R v Polkinghorne

[2021] NSWDC 155

District Court

New South Wales

Medium Neutral Citation:

R v Polkinghorne [2021] NSWDC 155

Hearing dates:

12/3/21

Date of orders:

12/3/21

Decision date:

12 March 2021

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 5 years 9 months with a NPP of 3 years 6 months (8/1/20-7/7/23). I find special circumstances.

The indicative sentences are:

Seq 1 – 2 years 3 months

Seq 2 – 2 years 10 months

Seq 4 – 3 years (Form 1 taken into account).

Seq 6 – 2 years 9 months.

Seq 8 – 2 years 10 months.

I find that the offender is an “eligible convicted offender” and I refer the offender to the Drug Court for consideration as to whether he is eligible and suitable for the making of a Compulsory Drug Treatment Order.

I direct that a copy of report of Dr Furst dated 27/2/21 be provided to the Drug Court, Corrective Services, and Justice Health.

Catchwords:

Crime – Sentence – Break enter and steal

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Ponfield v R [1999] 38 NSWLR 327

Category:

Sentence

Parties:

NSW DPP – Crown
Craig Adam Polkinghorne - Offender

Representation:

Mr Pace for Crown
Mr Roff for Offender

File Number(s):

2020/6188

Publication restriction:

None

sentence

1. Mr Craig Polkinghorne is for sentence today in relation to five offences, with an additional five offences to be taken into account on a Form 1 document. The five offences for which he faces sentence are each offences under s 112(1)(a) of the Crimes Act, namely offences of break, enter and steal. The maximum penalty in each case for those offences is 14 years imprisonment. The maximum penalty, of course, is a guidepost to the sentencing exercise to which I have had regard. He pleaded guilty at the earliest opportunity and, therefore, I intend to allow a 25% discount on account of that plea because of its utilitarian value.

FACTS

2. A set of agreed facts has been placed before the Court which in essence is as follows.

3. Firstly, dealing with the sequence 1 offence, which is an offence of break, enter and steal on 20 May 2019. On the afternoon of 29 May 2019 the owner of Mullanes Pharmacy at Baulkham Hills locked up the premises after placing the daily takings and various Schedule 8 drugs into a safe and locking it. However, numerous Schedule 8 drugs which were expired by means of their dates had been placed next to the safe in preparation for their disposal and also a cash float of $650 had been left in the cash register.

4. At 2.57am on the morning of Monday, 20 May, Mr Mullane became aware that a sensor in the pharmacy had been activated, which at that stage he assumed was a malfunction. However, upon attending the pharmacy around 8.30 the next morning he saw shoe prints on the floor behind the counter and noticed that a hole had been cut through the ceiling of the storeroom. The $650 cash and the expired Schedule 8 drugs had been stolen. Those drugs included a large range of drugs set out in the agreed facts, but included Valium, Oxycontin, Codeine, Endone, Morphine and other substances.

5. An inspection of the roof of the shopping centre revealed that there were three areas where sheet metal roofing had been cut open and bent back to allow access into the ceiling cavity. It is an agreed fact that the offender was the person responsible for breaking into the premises and stealing the items I have described.

6. That brings me to the next offence which is the sequence 2 break, enter and steal offence committed on 2 June 2019. That offence relates to the Proud’s Jewellery Store at Stockland Mall, Baulkham Hills. Those premises had been locked and secured at the end of business on Saturday, 1 June, by a sales supervisor, whose name was Ms Miller-Argue. However, at about 12.40am the next morning CCTV footage showed that the offender entered the storeroom of the premises through the ceiling wearing dark clothes. Once inside he smashed glass cabinets and display units with some kind of tool and placed various items of jewellery into a white bag. After about five minutes in the store he broke open a door into an office area before setting up a ladder and climbing back through the hole in the ceiling. When staff arrived at the store the next morning they found the floor covered in glass, and pieces of jewellery, including gold chains, bracelets, pendants and rings missing from the display units. The claimed total retail value of the items stolen was $80,499. In addition, extensive repairs were required to be carried out to the store to repair damage caused by the break-in. A “Rhino-Rack” tie down strap which apparently had been used by the offender when he entered through the ceiling was later found to contain his DNA.

7. The third offence in time is the sequence 3 offence which I must take into account on a Form 1 document and which occurred on 5 July 2019. This offence involved the same Proud’s Jewellers Store at Stockland Mall Baulkham Hills. On Thursday, 4 July 2019, stock supervisor, Ms Miller-Argue, was again working at that store. By that time the damage caused to the office door and the hole in the roof from the burglary of 2 June 2019 had been repaired. At the end of the day on Thursday, 4 July 2019 the supervisor closed up the store, placing the takings and some other items into a safe and activating the alarm system. However, at about 2.19am the next morning CCTV showed light and shadows on the office floor which continued until the offender was seen to enter the store through the ceiling of the office. At the time he was wearing dark clothes and he then gained access to cabinets and drawers behind the counter and placed jewellery items into a black bag. After about three minutes he exited by standing on a cabinet and making his escape through the same hole in the ceiling.

8. Later that morning, the stock supervisor of the store was made aware that the store again had been broken into and when she attended the store she found smashed glass scattered across the showroom floor and cabinets and display units, which had been rummaged through and from which various jewellery items were missing. She also found another large hole in the ceiling which had been made in the same position as the previous robbery. An inspection of the roof of the shopping centre again noted that a section of metal roofing had been removed. The claimed retail value of items stolen on this occasion was $68,952.

9. The next offence is the sequence 4 break, enter and steal offence of 4 August 2019, which occurred at the Alexander Jeweller’s Store in North Rocks. The owner of that store was a Mr Sobbi. The store is located next to a menswear store named “Euro Designs for Men”. The jewellery store was fitted motion sensors and also a back to base alarm. The owner also had the ability to review a live feed of CCTV footage from inside the store by using his mobile telephone. The owner had closed up the store about 5.30pm on Saturday 3 August locking away certain items and activating the alarm. However, at about 3.44am the next morning he was alerted to the fact that motion sensors inside the store had been activated and the alarm set off. When he accessed the application on his telephone he saw a person, being the offender, wearing dark clothing moving around in the store, smashing cabinets and display units and placing various items into a bag.

10. The owner contacted police who attended later that morning and when the owner arrived at the store he let police in and it was noticed that the cabinets and display units had been smashed and that various items of jewellery had been taken from almost every cabinet. The office area had also been ransacked with items strewn everywhere. It was also noted that there was a hole in the common wall between the jewellery store and the menswear store, which I have earlier described. The claimed retail value of the stolen goods from the jewellery store was approximately $250,000 and the cost to repair damage was about $80,000. Following this offence the owner arranged for the roof cavity of the store to be fitted with steel reinforcement at an additional cost of about $30,000. It is this sequence 4 offence to which there is attached the Form 1 document and in sentencing Mr Polkinghorne for the sequence 4 offence I will, as I have said, take into account the five matters on that Form 1 document.

11. The next offence is, in fact, one of those on the Form 1 document and is the sequence 5 offence which was also committed on 4 August 2019, the same night as the offence I have just described. That offence involved the Euro Designs for Men clothing store which adjoined Alexanders Jewellery Store in the shopping complex. On Saturday, 3 August 2019, the owner of that clothing store when closing up had left approximately $150 in the cash register. However, at about 5.30am the next morning he was alerted to the fact that the store had been broken into. Upon entering the store he observed that his ladder was in the middle of the showroom underneath an access hatch in the ceiling. He noticed that a hole had been cut in the wall to allow access between his store and the Alexander Jewellery Store next door. Pieces of wall were found to be strewn across the floor along with various other items including spray bottles, cleaning products, cleaning wipes and two knives. There was also missing from the store the $150 cash that was in the cash register as well as a Bluetooth speaker valued at about $227, and a leather bag valued at about $399. Inspection of the roof by the police detected a hole that had been created in the sheet metal.

12. That brings me to the next offence which is the sequence 6 break, enter and steal offence of 7 November 2019. That offence involved the Ritz Jewellers Shop at Norwest Marketown Shopping Centre. At the close of business on 6 November 2019 the owners of that store had closed up as usual and left it secured. However, at about 4.00am the next morning they were alerted by a security company to multiple alarms and sensors having been triggered inside the shop. The owner then accessed an application on his phone and was able to observe the offender smashing displays inside the store and stealing various items of jewellery. The owner drove to the premises, as did police, and found glass cabinets and display units in the showroom which had been smashed and many items of jewellery to have been stolen. There was also significant damage done to the keypad which operated a safe inside the shop. Paperwork and jewellery displays had been strewn around the room and a large hole had been cut in the corner of the ceiling and roof. The office had also been rummaged through. On the roof police observed that the metal roofing had been cut and torn back to create an access point into the roof cavity. Police also found what is described as a rope, consisting of multiple ropes tied together, which had apparently been used by the offender to lower himself into the premises. The total claimed retail value of the goods stolen was about $170,000 and repair costs estimated as being around $38,000.

13. That then brings me to the sequence 7 offence, which is one of those on the Form 1 document, and involves a break, enter and steal on 23 November 2019. That offence involved the Mimosa Barber Shop within the Winston Hills Shopping Centre. On 22 November 2019 the owner had closed up the store by locking it and leaving a float of about $200 in the cash register, but when he returned the next morning at about 6.00 o’clock he found various items scattered on the floor and that the cash register had been opened and the $200 stolen from it. He also found a small tool next to the cash register which had not been there when he locked up. A large hole had been cut in the roof of the storage room which provided access to the roof cavity above the store. A number of items on storage shelves had been knocked to the ground. When police attended they noticed that a hole had been made in the external metal roofing to allow access to the roofing cavity.

14. The next offence is the sequence 8 offence involving a break, enter and steal on 12 December 2019. That offence was at the Diamond Hill Jewellery shop at Winston Hills Shopping Centre, which is actually opposite the Mimosa Barber Shop to which I have just referred. The owner of the jewellery had been warned in the wake of a break-in at the shopping centre earlier in November to take extra security measures, if possible. On Wednesday, 11 December 2019 an employee locked up the jewellery store at about 5.30pm placing significant valuables and daily takings into a safe and then activating an alarm. However, at about 3.45am the next morning the owner was contacted by a security company advising him that various sensors had gone off in his store. He then used an application on his mobile phone to view CCTV footage at which time, although he saw damage inside the store, he could not see the offender. When he and his wife arrived shortly after they found various display cabinets and counters had been broken into with glass scattered throughout the store and drawers broken and rummaged through. Also, a hole had been cut in the ceiling behind the office doorway. The claimed retail value of the items stolen was about $250,000 and repairs for damage were to the extent of about $10,000. After reviewing CCTV the owner observed that the offender had, in fact, used a rope to descend from the ceiling before ransacking the shop. On the roof police observed an area of metal roofing which had been cut and peeled back so as to allow access to the roof cavity.

15. The next offence, which is an offence described in sequence 9, is one of those that is on the Form 1 document, and which was committed during the period 24 to 27 December 2019. It involved the Mullanes Pharmacy Store at Baulkham Hills, to which I have previously referred.

16. On Christmas Eve 2019 Mr Mullane, the owner of that pharmacy, closed up the pharmacy at about a quarter to six that night leaving a float of about $880 cash and placed other monies as well as various drugs into a safe which he secured. Between 25 and 28 December 2019 a number of communications were recorded on the offender’s mobile phone, which were obviously discovered after his later arrest. In those, the offender communicated with another person in terms indicating his intention to steal various prescription drug-like items from that chemist. There was also discussion about the disposal of drugs and comments by the offender about attempts to obtain drugs through break-ins at the chemist. As this was the holiday period, the pharmacy remained closed and unattended until about 8.00am on Friday, 27 December when the owner returned to the store. Upon entering he saw that the cash register had been opened, that the $880 cash had been taken, and that the office had been rummaged through with shelving pushed over, empty medication packets and crushed tablets strewn on the floor, and that another large hole had been made in the same location as with the previous break-in. Mr Mullane also noticed markings around the hinge area of the safe door and that the door had been slightly prized open. This observation coincides with one of the messages on the offender’s telephone in which he referred to being unsuccessful in removing a safe door.

17. After conducting an inventory check Mr Mullane noted that a number of Schedule 8 medications had been stolen including 12 packets of Tarjin, two packets of Palexia, two packets of Suboxone and five packets of Antenex.

18. The final offence described in the agreed facts is the sequence 10 offence, which is also to be dealt with on a Form 1 and is an offence of breaking and entering with intent to steal committed on 6 January 2020. This offence involved a breaking and entering with the intention of stealing from the Alexander Jewellery Store at the Norwest Marketplace on 6 January 2020. The agreed facts set out a degree of activity found on the offender’s mobile phone which records his communications with another person in which he discussed his unsuccessful attempts, apparently after breaking in through the roof, but then encountering some form of metal barrier. Testing of a Rhino-Rack brand strap found at the Norwest Marketplace Shopping Centre detected the offender’s DNA.

19. Those are the facts of the offences, in summary form. The facts, however, go onto explain that on 8 January 2020 police executed a search warrant at the offender’s address in Baulkham Hills and when spoken to the offender told police, “I can’t believe how long it took you to catch up with me. Same MO in every one of them. I don’t have none of it left. It is all gone up the hole in my arm.” When police told the offender they would be doing a search of the house he frankly said to them, “Yeah, what’s left of the jewellery is all upstairs in a bedroom and my gear is under the stairs.”

20. The search warrant was then executed and a number of items of relevance were found, including a number of jewellery boxes containing various items of jewellery, assorted rings, pendants and charms, a plastic bag containing three watches and in total, hundreds of individual items of jewellery, which were retrieved by police during the investigation.

21. Also found at the premises were a number of prescription medications, a black cap with LED lighting attached, a bag containing straps and various tools, as well as a cap, a number of torches, and a length of climbing rope. The offender was arrested and returned to Castle Hill Police Station where he voluntarily entered into an interview with police and made, essentially, full admissions.

22. The facts set out a selection of some of those admissions but I do not intend to recite all of them, suffice to say that in relation to the sequence 1 offence, at the Mullanes Pharmacy, he admitted stealing from those premises and said that he had been using painkillers for a work-related injury in May 2019, which were not giving him enough relief and that is why he went looking for painkillers at the pharmacy.

23. In relation to the cash and pharmaceuticals stolen from those premises, he said that went to supporting his drug habit, which he said cost him about $1,400 per week. In relation to the sequence 2 offence, being the break-in at Proud’s Jewellery, he said that he had gone after the heavyweight gold from near the registers in the store because that is where the jewellery stores generally keep their most expensive items and that he took gold because it is effectively liquid cash, which can be melted down and easily sold.

24. In relation to the sequence 3 offence, on the Form 1 document which also involved a Proud’s Jewellery Store, he agreed that he had broken into those premises again. He told police that he had made about $15,000 from the first break-in and about two to three thousand from the second break-in and that he had used that money to fund his addiction and also to help his partner, who he described as “baby mumma”.

25. In relation to the sequence 4 offence, involving Alexander Jewellery Store, he admitted that he took what he could from that store and that the gold, as he understood it, had been melted down and that he had got about $50,000 in cash from that theft and that he also agreed that he had taken some cash from the menswear store next door.

26. In relation to the sequence 6 offence at the Ritz Jewellery Store, he again made full admissions to entering the store through the ceiling, although he said that the store mostly had sterling silver which was not worth as much.

27. In relation to the sequence 7 offence, committed at the Mimosa Barber Shop, again made full admissions in relation to that.

28. In relation to the sequence 8 Diamond Hill Jewellery Store break-in, he again admitted to that offence, although stated that there was largely sterling silver items there, which was not worth much.

29. In relation to the sequence 9 offence, again involving the successful break-in at the Mullanes Pharmacy, but unsuccessful attempt to break into the safe, he agreed that he had returned there and tried to open the safe but could not get it open.

2. In relation to the final offence, that being the sequence 10 Alexander Jewellery offence, he again made admissions but said he was unable to get through some steel mesh that apparently had been installed in the ceiling above the premises.

3. Following his arrest, police made inquiries with a number of pawn brokers in the Parramatta, Granville and Merrylands areas and were successful in recovering some of the items that had been stolen.

OBJECTIVE SERIOUSNESS

32. In sentencing the offender, I have an obligation of course to make an assessment of the objective seriousness of his offences. There is no doubt that the offences before the Court must be regarded as serious. That much is acknowledged firstly by the maximum penalty that applies and to which I have already referred. But, in addition, the courts have said for many years that offences involving breaking and entering premises and stealing property are of significant concern and must attract significant penalties.

33. People, as well as businesses, have the right to expect that their premises will not be broken into and vandalised and their property stolen. Offences like these not only involve an invasion and loss of property, but they lead to the disruption of business activity and, in some cases, to a personal sense of violation of the day to day working surroundings of the people who own or work in such premises.

34. Offences of this kind also lead to increased costs in insurance and security and have led to the proliferation of alarm systems, closed-circuit television cameras and the use of security guards. It is for these and other reasons that deterrence, both general and personal, are important considerations in sentencing.

35. In assessing the objective seriousness of these particular offences however, I must have regard to what this particular offender did, in carrying out the offences. In that regard, it appears that he acted, essentially, on his own, although clearly with some degree of expertise. The offences clearly involved a significant amount of planning. Firstly, by selecting the premises and then, in assessing means of entry, assessing what tools would be required and then in carrying out the entry to the premises and in escaping in a manner and within a timeframe so as to avoid arrest. In this regard, each of the five offences for which the offender is to be sentenced were executed successfully and in a manner which demonstrates a significant degree of skill.

36. In approaching the question of objective seriousness, I have had regard to the matters discussed in Ponfield v R [1999] 38 NSWLR 327, although I note that most of the objective matters referred to in that case are now contained in s 21A of the Crimes (Sentencing Procedure) Act 1999. The sequence 1 offence at the Baulkham Hills Pharmacy, involved the theft of $650 and a significant quantity of Schedule 8 drugs. It also involved some damage to the property. In my view the objective seriousness lies towards the lower range.

37. The sequence 2 offence committed at Proud’s Jewellers at Baulkham Hills, involved a theft of about $80,000 retail value of jewellery. The offence also involved significant damage being done both to the roof and ceiling of the premises, as well as to glass cabinets and other storage units inside the premises. Although the method of entry involved some sophistication, the execution of the offence was somewhat clumsy in that the offender left behind, an item which contained his DNA. In my view, the objective seriousness of this offence, sits just below the midrange.

38. The sequence 4 offence which was committed at Alexander Jewellers at North Rocks involved a theft of items, said to have a retail value of about $250,000. In addition, repair costs for the damage done were approximately $80,000 and the offence led apparently also to the owner spending about another $30,000 on increased security. While this last mentioned cost does not, in my view, increase the objective seriousness, it provides an example of the costs associated with this kind of offending. The offence was also one where the owner was able to observe aspects of the offence, while it was being committed, including the smashing of cabinets and display units, which no doubt would have been a somewhat disturbing experience. In my view, this offence sits within the midrange of objective seriousness. In sentencing for this offence, I am also required to take into account the five matters on the Form 1, although that of course, does not increase the objective seriousness of the sequence 4 offence.

39. The sequence 6 offence which occurred at the Ritz Jewellers at Norwest, involved a theft of goods to a claim to retail value of $170,000 and about $38,000 in repairs for damage done. This was also an offence where the owners of the business were able to watch the offender smashing items and stealing property while it was occurring which, as I have already observed, may have been I expect, a somewhat disturbing experience. In my view, the objective seriousness for this offence also sits within about the midrange.

40. The sequence 8 offence committed at Diamond Hill Jewellers involved a similar modus operandi and the theft involved about $250,000 retail value of jewellery and damage to the amount of $10,000. I assess this matter also as being within about the midrange of objective seriousness.

41. In determining the objective seriousness of the above offences, I have taken into account that in each case, significant damage was occasioned and that the loss involved in each of the jewellery shop invasions was substantial. In each of the five offences, there was also a significant element of ransacking, to which I have also had regard.

42. In assessing objective seriousness, I have taken into account the nature of the serious indictable offence that was committed, namely stealing, which is one of the less serious forms of indictable offence, to which s 112(1)(a) applies. In assessing the objective seriousness, I have also taken into account that each of the offences was committed during the night and at a time when there was little or no likelihood of any physical confrontation with the occupiers or staff of the premises, which, had it happened, might otherwise have been an aggravating factor.

43. As the Crown submitted, in determining the ultimate sentence, I must take into account that the offences represented a course of conduct and not momentary lapses in otherwise law-abiding behaviour. I must also take into account that these are certainly not the offender’s first offences of this kind, a matter which in my view, disentitles him to the sort of leniency that might apply had that not been the case.

SUBJECTIVE MATTERS

44. I turn then to Mr Polkinghorne’s subjective features. He is now 44 years of age. His criminal history dates back to his late teens in Western Australia where, among other sentences, he served a period of full-time imprisonment for armed robbery. After moving to New South Wales, he was 20 years of age when he was sentenced to imprisonment for robbery in company and stealing. Since then he has been before the courts for sentence on a number of theft-related and drug-related offences, as well as some offences involving violence.

45. He has been in custody since his arrest on the present matters on 8 January 2020 and he has previously served full-time custody in this State, on around about five occasions.

46. A Sentencing Assessment Report has been placed before the Court, which assesses the offender as being a medium-high risk of re-offending. However, the report does provide some positive indicators with respect to his prospects of rehabilitation.

47. Firstly, it notes that the offender showed some insight, in the sense that although he had not considered the impact of his offences at the time, he now realises the loss and harm that his actions would have caused. Secondly, the report notes that records show a history of clean urinalysis in custody and no record of offences whilst in custody. Thirdly, it notes that he has taken positive steps in custody, by completing a number of programs aimed at developing skills to avoid relapsing to drug use and re-offending. Furthermore, it notes that he has, at his own request, continued to participate in programs assisting facilitators and acting as a mentor to other participants in gaol.

48. His progress is noted most clearly in the report of the Corrective Services facilitator, Mr Thompson, who says that the offender’s participation in the program has been consistent, and he has contributed to each group by sharing his personal insights and the ways that he could have acted in a more reasonable manner.

49. It notes that he has taken risks by sharing some of his personal history with the group as a way of providing support to younger offenders in the program, who have perhaps as yet not recognised the impact of their behaviours. The report notes that the offender has been able to recognise and identify the role that addiction has played in his criminal behaviour and has explored his triggers to relapse. He has also shown positive motivation towards pro-social change.

50. The report notes that his thinking has apparently moved onwards, towards acknowledging that positive change is a possibility for him, as he is becoming a productive member of the community. Overall, the report is a very, very positive one.

51. The Court has also been provided with the psychiatric report of Dr Richard Furst. The offender, according to the history given to Dr Furst, grew up in Western Australia but lost his mother to cancer when he was only 12. His father was, at one stage, an alcoholic but then became a Jehovah’s Witness which in itself involved some fairly significant restrictions on the offender’s childhood. He eventually ran away from home while still fairly young. Subsequently, according to the history given to Dr Furst, which was affirmed by the offender in his evidence today, the offender commenced using alcohol, cannabis and amphetamines and it was this that led to his first full-time gaol sentence in Western Australia.

52. Dr Furst concluded that while the offender does not have any psychiatric illnesses, he does meet the criteria for substance use disorder, gambling disorder and chronic pain disorder. He concludes that while the offender is currently abstinent from drugs, he does remain susceptible to relapse. As described by Dr Furst, the offender has a history as a skilled stone mason and has generally a good work history when he is in the community. That is, when he is not in custody.

53. The offender also, apparently, was involved in a serious motor accident in about January 2001, which left him with multiple facial fractures which required significant surgery and which apparently led to his developing a significant dependence on prescription drugs such as Oxycontin. The offender has been involved in a long-term relationship with the mother of his two children since about 2004, although that is a relationship which has suffered some interruptions at times.

54. He has two daughters to that relationship who are now aged 11 and 13 and who reside with their mother in Sydney. Although the offender’s partner entered another relationship somewhere between 2013 and 2016 while the offender was in custody in Western Australia, the offender and his partner have in more recent times reunited and the offender has expressed to Dr Furst, as he did to me today, an intention and a desire to resume life with his partner and daughters once he is released.

55. In relation to his current offending Dr Furst suggests some link between this and the injuries which the offender suffered to his knee in a work-related incident in October 2018. This, as reported by the offender, led to him again abusing drugs such as oxycontin and also heroin. Dr Furst went on his report to explain that the use of drugs like oxycontin has become a rapidly escalating problem in Australia, the United States and other western countries in recent years and has indeed led to a very significant death toll from overdose. The offender told Dr Furst that the break and enter at the pharmacy in Baulkham Hills was with the object of obtaining schedule 8 analgesic drugs but that after that things “got messy” and he started targeting jewellery stores with the aim of stealing gold to fund his drug use and gambling problem. The offender did however acknowledge to Dr Furst that his actions were wrong and that he felt bad about it and that he takes responsibility. Dr Furst ultimately expressed the view that the offender had accepted responsibility for his offending and that he has good prospects of engaging in future treatment programs and appears to have good prospects of being successfully rehabilitated, notwithstanding that he does have a future risk of relapsing back to drugs.

56. The Court has also been provided with a letter from the offender’s partner who confirms her continuing support and the support of their children for the offender and who attests to the solid changes he has made since being in custody on this occasion. A letter has also been provided to the Court by the director of a stone masonry firm who confirms that the offender had previously been engaged as a sub-contractor between about 2007 and March 2019 with that firm. The letter describes the offender’s work as a stone mason as being very impressive and describes him as one of the best sub-contractors they had ever used or encountered. The author explains that the offender’s services were terminated in March 2019 due to his drug problems at that time. It goes on however to state considerable concern about the offender’s current circumstances and says that the firm would consider re-engaging his services again if the offender is able to make a determined commitment to recovery and rehabilitation.

57. The offender has also provided to the Court a letter which in my view demonstrates considerable insight, consistent with the comments that have been made about the offender by those who have encountered him in custody on this occasion. In that letter he expresses embarrassment and shame for his actions and says that this is “not because I was caught but because at the age of 44 I should be aware of and able to manage how I deal with the physical, financial and emotional trials that come my way”. The offender’s letter explains his concern about how far he has fallen and the hate that he began to feel about himself prior to his arrest. He explains in his letter that he has tried to show his drive to avoid relapse and expresses gratitude for having had the opportunity to have participated in the pilot program available to persons on remand at the John Morony Correctional Centre.

58. As I have noted he also gave evidence and was cross-examined in court today in which he confirmed the contents of the psychiatric report and expressed what I consider to be genuine remorse. He has also in his evidence today in my view demonstrated considerable insight into the manner in which he might more appropriately deal with challenges in the future and in particular to quote him he said, “Often you cannot change the things around you, you have to change the way you react to things”. He explained that this is one of the lessons he has learnt from the programs he has engaged himself in since being in custody. He has also in his evidence expressed a degree of realistic insight by stating that he thinks he would need at least another 20 months of treatment which he is prepared to accept would be occurring whilst in custody, so as to cement the steps he has taken to date.

59. In my view, without going through the totality of his evidence, he impressed as somebody who has made very significant steps towards rehabilitation whilst being in custody on this occasion. He impresses also as a person who has considerable skills both in expressing himself and, as I have already indicated, he is somebody with considerable skills of a physical kind which he has demonstrated through his prior work as a stone mason.

60. This is a case therefore where I accept that genuine remorse has been demonstrated, and demonstrated not only by the offender’s frank admissions to police upon his arrest but, as I have noted, more importantly by his actions since being taken into custody and by the very significant progress demonstrated by the materials placed before the Court.

61. The offender’s prospects of rehabilitation, however, are not easy to predict. The Sentencing Assessment Report includes a medium-high risk of offending, as does his history of past serious offences and his problems with drug addiction. On the other hand there are the positive factors of reasonably good work prospects and a supportive partner. There is also the fact that the offender has, in my opinion, done everything within his power over the past 12 or so months to better himself and deal with his drug and other problems. In my opinion his prospects of rehabilitation are tied closely to whether the offender can maintain his abstinence from drugs which will be tested fully once he is released to parole. At this stage I consider his prospects to be guarded but reasonable.

62. I am satisfied that the s 5 threshold in the Crimes (Sentencing Procedure) Act 1999 has been passed in relation to each of the five offences for which he must be sentenced and no submission to the contrary was made.

TOTALITY/ACCUMULATION

63. In determining the appropriate sentence I have had regard to the purpose of sentencing set out in s 3A of that same Act. I have also had regard, given that I must sentence for five offences, to the principle of totality, that is the importance that, in setting a sentence for each of the five offences, I then examine as part of the total sentencing exercise and form a conclusion as to what overall sentence should be imposed. In doing so as required by the principle of totality, I must have regard to the importance of not only imposing adequate punishment but avoiding the imposition of a sentence which might be regarded as overwhelming or crushing. I also need to have regard, as I have, to the extent to which there should be any accumulation of the various sentences. In this regard I accept that there does need to be some accumulation given that each of the offences involve a discrete criminal act.

DETERMINATION

64. I intend to impose an aggregate sentence. Given that intention I must nominate what are known as indicative sentences. Mr Polkinghorne the sentences that I am about to refer to are what are called indicative sentences, they are not the sentence that I will actually impose. I am required however to nominate these and then to announce the actual aggregate sentence. I record the fact that the aggregate sentence will represent only a percentage of the accumulated total of the various indicative sentences by reason of my taking into account principles of totality.

65. The indicative sentences are these: for the sequence 1 offence at the Mullane Pharmacy, and each of these are after the 25% discount, two years three months imprisonment. For the sequence 2 offence, two years 10 months. For the sequence 4 offence and taking into account the matters on the Form 1, three years imprisonment. For the sequence 6 offence, two years nine months and for the sequence 8 offence two years 10 months.

66. I intend to make an allowance by means of a finding of special circumstances based essentially on the importance, given the significant steps the offender has taken towards rehabilitation, that there be a lengthy period of supervision on parole.

67. The aggregate head sentence is five years, nine months. The non-parole period is three years, six months. Each of those will date from 8 January 2020. The head sentence, therefore, will expire on 7 October 2025 and the non-parole period on 7 July 2023.

68. I intend, given the sentence that I have imposed, to refer the offender to the Compulsory Drug Treatment Program, or at least for consideration of entry to that program. In that regard, I am satisfied that he has been sentenced to a term of full-time imprisonment, the unexpired non-parole period of which is at least 18 months and the total sentence is not more than six years. I am satisfied that he is an eligible convicted offender, that his usual place of residence is within the broader Sydney region, that he has a long term dependency on the use of prohibited drugs, that the facts of the offences for which he has been sentenced together with his general background indicate that the offences are related to his long term drug dependency associated lifestyle.

64. I therefore refer him to the Drug Court for Compulsory Drug Treatment Correctional Centre consideration.

65. I also direct that a copy of the report of Dr Richard Furst, dated 27 February 2021, be referred to the Drug Court and also to Corrective Services and to Justice Health.

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Decision last updated: 04 May 2021