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…