R v Raymond William Oxby

[2018] NSWDC 272

District Court

New South Wales

Medium Neutral Citation:	R v Raymond William Oxby [2018] NSWDC 272
Hearing dates:	12 July 2018
Decision date:	26 September 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [44]
Catchwords:	Break and enter dwelling house commit serious indictable offence, multiple offences, serial offender; aggregate sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug (Misuse and Trafficking) Act 1985.
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Raymond William Oxby (Offender)
Representation:	Counsel: J Hutchinson (Offender)   Solicitors: W Sit (Crown)
File Number(s):	17/7309717/106653
Publication restriction:	Nil

REMARKS ON SENTENCE

1. The offender is to be sentenced in respect of four offences of break and enter dwelling house or building commit serious indictable offence, pursuant to s 112(1)(a) of the Crimes Act 1900. The offences are as follows:

H 64060264/1 committed on 14 February 2017

H 65519333/1 committed on 12 March 2017

H 66271216/3 committed on 6 April 2017

H 66271216/10 committed on 7 April 2017

2. The maximum penalty for each offence is 14 years imprisonment. There is no Standard Non-Parole Period proscribed. The offender entered early pleas of guilty to all four charges.

3. The offender has asked to be taken into account two matters on a Form 1 attaching to H 66271216/10,

Sequence 7 – possess prohibited drug pursuant to s 10(1) of the Drug (Misuse and Trafficking) Act 1985. The maximum penalty is 2 years imprisonment and/or 20 penalty units.

Sequence 11 – receiving stolen property where a serious indictable offence pursuant to s 188(1) of the Crimes Act 1900. The maximum penalty is 10 years imprisonment and there is no Standard Non-Parole Period.

The offender has admitted his guilt in relation to both matters on the Form 1.

4. The offender was arrested on 7 April 2017. The offences occurred whilst he was on parole, and his parole was revoked on 31 March 2017. The balance of his parole was served from 8 April 2017 until 5 July 2017, a period of two months and 28 days. He has therefore been in custody on remand awaiting sentence in respect of the subject matters, from 6 July 2017.

The sentence hearing

5. The sentence hearing took place on 12 July 2018. The Crown Sentence Summary (Ex A) contained a Statement of Facts in relation to the four subject offences, and the two offences on the Form 1. A summary of those facts are as follows.

6. On 14 February 2017, the occupier of premises at Fern Street Randwick entered his house at 11.50am and observed each of three bedrooms had been disturbed, with items strewn over beds and cupboard doors open. Missing from the premises were a “Raymond Weils” swiss watch and a “Tiffany” pendant. The crime scene officer obtained a DNA sample from a tea towel, which matched the DNA profile of the offender. A warrant was issued for his arrest. That was the conduct in respect of Sequence H 64060264/1.

7. On 12 March 2017, a resident of premises at Harrow Road, Stanmore, returned home at about 6pm. She noticed that her drawer and two bedside tables had been left open, and that in other bedrooms in the house, all of the drawers were also left open. She observed the lock on the back door of the premises to be broken and called police. The following property was confirmed as missing:

1. Gold ring with a ruby in it.

2. Gold ring with a diamond in it.

3. Gold ring with a ruby and emerald in it.

4. Gold necklace.

5. Gold earrings.

6. “The Horse” branded round face watch with a brown strap valued at $150.

7. “Tiffany” branded gold key on a necklace valued at at least $1000.

8. “Tiffany” branded silver key on a necklace valued at at least $430.

9. Gold hoop earrings valued at about $120.

10. Necklace with a diamond pendant.

None of the missing property was recovered by police.

8. The tape lift taken from a hand towel in the premises matched the DNA of the offender. This was the conduct comprising the offence in H 65519333/1.

9. On Thursday 6 April 2017, the residents of premises at Pittwater Road, Collaroy, returned home and observed coins on the floor of a home office and drawers opened in their bedroom. The following items were missing:

1. Rolex watch.

2. Gold chain.

3. Leftover Italian currency

10. This was the conduct comprised in the offence H 66271216/3.

11. On the same day, a resident of another premises on Pittwater Road, Collaroy, arrived home at about 4.30pm and noticed the garage door was open. The resident observed her belongings had been scattered all over her bedroom and the doors were open. The following items were missing from the residence:

1. $1,140.00 cash

2. Assorted foreign currency.

3. Silver Seiko watch.

4. Diamond gold ring.

5. Gold and sapphire ring with diamonds and matching eternity ring with small diamonds.

6. Jewellery including a men’s silver and sapphire engagement ring, large pearl ring, gold link bracelet, Italian necklace with 30 cm gold chain, circular pendant on a 20 cm silver “Tiffany” chain, friendship ring, and a “Thomas Sabo” bracelet.

7. Apple ipad.

12. Police attended both residences and canvassed neighbouring properties. CCTV footage from a neighbouring residence depicted a male who became a person of interest. This was the conduct comprised in the offence H 66271216/10.

13. On Friday 7 April 2017, the offender was arrested on outstanding warrants.

14. Upon his arrest, the offender’s backpack was searched, and an Apple ipad was found inside. The offender told police he was given the ipad and that he was sure that it was stolen. This was the offence H 66271216/11 on the Form 1.

15. Also found on the offender was a small plastic egg-like container inside a black and grey camera case. It contained an off-white substance which the offender admitted was heroin. The substance was later weighed to be 0.32 grams. This was the offence H 66271216/7, possession of prohibited drug on the Form 1.

16. Other property found on the offender comprised $1,680.45 Australian currency, and multiple denominations of foreign currency.

17. Exhibit A contained the offender's criminal antecedents which were extensive. They commenced with offending dealt with by the Children's Court, and numerous offending as an adult since 1983. The offences include numerous offences of dishonesty, possession and supply of prohibited drugs, and numerous housebreaking offences of which the offender was sentenced to various sentences of imprisonment. It is an appalling record and the offender, who was born on 18 June 1965, and is now 53 years of age, has spent much of the last 20 years in jail. The offender is a recidivist who is at real risk of institutionalisation. Exhibit A also contained an order revoking the offender's parole dated 31 March 2017, together with a breach of parole report.

The offender’s evidence

18. The offender relied on a report of Ms M Headington, psychologist, dated 4 July 2018. She interviewed the offender on 6 March 2018 by AVL, and had been provided with the Agreed Facts, the offender’s criminal history, together with his NSW Department of Corrective Services custodial record. The author set out under the heading “Family Background”, the history of the offender's dysfunctional family background. His parents separated when he was an early age, and at 13 he ran away from home to become a street kid. During his teenage years, he was in and out of boys’ homes, where he was regularly sexually assaulted.

19. The offender has had limited education and, during his adult life, only short stints in unskilled employment. In 2016 he was introduced to the Exodus Foundation while attending Narcotics Anonymous meetings with them through the Compulsory Drug Treatment Correctional Centre (CDTCC). He commenced volunteering for the foundation and helped out cooking and serving food to homeless people until his arrest for the subject offences in April 2017.

20. The offender had first used heroin when he was 13 years of age. He had used heroin throughout his life, on a daily basis, whenever he was not incarcerated. He was using heroin when he was arrested in April 2017. However, prior to that he had done well in the CDTCC program. This was the first time he had ever made a concerted effort to remain abstinent from heroin. He had never asked for help before, and realised with hindsight, that he should have asked for help earlier prior to his relapse. He had hoped to return to the CDTCC program if given a custodial sentence, and planned to fully commit himself to their therapeutic program. The author opined that he suffered an Opioid Use Disorder. The author noted that the offender accepted responsibility for his actions and had expressed remorse, guilt and shame for his involvement in the subject offences. He was struggling financially, and had no income to pay for food, accommodation, or other basic essentials, and was unable to fund his heroin use. He knew his offending was wrong and felt overwhelming guilt. At the time of the offending, his need for heroin had outweighed his thinking.

21. Personality testing demonstrated a profile with high scores for Depressive Antisocial Negativistic (passive-aggressive) and avoidant personality scales. The author opined that there were indications of Major Depression. He had not worked since age 30, and the only structure in his life is the routine maintained by him whilst incarcerated.

22. The author made a number of treatment recommendations including regular drug and alcohol counselling and relapse prevention strategies. He was likely to require assistance in organising accommodation post-release, and she made a number of recommendations for that.

23. The offender gave evidence that he had first been in Yasmar Children's Home as a 12-year-old, and was sentenced to an adult prison when he was 17 and half years of age. He had spent more than 20 years in custody since then. He agreed with the facts as outlined above, and gave evidence that notwithstanding his time in prison, he had never been subject to prison discipline nor provided “dirty urine”. During his last sentence, he had engaged in the Parklea drug program from 29 April 2015 to 6 January 2017, when he was released. Less than five weeks thereafter, he committed his first break and enter offence in February 2017, at Randwick, followed by the offences in Stanmore in March 2017, and Collaroy in April 2017.

24. The offender gave evidence of his engagement in the CDTCC program, and the benefit he derived from that, and his voluntary work for the Exodus Foundation.

25. The offender acknowledged that he had failed upon his release on parole, and took responsibility for his criminal conduct and apologised for it. He also acknowledged that he needed to get back to the CDTCC program. He gave evidence that in recounting his childhood history to Ms Headington, it was very difficult for him. This was the first time he had told the truth about his childhood, as he had, throughout his life, tried to protect his siblings. Together, they had been branded as neglected children at an early age.

26. The offender acknowledged that in stealing items of jewellery, those items, which had not been recovered, all meant something to the owners, and he hated himself for depriving them of those items.

27. The offender accepted that he still had a drug problem, namely addiction to heroin, that he could be impulsive, and that he suffered swings of moods. He acknowledged that upon his release from custody there would be alternatives for his accommodation as set out in the report of Miss Headington and that he would go back to the Exodus Foundation and C3 Church to work with the homeless.

28. In cross-examination, the offender conceded that within one month of being released on parole he had relapsed back into daily heroin use. The offending commenced when he was cut off from Centre Link payments, and when asked about his attitude to working, he gave evidence that he liked to work.

29. The offender gave evidence that he was too old to keep offending. He wanted to take full responsibility for his criminal conduct. He acknowledged that the majority of items stolen by him were never recovered, for which he suffered shame. He knew that it was wrong to steal, however, he could not steal from someone “face-to-face”.

30. This was the first time, in numerous court sentencing hearings, that the offender had ever given evidence.

The Crown submissions

31. The Crown conceded that the objective seriousness of the offending in respect of each offence pursuant to section 112 (1)(a) of the Crimes Act 1900, fell towards the lower end of the range of objective seriousness. The Crown further conceded that the offender was entitled to a 25% discount on sentence for his early pleas of guilty.

32. The Crown further conceded that an order for special circumstances should be made, as the offender stood the risk of institutionalisation, given his lifetime of incarceration, and he will require substantial help with respect to his drug and alcohol abuse, and mental health issues for his return to the community. The Crown acknowledged that an aggregate sentence should be imposed, which should be backdated to 6 July 2017.

The offender’s submissions

33. The offender’s solicitor noted the concessions made by the Crown. The offender had been institutionalised since the age of 14 years, and when not in a Children's Home, led life as a street kid in Darlinghurst in the 1970s and 1980s. He had spent 20 years of his adult life in jail, but had no prison disciplinary matters or positive urine tests.

34. The objective seriousness of the break and enter offences was described as “lower-level”.

35. The offender had made significant progress with his drug addiction and would like to return to the CDTCC. To do so, however, he would require an aggregate sentence in which he had to serve a balance of 20 months from 12 July 2018. Any sentence, however, had to be backdated in accordance with the court's discretion. In other words, this was inviting a lengthy non-parole period, together with a recommendation to the Department of Corrective Services that the offender be returned to the Parklea Correctional Facility to complete the CDTCC program there.

Determination

36. Section 3A of the C(SP)A 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.”

37. The objective seriousness of the offending for each of the four offences pursuant to s 112 (1)(a) of the Crimes Act 1900, was towards the lower end of the range for such offences. The Crown did not challenge such a finding.

38. The maximum penalty of 14 years imprisonment for each offence is a guidepost in the sentencing process and must be taken into account. So too, the matters on the Form 1 of possess prohibited drug (maximum penalty 2 years imprisonment and/or 20 penalty units), and receiving stolen property (maximum penalty 10 years imprisonment) must be taken into account in respect of sequence 10 by way of some accumulation on sentence.

39. The offender has led a tragic life. He was neglected as a child and lived on the streets when he was not in children’s homes, where he was abused. He has had little education and very little unskilled employment history, and has not worked since the age of 30. He has spent more than 20 years in jail, but has made some progress with his drug rehabilitation during his last prison sentence. He was unable to assimilate into the community, and when he was unable to meet the requirements for Centre Link payments, he was cut off from same and then relapsed into heroin abuse. His criminal offending was born of that abuse.

40. Whilst general and specific deterrence are important in the sentencing process, here what is most important is the rehabilitation of the offender. He has acknowledged full responsibility for his offending and wishes to return to custody for a sufficient period of time to enable him to complete the requirements of the CDTCC program at Parklea jail. As he has already spent over one year approximately in custody on remand, this will mean a greater sentence than might otherwise be imposed. Given his familiarity with prison life, his ability to cope in custody without misconduct charges, and without recourse to prohibited drugs, suggests that this may be the best course for him. He understands that he is at a crossroads and that unless he makes progress with his relapse prevention, he will spend the rest of his life in jail.

41. I am satisfied that the s 5 threshold has been crossed and that the only sentence is one of imprisonment, to be served by full-time custody. I am also satisfied that an aggregate sentence should be imposed pursuant to s 53A of the CSPA. Before I do so, I am required to set out the indicative sentences that I would otherwise have imposed in respect of each offence. This provides transparency to the sentencing process.

42. Having taken into account the objective seriousness of the offending as set out above, the offender's subjective material, the 25% discount on sentence that would otherwise be imposed, and the fact that I will make an order for special circumstances pursuant to s 44 (2) of the CSPA, based on the need for the offender's drug and alcohol rehabilitation and relapse prevention to assist in his return to the community, the indicative sentences I would impose are as follows:

1. H 64060264/sequence 1 – 3 years imprisonment

2. H 65519333/sequence 1 – 3 years imprisonment

3. H666271216/sequence 3 – 2 years imprisonment

4. H666271216/sequence 10 – 2 years imprisonment

43. I intend to sentence the offender to a sentence of 5 years imprisonment, with a non-parole period of 2 years and 9 months imprisonment to commence on 6 July 2017.

Orders

44. I make the following orders:

1. You are convicted of the following offences:

Four offences of break and enter dwelling house or building commit serious indictable offence, pursuant to s 112(1)(a) of the Crimes Act 1900, being sequences:

H 64060264/1 committed on 14 February 2017

H 65519333/1 committed on 12 March 2017

H 66271216/3 committed on 6 April 2017

H 66271216/10 committed on 7 April 2017

2. I sentence you to a non-parole period of 2 years and 9 months to commence on 6 July 2017 and to terminate on 5 April 2020.

3. The balance of term will be a period of 2 years and 3 months commencing on 6 April 2020 and terminating on 5 July 2022.

4. I have certified the matters on the Form 1.

5. I recommend to the Department of Corrective Services that the offender be admitted to the Compulsory Drug Treatment Program Parklea Gaol at the earliest opportunity.

45. 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.

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Decision last updated: 26 September 2018