offenders travelling from Mascot to Tempe in two vehicles before the offender relocated to the second vehicle which then parked outside the Tempe premises.

75. I am not bound by the characterisation by Judge Wass SC of the offender as “ringleader”, as the co-offenders were sentenced on different agreed facts. However it is clear that the offender’s participation was integral to the criminal enterprise which all four co-offenders embarked on and perpetrated at the Tempe premises. Also relevant is that the offender armed himself with a machete with which he struck Sikais on the right wrist, causing actual bodily harm during the incident. I have taken into account that the injuries suffered by the victim were not life threatening and the evidence suggests that he has made a full recovery. I also find that whilst there was some planning involved, the offending lacked sophistication. I therefore find that the offending fell just below the mid-range for an offence pursuant to s 112(3) of the Crimes Act, in the upper part of the low range. It still constituted serious offending.

76. I find the following aggravating factors:-

1. The offender was armed with a weapon, i.e. the machete (s 21A(2)(c)).

2. The offence was committed in the home of the victims (s 21A(2)(eb)).

77. I have not taken into account that the offence involved actual or threatened use of violence or that it was committed in company as aggravating factors as these are inherent in the offence. It is however an aggravating factor pursuant to s 21A(2)(j) that the offence was committed whilst the offender was on conditional liberty and that the offender had a record of previous convictions for similar offences (s 21A(2)(d)).

78. The fact that the offender was well affected by prohibited drugs at the time of the offending is not a mitigating factor. It does, together with his history of drug abuse from an early age, give context to the offending.

79. General deterrence is important in sentencing for specially aggravated break and enter offences. A clear message must be sent to likeminded persons in the community that Parliament has prescribed lengthy maximum periods of imprisonment, in this case 25 years, and a standard non-parole period of 7 years imprisonment and that the courts will impose condign punishment in appropriate cases. The maximum penalty and standard non-parole period are guidelines in the sentencing process.

80. Specific deterrence is also important in sentencing for such offences, as the offender must understand that if he continues to offend in this manner he will be sentenced to increasingly long periods of imprisonment.

81. The offender entered an early plea of guilty and is entitled to a 25% utilitarian discount on sentence. I am also satisfied that he is remorseful for his offending, having expressed remorse to Dr Xia, his mother and the Court. I do not accept the Crown submission that merely by driving past the premises on a number of occasions doubt is cast on the sincerity of his expressions of remorse.

82. The offender has made some progress with his rehabilitation by completing courses in custody. He is presently taking Buvidal and his prospects of rehabilitation are entirely dependent upon him obtaining appropriate help for his mental health, drug and gambling issues. Any prognosis for his prospects of rehabilitation depend very much on the offender’s adoption of and adherence to relapse prevention strategies and therefore must be somewhat guarded.

83. Similarly, the offender’s risk of recidivism must be viewed having regard to Dr Xia’s opinion that he has a high loading of historical risk factors which are associated with an elevated risk of violence in the longer term, and that he has limited protective factors for violent risk. I accept that he does have motivation at present to engage in treatment and has developed some life goals. Nevertheless, given his background and criminal history he must be regarded as a real risk of reoffending unless he addresses his criminogenic needs.

84. The offender was 23 years of age at the time of the index offence, and for a young man had a significant criminal history, as outlined above, which disentitles him to leniency. However there are significant subjective factors to be taken into account, in particular his early exposure to domestic violence, alcohol and abuse of prohibited drugs leading to not only poly-substance abuse but serious mental health issues together with sexual abuse. Whilst there is no nexus between his mental health and the index offending, these are matters that diminish his moral culpability for the offending and diminish the significance of general and specific deterrence in sentencing. The offender is now 24 years of age and is at a crossroads in his life whereby if he is not assisted to address his criminogenic needs he will run a real and substantial risk of becoming institutionalised.

85. The principle of parity is a principle of equal justice where like cases should be treated alike, and different cases differently – see Green v The Queen (2011) 244 CLR 462; [2011] HCA 49. Thus in sentencing for the index offence I have taken into account the sentences imposed on the co-offenders Rutherford and Risati and have identified the following differences from this offender. First, the two co-offenders were charged with a different offence pursuant to s 112(2) of the Crimes Act 1900 which carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years. Both co-offenders had matters taken into account on Forms 1 and both were sentenced on statements of agreed facts which differed from the facts on which the offender is to be sentenced. The sentencing judge found that Rutherford had taken a piece of wood with him to the Tempe premises but did not use it in the offence. Both co-offenders had no knowledge that the offender had armed himself with a machete. The Sentencing Judge found that the plan was to steal from the occupants of the house and each co-offender contemplated the possibility that the occupants could be recklessly wounded in the encounter. Further, the offending took place over a very short period of time with the co-offenders being at the house for only a matter of minutes.

86. The index offence of larceny was held to be towards the lower end of the scale of indictable offences to be considered. The Sentencing Judge found that Rutherford joined in because he was looking for drugs or money for drugs. He otherwise played a very small role in the offence. Whilst he had taken a weapon with him, he did not use it and the violence escalated outside the premises while he was inside. Her Honour held that Rutherford’s involvement in the primary offence was at a materially lower level of seriousness and fell below the mid-range.

87. The Sentencing Judge held that Risati also did not know that the offender was armed with a machete and had no direct involvement in that aspect of the assault. Other than to use wood to break the door he was not armed. Her Honour held that Risati had a lessor role than the offender in that he had taken fewer and less serious criminal actions and she held that his offending fell at or slightly below the mid-range. Her Honour also took the youth of both co-offenders into account and held that notions of retribution and general deterrence should be regarded as subordinate to the need to foster their rehabilitation, relying on DPP (Cth) v MHK (2017) 267 A Crim R 235; [2017] VSCA 157.

88. Her Honour also took into account significant subjective factors in relation to each co-offender. Rutherford had become involved as a young person with recreational drug use and developed a dependency which affected his mental health and ability to work. He has a Major Depressive Disorder for which he had been treated until he was incarcerated in 2022. At the time of the offending he was however using a cocktail of prohibited and prescription drugs. Her Honour held that Rutherford had acknowledged his responsibility for and shown genuine insight into his offending. He also found himself at the crossroad given he has a criminal record which disentitles him from leniency. Her Honour found that Rutherford had positive prospects regarding his rehabilitation with good support in the community which gave him protective factors against reoffending. He was found to be at a low risk of reoffending.

89. The Sentencing Judge found that Risati had a relatively stable and happy upbringing with supportive parents however he had a criminal record that disentitled him from leniency. His offending was aggravated by reason of him being on conditional liberty at the time of the offence. His prospects of rehabilitation were found to be medium to low however her Honour found there were prospects of improvement for his rehabilitation and he had good prosects of employment upon his release to the community. Notwithstanding that his prospects of rehabilitation remained extremely guarded, her Honour went on to find that general deterrence was “questionable” for both co-offenders and made a finding of special circumstances to provide for a longer period of supervision in the community. As set out above Rutherford was sentenced to a term of imprisonment for 2 years and 8 months with a non-parole period of 16 months. Risati was sentenced to a term of imprisonment of 3 years and 3 months with a non-parole period of 20 months.

77. I have had regard to all of the differences between the subjective matters relevant to the offender with those of the co-offenders, the difference in his role and conduct and in particular the fact of his use of the machete and the fact that this offender is charged with a more serious offence with a more severe maximum penalty and standard non-parole period prescribed. I find however, like the co-offenders, there is a diminished significance of both general and specific deterrence in sentencing for the reasons outlined above.

78. I intend to sentence the offender to a term of imprisonment of 4 years and 6 months to commence on 22 August 2022 so as to apply proportionality and totality in sentencing, having regard to the previous sentence imposed on him. I make a finding of special circumstances pursuant to s 44(2) of the CSPA and intend to vary the statutory ratio between head sentence and non-parole period and impose a non-parole period of 2 years and 3 months from 22 August 2022 to 21 November 2024. I further intend to direct that the offender be assessed for admission to the Compulsory Drug Treatment Correctional Centre at Parklea Correctional Centre to serve his non-parole period. The balance of term will be a period of 2 years and 3 months from 22 November 2024 to 21 February 2027. This will allow the offender an extended period under supervision to facilitate his rehabilitation upon his return to the community.

Orders

92. I hereby order as follows:-

1. You are convicted of an offence pursuant to s 112(3) of the Crimes Act 1900 of specially aggravated break and enter and intentionally wound.

2. I sentence you to a non-parole period of 2 years and 3 months to commence on 22 August 2022 and to expire on 21 November 2024.

3. The balance of term will be a period of 2 years and 3 months from 22 November 2024 to 21 February 2027.

4. I recommended that you be assessed for, and serve your sentence at the Compulsory Drug Treatment Correctional Centre at Parklea Correctional Centre.

5. Your parole eligibility date will be 21 November 2024. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

Decision last updated: 13 October 2023