R v Prendergast

[2015] NSWDC 216

District Court

New South Wales

Medium Neutral Citation:	R v Prendergast [2015] NSWDC 216
Hearing dates:	19 June 2015
Date of orders:	19 June 2015
Decision date:	19 June 2015
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Sentenced to imprisonment Non-parole period of five years commencing 19 August 2013 and expiring 18 August 2018 Further period of imprisonment of two years and two months
Catchwords:	SENTENCE – Home invasion at night – Five offenders – Two direct victims, senior citizens – Corporal violence inflicted upon victims – Victims’ house targeted because of its external appearance – Accepted no personal malice involved in selection of residence – Offender asserted unawareness of victims’ being inside – Lights on in hallway, fuse box accessed and electricity disconnected by offenders, offence occurred shortly after midnight on a Saturday morning – Not established beyond reasonable doubt that offender knew persons present in house – Offence in mid-range of objective seriousness – Aggregate sentence – Poor criminal history – 10% discount for plea on morning of trial – Special circumstances found
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Palijan v R [2010] NSWCCA R v Bolter [2002] NSWCCA 435 R v Way (2013) 60 NSWLR 168
Category:	Sentence
Parties:	Regina (Crown) Fitu Prendergast (Offender)
Representation:	Mr Higgins (Crown) Mr Harrison (Off)
File Number(s):	2013/00252061
Publication restriction:	No

Judgment

1. HIS HONOUR: Fitu Prendergast stands for sentence as a consequence of criminal activity in which he was involved on Friday 23 March 2013. As a consequence of the offender’s involvement in that activity he was arrested on 19 August 2013 and has been in custody ever since.

2. The facts of the matter are gravely disturbing. The offender was born on 22 April 1988. At the time he was 24 years old. He is a well-built man of Samoan origin. The victims of the offences in which the offender was involved are Mr Michael Boumelhem, who at the time was 67 years old, and his wife, Elaine, was then 59 years old. Mr and Mrs Boumelhem have seven children. At the time the offences now in question, two of those children were living at home: a son, Chris, who was then 26, and a daughter, Mary, who was then 24. At the time of the offences now in question, Mary was out, I assume, on a social occasion.

3. Mr and Mrs Boumelhem and their two children were living at Ada Street Concord. Their house is a double storey brick residence located on the corner of Ada Street and Melbourne Street. The house is a large one. Upstairs there are five separate bedrooms and on the ground floor there are three lounges, a bathroom, kitchen and laundry. There are two entrances, one from Ada Street and another from Melbourne Street.

4. On the evening of Friday 22 March 2013 both Mr and Mrs Boumelhem were downstairs watching television. Chris was upstairs in his bedroom, either watching television or sleeping, and certainly at a later time, sleeping. At 10pm Mr and Mrs Boumelhem retired to their rooms for the evening.

5. At 12.20am on Saturday 23 March Mrs Boumelhem arose from her bed and walked downstairs in order to use the bathroom and to obtain a drink of water. When she got out of bed she noticed that the house was extremely dark: the usual hallway lights were not turned on. She attempted to switch a light on in the hallway but it would not turn on. It appears that she had thought the globe had blown.

6. At the time that Mrs Boumelhem was attempting to leave her room and go downstairs to the lower bathroom the offender and four other unknown persons were walking towards the front door which is that facing Melbourne Street. As Mrs Boumelhem walked to the bottom of the staircase she noticed some shadows through the glass panels of the front door. She thought it was her daughter, Mary, returning home after her night out. Mrs Boumelhem proceed to the bathroom. She attempted to turn on the light but it did not work. She appears to have thought that there may have been a blackout.

7. One of the offenders smashed the front glass panel of the front door. Mrs Boumelhem heard the sound of the glass smashing. She, again, thought it was her daughter who may have dropped something. Mrs Boumelhem yelled out to her daughter asking her daughter whether she was all right but there was no reply. After smashing the glass panel of the front door the offender and four other unknown persons entered the premises. By that time Mrs Boumelhem had finished in the bathroom and looked out into the foyer. She saw five unknown persons running inside the house. They were dressed in black clothing and all wore black balaclavas. Mrs Boumelhem saw three of the intruders run directly upstairs whilst the other two ran towards the ground floor hallway.

8. Mrs Boumelhem feared for her safety. She locked herself in the bathroom and began to scream. She cried out for her husband and her son and her daughter. She continued screaming. She heard her husband call out her name but did not hear anything after that. Within seconds of her locking herself in her bathroom Mrs Boumelhem heard loud banging noises on the bathroom door. The bathroom door was broken open and she was pushed back into the bathroom with her side striking the washbasin. She was grabbed around the neck by a person unknown to her, a man, and held in a position akin to a headlock. Her mouth was covered by one of the hands of this intruder. The intruder was wearing thin gloves. Thin gloves were found by police when they established a crime scene on the ground near the front entrance door of the house. DNA evidence tells me that on one of the swabs taken from the glove contains the DNA of both the offender and Mrs Boumelhem. The only inference to be drawn is that it was this offender who confronted Mrs Boumelhem and put her into a headlock.

9. Mrs Boumelhem was then dragged out to the hallway where she continued to be held in a headlock and was repeatedly told to shut up. Her mouth continued to be covered by the offender’s hand. A short time later Mrs Boumelhem saw the three offenders who had gone upstairs running back down the stairs. Again she noticed they were wearing black balaclavas. The offender removed his hand from Mrs Boumelhem’s mouth and pushed her against the wall in the hallway causing her to hit the back of her head and her right shoulder against the wall. All the offenders then ran out of the house and away down the street.

10. In the meantime Mr Boumelhem was awoken by his wife’s cries for help, by her screams. He got up and proceeded to walk towards the staircase. About two metres from the top of the staircase Mr Boumelhem was violently assaulted by one or more intruders, causing him to lose consciousness for some time. He had been struck over the head and sustained very severe injuries. It is unknown whether any weapon was involved in the attack on him. When he recovered consciousness, Mr Boumelhem went down the stairs to his wife. She was sitting on the floor of the hallway with her back against the wall, still screaming. Mr Boumelhem obviously did not know what had happened, either to his wife or to him. He said to his wife, “Why are you screaming? There is nothing wrong. All the neighbours will wake up.”

11. It is clear that Mrs Boumelhem must have been hysterical by this stage. She insisted that the police be called. By this stage Chris Boumelhem had been awoken by his mother’s screams for help. He walked down the stairs to the ground floor. His attempt to turn on the lights was also unsuccessful. His mother told him that she thought the power had been cut off. Mr Boumelhem Junior observed that the front door was open and his mother told him that someone had broken in. Mr Boumelhem Junior used his mobile phone to contact the emergency number and request the assistance of the police.

12. A short time after that Mr Boumelhem junior saw that his father’s white singlet was covered in blood. He had blood on one of his arms. He used the light on his mobile phone to illuminate his father. He could see blood coming from his head and down his face. He then used his mobile phone again to request an ambulance. Police and ambulance arrived shortly afterwards.

13. Mr and Mrs Boumelhem were treated ambulance officers and taken by the ambulance to Concord Hospital. Mr Boumelhem’s injuries were so serious that he needed to be transferred to the Royal Prince Alfred Hospital where he was placed in intensive care.

14. At the victims’ home police observed the fuse box had been entered and all the fuses turned off. The police also observed blood drops on the internal side of the timber front door below the smashed glass panel as well as drops of blood on the stairs leading out to the front entrance door and on the outside porch, as well as observing a glove to which I have already referred. The DNA matched that of the offender and hence his arrest.

15. As a result of being pushed against the wall by the offender Elaine Boumelhem suffered bruising and in particular a fracture of her right scapula. She needed to wear her right arm in a sling until she recovered from that fracture. She was placed on pain killing medication. Mr Boumelhem was diagnosed with a fractured skull and bleeding on the brain. He also had multiple fractures including two fractured orbital bones, a fracture of his nasal bone and a fracture of his coccyx. He suffered a ten centimetre laceration to the left forehead which required repair during surgery: 25 stitches were inserted to close the laceration.

16. This is a home invasion by a group of five men dressed in black, disguised in balaclavas, obviously intent on theft.

17. The offender was interviewed by Ms Erin Kirkwood of Community Corrections on 18 June 2015. Under the heading “Attitude to Offending” the following is recorded:

“The Court is advised that Mr Prendergast was somewhat vague in his recollection of the events and required prompting on a number of occasions. Mr Prendergast confirmed that there was a level of premeditation to the offences, advising that the victims’ residence had been targeted. He advised that the residence appeared to be one which was likely to contain a significant amount of money or goods, due to its external appearance. He denied any personal knowledge of the victims and portrayed the offence and selection of residence as ‘random’. The offender advised that he entered the premises after the electricity had been turned off, advising that this occurred as a result of the belief that there was an alarm system installed at the premises. He recalled that he and his co-offenders entered the premises and claimed he was unaware that the victims were home.

He alleged that upon learning that the victims were at home, he attempted to leave the premises. He further claimed that he was not involved in the assault upon either victim at the location.

Despite prompting, the offender experienced difficulty in terms of verbalising the impact of the offences upon the victims. Mr Prendergast failed to express empathy for the victims, aside from stating that he thought they were not home. The offender also failed to verbalise or relate to the likely impact upon the victims and the long lasting effects of his offending upon them. The offender also advised that he is unaware of the severity of the injuries that the victims incurred, until arrested for the offences.”

18. Despite the offender’s assertion that he was not involved in an assault of either victim I am satisfied beyond reasonable doubt that he was the offender who assaulted Mrs Boumelhem. I am also not persuaded that he did not know that they were not at home. It is clear from the agreed facts that lights had been left on in the hallway. It is also clear that there was a belief that an alarm system was installed and that is confirmed by Mr Boumelhem’s victim impact statement. There were lights on that would indicate to anybody that someone was at home. Furthermore, this happened shortly after midnight on a Saturday morning when most residences in this city and in this nation are occupied. I cannot accept the offender did not know there was no one at home. However I do accept there was no personal malice involved in selecting the Boumelhem’s house for this home invasion. Their house was selected because it looked opulent and his victims were thought to be wealthy.

19. What I have just quoted also indicates that the offender at the time he was interviewed by Community Corrections had little insight into his offending behaviour. The victims’ daughter, Mary, read the victim impact statements in open court. I observed closely the offender, who hung his head in shame when they were being read. I hope that he now realises the effect of what he was involved in and the effect it has had on the victims. Mr and Mrs Boumelhem had seven children together and have 14 grandchildren. They were senior citizens in a private residence in a tranquil suburb.

20. The inference to be drawn from this criminal behaviour and similar behaviour which this Court commonly sees is that the other offenders were also probably male and also probably known to each other. They were out to get goods and/or money to sell the goods to obtain further money, perhaps, like Mr Prendergast, to support their illegal drug habits.

21. This case is clearly in the midrange of objective seriousness for an offence contrary to s112(2) of the Crimes Act 1900. The offence carries a maximum penalty of 20 years imprisonment. There is a standard non-parole period of five years. The offender has pleaded guilty to two offences contrary to s112(2) because there were two victims of this home invasion, Mr Michael Boumelhem and his wife Elaine Boumelhem.

22. There are a number of aggravating factors. For the purposes of s112(2) the circumstances of aggravation are set out in s105A(1). They are these:

(a)   the alleged offender is armed with an offensive weapon, or instrument;

(b)   the alleged offender is in the company of another person or persons;

(c)   the alleged offender uses corporal violence on any person;

(d)   the alleged offender intentionally or recklessly inflicts actual bodily harm on any person;

(e)   the alleged offender deprives any person of his or her liberty;

(f)   the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed.

Under subs (3) of the same provision the definitions contained in subs (1) are not mutually exclusive. The circumstance of aggravation pleaded in the indictment is that the offender was in company. I can take other circumstances of aggravation into account as aggravating factors.

23. The first aggravating factor provided by s21A of the Crimes (Sentencing Procedure) Act 1990 is the offender has a previous record for offences of violence. I shall refer to that record later.

24. The next aggravating factor is the fact that not only was the offender in company which is an element of the offence but also because he is in the company not of one other but four others. The nature of this factor was considered in R v Way (2013) 60 NSWLR 168. It was said that the nature and extent of the company and the behaviour of the persons in company with the offender can be taken to account in assessing the objective seriousness of the offence (at [107]). Similarly in Ngati v R [2008] NSWCCA 3 the sentencing judge found it was an aggravating factor that the offender was in company with three other persons as distinct from one. It was an element of this offence that it was committed in company. An aggravating feature was constituted by the number of offenders which exceeded the number necessary to constitute the element of “in company”.

25. Here there was the aggravating factor that the offence was committed in the home of the victims. In Palijan v R [2010] NSWCCA it was held that an offence under s112(2) of the Crimes Act does not require that the premises broken into be the dwelling house of the victim. Here the offender with others broke into the dwelling house of Mr and Mrs Boumelhem. That is an aggravating factor.

26. Another aggravating factor is that provided by par (g) of the subsection which allows me to consider that the injury, emotional harm, loss or damage caused by the offence was substantial. Here the injuries suffered by each of the victims was not only actual bodily harm which need not be anything greater than a scratch or a bruise or an abrasion but was much greater. Mrs Boumelhem suffered a fracture of her scapula, her shoulder blade, and the injuries to Mr Boumelhem were not only extremely serious but life-threatening. It is important to bear in mind what fell from Sully J in R v Bolter [2002] NSWCCA 435. At [11] his Honour said:

“Many people, and especially people who are of comparatively senior years, are affected, and badly affected, by break, enter and steal offences in ways which are not quantifiable in dollars and cents. What ought to be the sanctity and sanctuary of their homes is violated. Their own sense of security, a right it might be noted and not a privilege, is traduced; any sense of confidence that they can be peacefully, going about their lawful affairs without the gratuitous interference of other people is dealt a very severe blow.”

The victim impact statements which have been read certainly speak of not only physical injuries but the emotional harm to which Sully J referred.

27. Pursuant to par (m) of the subsection it is an aggravating factor that the offences were planned. Clearly it was necessary to round up a band of five men, to have them all dress in black, to wear balaclavas, to decide which house to attempt to break into and steal from, to realise that there might be an alarm system and to turn off the electricity in order to commit the offence. These to suggest that this was a pre-planned criminal activity.

28. I also must take into account the non-charged aggravating factors. Corporal violence was used on Mrs Boumelhem and on Mr Boumelhem. It has been submitted that the offender knew that there was a person or persons present in that house and that constituted an aggravating factor. Whilst I do not accept that the offender did not know that there were persons in the house I cannot find beyond reasonable doubt that he did actually know that there were persons in the house although it appears to me to be more probable than not. However the aggravating factors must be proved beyond reasonable doubt.

29. The offender has a poor criminal history. He committed a number of offences on 1 March 2005. He was then almost 15 years old. He committed the offence of affray and two offences of assaulting a police officer in the execution of the officer’s duty. The Children’s Court imposed bonds to be of good behaviour. On 19 August 2009 the offender was sentenced by this Court sitting at Campbelltown for an offence of aggravated robbery with wounding. This Court imposed a three year prison term and fixed a non-parole period of 15 months. On 26 December 2012 the offender assaulted his sister occasioning actual bodily harm to her. He was sentenced on 30 July 2013 by the Local Court at Campbelltown to an intensive correction order for a period of 12 months. The offender has a number of other offences, relatively minor: destroying or damaging property, obtaining money by deception and driving whilst suspended. For those offences he was fined. The offender clearly has a history of criminal violence. Indeed he has committed acts of violence whilst in custody. During his second period of imprisonment he committed offences of intimidation and fighting. During his most recent period of incarceration he committed a fight or other combat offence on 31 May 2014 and assaults on 23 September 2014.

30. I turn to the other matters which I must consider, the personal circumstances of the offender. Mr Prendergast is Samoan. He cannot remember his last contact with his father. He came to Australia with his mother and siblings when he was nine years old. He and his family obtained Australian citizenship in about 2006. He completed year 12 and attempted a number of TAFE courses. He did obtain a certificate in construction. Such work as he had done is essentially general labouring work but he has not been consistently employed.

27. The offender appears to have a problem with alcohol and he was under the influence of alcohol at the time he assaulted his sister. He has been using methylamphetamine since 2012 and had been using at the time of this offence. It is clear that the offender was motivated to commit crimes because of a need to obtain money or goods to support his drug habit and, because of unemployment at various times, to obtain money. Community Corrections tell me that the offender needs referral for drug and alcohol related interventions, anger management, violence management and needs to improve his educational skills and his ability to obtain employment.

28. The offender told Ms Kirkwood that he also had a number of pre-existing injuries to his shoulder, wrist and knees as a result of his recreational sporting activities. Being Samoan it could be well be rugby or rugby league.

29. These are very serious offences. Parliament has prescribed a 20 year maximum penalty. I note with some trepidation that it appears from statistics kept by the Judicial Commission since October 2007 that the highest sentence imposed for an offence contrary to s 112(2) is six years imprisonment. However here there are two offences. They cannot be dealt with wholly concurrently because there are two different victims. The injuries sustained by Mr Boumelhem are particularly severe. The psychie damage to both Mr and Mrs Boumelhem is well within the range of what one would expect of crimes of this nature for which our community cries out for protection from the Courts, as it does from the police.

30. This is a matter which in my view warrants the imposition of an aggregate sentence. I have come to the view that I should start the sentencing exercise with a sentence of eight years imprisonment. That is to be reduced by 10% because of the accused’s plea of guilty on the morning of his trial. The discount for the plea of guilty is for its utilitarian value. The evidence against the offender was strong, but at least he saved Mr and Mrs Boumelhem the trauma of having to relive their experiences by giving evidence from the witness box in front of a jury.

31. It also has the utilitarian value of, for example, repeated trials should it be necessary for one reason or another to discharge a jury and start the trial again.I round 9.6 months off to 10 months. That leaves me with 86 months or seven years and two months.

32. The non-parole period prescribed by Parliament would result in a non-parole period of 64 and a half months, which I round off to be 64 months, which is five years and four months. There are a few reasons but not particularly cogent ones to warrant the breaking of the statutory ratio between the head sentence and the non-parole period. I have come to the view that I should impose a non-parole period of five years. The special circumstances are that the offender, who is now 27 years, will not be eligible for release for parole until 19 August 2018 which is a further period of incarceration of three years. By that time he will have gained greater maturity and perhaps got out the habit of stimulant use. He has to have something in order to encourage him to re-enter the community as a law abiding man, prepared to work to support himself and to look, for example, for a girlfriend or wife, to settle down and have a family if that is what he is motivated to do. That is it might help towards his rehabilitation: whilst things do not look good at this stage in that regard, time may cause the picture to change.

33. I should indicate and do indicate that had I dealt with each offence separately, I would have imposed a head sentence of five years and ten months in each case, starting with a head sentence of six years and six months and reducing that by 10% which I would round up to eight months, reducing it to five years and ten months.

34. Everything all right with you Mr Harrison?

HARRISON: Yes thank you your Honour.

HIS HONOUR: The term commencing on 19 August 13, the non-parole period, will expire on 18 August 2018, is that right?

HIGGINS: Correct your Honour.

HARRISON: Yes your Honour.

HIS HONOUR: The balance of the term is two years and two months. When does that finish, 18 October 2020?

HIGGINS: Yes your Honour.

HARRISON: Yes.

39. Fitu Prendergast, on the charge that on 23 March 2013 at Concord in this State you did break and enter into the dwelling house of Michael and Elaine Boumelhem situated at 11 Ada Street and commit a serious indictable offence, therein namely occasion actual bodily harm to Michael Boumelhem in circumstances of aggravation, namely that you were in company with persons unknown, you are convicted.

40. On the charge that on 23 March 2013 at Concord in this State you did break and enter into the dwelling house of Michael and Elaine Boumelhem situated at 11 Ada Street and commit a serious indictable offence, therein namely occasion actual bodily harm to Elaine Boumelhem in circumstances of aggravation, namely that you were in company of persons unknown, you are convicted.

41. I sentence you to imprisonment. I set a non-parole period of five years commencing on 19 August 2013 and expiring on 18 August 2018. I impose a further period of imprisonment of two years and two months to commence upon the expiration of the non-parole period and expiring on 18 October 2020. The total sentence is therefore seven years and two months comprising the non-parole period, the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period.

42. Any other orders sought?

HIGGINS: No your Honour.

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Decision last updated: 25 September 2015