R v Rogers

[2024] NSWDC 1

District Court

New South Wales

Medium Neutral Citation:

R v Rogers [2024] NSWDC 1

Hearing dates:

23 January 2024

Decision date:

25 January 2024

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

See para [50] of these reasons

Catchwords:

CRIME – One count of enter building to steal vehicle - Lengthy criminal history – Drug addiction – Offence whilst on parole – Special circumstances

Legislation Cited:

Crimes Act 1900, ss 111(2), 192E(1)(a), 154J(1)

Crimes (Sentencing Procedure) Act 1999, ss 201A(3), 21A(2)(j), 21A(2)(e),(eb)

Road Transport Act 2013, s 54(1)(a)

Cases Cited:

Bugmy v The Queen [2013] HCA 37

O’Grady v R [2013] NSWCCA 281

R v Elphick [2002] NSWCCA 273

R v Hayes (1984) 1 NSWLR 740

R v Simpson (2000) NSWLR 70

Category:

Sentence

Parties:

Rex
William Rogers

Representation:

Counsel:

R Nezval (Crown)
P de Dassel (Accused)

Solicitors:

Office of the Director of Public Prosecutions (Crown)
Richard Cummins Lawyers (Offender)

File Number(s):

2023/20211

Publication restriction:

None

JUDGMENT

Introduction

1. HIS HONOUR: The Offender has pleaded guilty to a number of charges arising from events he was involved in on 8 January 2023 and 13 January 2023.

2. On 8 January, with the assistance of the Co-Offender Matthew Foster, on whom I have just passed sentence, he entered premises at Taren Point, NSW, and stole a Mercedes-Benz motor vehicle [xxx] 11E.

3. These reasons should be read in conjunction with the reasons I have just delivered in relation to the Co-Offender Matthew Foster.

4. The aggravated enter dwelling and steel motor vehicle the subject of these reasons are what I described as the second event in my reasons for Mr Foster’s sentence. For the purpose of that that event, Mr Foster was an accessory before the fact as he drove the Offender to the premises and waited outside while he entered the premises and stole the second Mercedes.

5. Other charges to be dealt with on a “Form 1” deal with dishonestly obtaining petrol from a service station for use in the stolen Mercedes-Benz on the evening of 8 January 2023, a second charge of stealing of petrol in a different vehicle on 13 January 2023. The matters to be dealt with on a section 166 certificate involve three counts of driving vehicles whilst disqualified from driving and knowingly possess four car number plates not on the correct vehicle.

Offences and maximum penalties

6. The offender is to be sentenced for the following offences:

1. H91972206/16: Aggravated enter dwelling whilst knowing people there-SI for entering a dwelling house with intent to steal a black Mercedes Benz, contrary to s111(2) Crimes Act 1900. The maximum penalty is 14 years imprisonment.

2. H91972206/17: Steal motor vehicle – T1 for stealing a black Mercedes Benz, contrary to s154F Crimes Act1900. The maximum penalty is 10 years imprisonment.

FORM 1

3. When being sentenced for sequence 16, the offender asks the Court to take into account on a Form 1 document, the following:

4. H91972206/4: Dishonestly obtain property by deception – T1 for dishonestly obtaining 78.03 litres of Premium unleaded fuel worth $165.35, contrary to s192E(1)(a) Crimes Act1900. The maximum penalty applicable is 10 years imprisonment.

5. H91972206/6: Dishonestly obtain property by deception – T1 for dishonestly obtaining 51.83 litres of Premium unleaded fuel worth $105.16, contrary to s192E(1)(a) Crimes Act1900. The maximum penalty applicable is 10 years imprisonment.

Section 166 Certificate

1. The Offender is also before the court for the following related offences contained in the s166 certificate:

1. H91972206/5, H91972206/7, H91972206/11: Drive motor vehicle during disqualification period – second offence, contrary to s54(1)(a) Road Transport Act 2013. The maximum penalty applicable is 12 months imprisonment and/or 50 penalty units. An automatic licence disqualification of 12 months (or 6 months minimum) applies.

2. H91972206/12: Knowingly possess identity plate not on correct vehicle-T2, contrary to s154J(1) Crimes Act1900. The maximum penalty applicable is 2 years imprisonment and/or 20 penalty units.

Timing of plea

7. The offender pled guilty during committal proceedings and is entitled to a 25% discount for the utilitarian value of his plea, in line with s25D(2) Crimes (Sentencing Procedure) Act 1999.

Parole status

8. The offender committed this offence while on parole for H83508714, (Police Pursuit – not stop – drive recklessly).

9. The offender’s parole was revoked solely as a result of the present offending.

10. The offender’s parole was treated as revoked as at 8 January 2023. He was arrested on 19 January 2023 for the present offences and served a balance of parole until 24 February 2023.

Time in custody

11. The offender has spent 333 days (10 months, 30 days) in custody referable solely to this offence. This is calculated from 25 February 2023 following the conclusion of his sentence in relation to the earlier offence.

Agreed Facts

12. I set out below the facts agreed by the parties in relation to the charged and other offences.

1. At approximately 7:18am on 8 January 2023, the Co-Offender drove Mercedes [xxx]04E and stopped directly outside the Victims' property in Taren Point. The automated gate across the driveway then opened.

2. At 7:19am, the Offender wearing a black tracksuit black gloves and black balaclava ran down the driveway toward the residence. The Offender wore dark coloured running shoes with fluorescent orange markings.

3. The Offender entered the garage and started the engine of Mercedes Benz [xxx]11E.

4. At 7:20am, the Offender reversed Mercedes Benz [xxx]11E up the driveway where he turned right and drove out of sight along with Mercedes [xxx]04E driven by the Co-Offender.

5. Matthew King indicated the following items were inside his car and had been taken along with the vehicle:

1. A black leather wallet.

2. A driver licence in the name of Matthew King.

3. An AMEX card in the name of his business.

4. A Mastercard in the name of Matthew King.

5. A Visa card in the name of the business.

6. A Medicare card.

7. An Australian Unity health care card.

8. 12-14 keys to six real estate offices at San Souci, Brighton Le Sands, South Hurstville, Oatley, Revesby, Beverley Hills.

9. Keys to the Taren Point property.

10. $300 in cash located in the centre console and a number of coins.

6. Matthew King and Kylie King contacted Police on the morning of 8 January 2023.

7. Matthew King used the 'Mercedes Me' phone application to locate Mercedes [xxx]04E which had been abandoned in the vicinity of Tonbridge Street a cul-de-sac in Ramsgate.

8. CCTV footage from a residence in Tonbridge Street depicts both Mercedes arriving in the cul-de­ sac at approximately 7:49am. The Co-offender and another individual exited Mercedes [xxx]04E at 7:50am and enter Mercedes [xxx]11E driven by the Offender. The Offender and Co-Offender then drive away from Tonbridge Street.

9. Mercedes [xxx]11E was recovered from an unrelated address at 85 Claremont Street in Campsie.

10. Images from the Offender's phone indicate that he was in possession of a Mercedes vehicle key, and videos in the Offender's text message chat history with the contact 'Wifey' contain videos from 10 January 2023 depicting the Offender and a female driving in a Mercedes vehicle.

11. Images obtained from the Offender's phone during the search of his property indicate that the Offender attempted to sell a Mercedes vehicle on or around 10 January 2023. On 10 January 2023 the Offender messaged a contact called 'Matt Odell' with an image of the steering wheel and dashboard of the Mercedes vehicle followed by a message "lt has 40 000 is [sic]." The contact 'Matt Odell' replied "Nah we don't want it bra unless you can get papers signed. ft's no good."

12. The victim in Sequence 4 is 7 Eleven Menai, located at 289 Menai Road, Menai NSW 2234.

13. On 8 January 2023 at 10:37 pm, the Offender parked a black Mercedes Benz AMG GLE63S believed to be Mercedes [xxx]11E stolen from Taren Point, bearing stolen number plates [xxx]03X, at pump 2 at 7 Eleven Menai.

14. The Offender pumped 78.03L of Premium Unleaded 98 fuel, worth $165.35, into the vehicle.

15. The Offender then re-entered the driver seat and drove the vehicle from the location without attempting to pay for the fuel.

16. At the time, the Offender was disqualified from holding a licence with the disqualification running from 21 March 2022 to 13 February 2025.

17. The victim in Sequence 6 is 7 Eleven Menai, located at 289 Menai Road, Menai NSW 2234.

18. On 13 January 2023 at 4:48am, the Offender parked a VW Golf bearing NSW registration ENZ95R at pump 2 at 7 Eleven Menai.

19. The Offender pumped 51.83L of Premium Unleaded 98 fuel, worth $105.16, into the vehicle.

20. The Offender then re-entered the driver seat and drove the vehicle from the location without making any attempt to pay for the fuel.

21. At that time, the Offender was disqualified from holding a driver licence, with the disqualification period running from 21 March 2022 to 13 February 2025.

22. The Offender was observed on13 January 2023 at 7-Eleven petrol station in Menai in a Volkswagen Gold vehicle bearing NSW registration plates ENZ95R. The number plates are associated with a Volkswagen Polo which is a fleet vehicle belonging to lntermotive Solutions Pty Ltd trading as PopCar. The vehicle was hired on 13 January 2023 from Sutherland, and found on 18 January 2023 on Cartledge Street in Miranda. The ENZ9SR numberplates had been removed from the vehicle.

23. Police executed a search warrant at the Offender's residence located at Kirawee NSW at 7:27am on 19 January 2023.

24. In the course of the search, Police located the following NSW registration plates:

1. NSW number plate bearing registration number [xxx]03X. The number plates are associated with a Subaru XV belonging to Tyler Cotter who had parked the vehicle outside the family residence in Barden Ridge between 5 and 9 January 2023. The plates were reported stolen by Tyler Cotter's mother Linda Cotter.

2. NSW number plate bearing registration number [xxx]74R. The number plates are associated with a Volkswagen Golf belonging to Kristina Kisur who resides at Peakhurst. Kristina Kisur was informed by her son on 1 January 2023 that the plates had been taken off the vehicle whilst she was travelling in Europe.

3. NSW number plate bearing registration number [xxx]13Q. The number plates are associated with a Volkswagen Gold belonging to the charity Life Without Barriers used by Teresa Tutaki who resides at Bexley. The vehicle was parked outside Teresa Tutaki's residence from 31 December 2023, and the plates were observed to have been taken off the vehicle on 2 January 2023.

Objective seriousness

13. It is common ground between the parties that the objective seriousness of all of the offences before me are somewhere slightly below the middle of what might be described as the range.

14. I agree with that assessment. In relation to the illegal entry into the premises and the stealing of the car, there was obviously an element of premeditation involved. Whether or not the Co-Offender put him up to it the Offender had plenty of time to consider whether what he was proposing to do was right or wrong. Not only did they drive over to the property obviously intending to break in and steal a vehicle, the Offender went to the trouble to disguise himself in a burglar-type outfit. I reject any suggestion in the evidence – especially the Sentencing Assessment Report – that the Offender just thought he was going for a drive with the Co-Offender. Accordingly, I don't think the offences can be described as a spur of the moment or opportunistic slip and accordingly think that the objective seriousness lies towards the middle of the range.

Subjective factors

15. The Offender was 26 years old at the time of the offences. He does have a lengthy criminal history, but it is fair to say that it is largely found in the Local Court relating to driving matters. He appears to be unable to not drive whilst unlicenced. This demonstrates a high-handed disregard for the law. I consider his repeated offences in this regard as serious and perhaps of itself warranting a full time custodial sentence.

16. The present offending, as is conceded by the Crown, does appear to be some sort of escalation in his criminal conduct.

17. He has served time in custody before, which sentences do not appear to have deterred him from further offending, and he does appear to have a general disregard for obeying the law as evidenced by his repeated driving whilst disqualified.

Remorse / Insight

18. I have evidence before me that does demonstrate that the Offender has shown what does appear to be real remorse and insight into his offending which is relevant pursuant to section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 and generally.

19. The remorse is somewhat more pronounced, in my view, than the insight because on my reading of the various statements made by the Offender, he seems more remorseful for the damage his criminal conduct has caused to his own life and the shame he has brought upon himself and his family rather than any realistic insight as to why what he did was wrong or any real understanding of the impact of his conduct on others.

20. The Offender has a substantial history of illicit drug use and is clearly an addict. He was on drugs at the time of offending. No doubt this is an explanation for what he did but it is not an excuse at all.

The future

21. The Offender’s prospects of not reoffending and being rehabilitated are directly related to his prospects of becoming drug-free.

22. He has already attended courses in custody and has told me through the psychologist that he understands it is not enough to just want and try to quit illicit substances; he has to make a real and concrete effort to do so. The Sentence Assessment Report assesses his prospects of reoffending as medium. Perhaps I am naive but on the evidence I think his prospects are at best a little better than that.

Aggravating factors

23. I have not lost sight of the fact that the offence was committed whilst the Offender was on condition liberty which is an aggravating factor under section 21A(2)(j) and does not bode well for his prospects of rehabilitation. Nor have I lost sight of the fact that the offence involved invading the home of the victims for financial gain – s 21A(2)( e), s 21A(2)(eb). I will take these factors into account. Invading people’s homes and stealing their property is reprehensible and is treated extremely seriously by the community and the courts.

The Offender’s background

24. The Offender's background is that he has from an early stage been involved in exposure to domestic violence from a young age. He did not complete school and appears to have only got as far as year 6 at Miranda Public School wherein he ceased attending school.

25. He started taking drugs and his uses escalated from the age of 14.

26. From the age of 14 to 18 he was homeless.

27. I think the circumstances under which the Offender came to start using drugs are such that it cannot fairly be said against him that it was some sort of personal choice made as an act of free will, but rather was a consequence of his upbringing.

28. I am not sure whether the Offender qualifies for the type of Offender referred to in cases such as Bugmy v The Queen [2013] HCA 37 but I am persuaded that his subjective circumstances relating to his upbringing and his drug use from an early age significantly lesson his moral culpability for these offences.

29. On the other hand, I am concerned that his pattern of offending appears to be escalating rather than at least stabilising if not decreasing.

30. The Offender has been diagnosed with attention deficit hyperactivity disorder; generalised anxiety disorder; major depressive disorder; substance use disorder and gambling disorder.

31. I think these mental health issues again ought fairly to be taken into account when assessing his moral culpability.

32. As far as prospects of rehabilitation and reoffending are concerned, the question will be resolved by whether or not the Offender can remain drug-free.

33. I am impressed with his efforts to date and do hold some hope, but no more than reasonable hope, that he will continue to be drug-free.

34. If he does, I am confident that he will go on to lead a useful and productive and law-abiding life. If however he does not, then it is close to inevitable that he will reoffend and spend the majority of his life in prison.

35. I am conscious, in all the circumstances, to not impose a sentence which is so great so as to “crush” the Offender and take away any realistic hope of his rehabilitation.

Appropriate sentence

36. The invasion of people's homes and the plundering of their property is a social evil from which the community looks for protection to the law enforcement agencies and the criminal courts – O’Grady v R [2013] NSWCCA 281 referring to R v Hayes (1984) 1 NSWLR 740.

37. This notion is reflected in the very lengthy maximum penalties imposed by Parliament in relation to the offences. Despite the Offender’s subjective circumstances, I have tried to keep in mind the objective seriousness of his crimes.

Appropriate indicative sentences

38. In relation to the Form 1 offences and the 166 certificate offences, I would be minded to impose a custodial sentence involving an Intensive Corrections Order as an aggregate for all of those matters. A condition of that order would be to not drive again without a licence. My intention being that if he again drove without a licence he would go to gaol.

39. I will however take into account the criminality involved in those matters when considering the appropriate sentences for the two matters before me.

40. Noting that the principles of parity are important when considering the sequence 16 and sequence 17 offences and reminding myself that in relation to the Co-Offender’s involvement in those offences, I considered indicative sentences of 3 years less 25% reduction for the early guilty plea (2 years) appropriate.

41. I have carefully considered whether there is any reason to come to a different conclusion in relation to this Offender than his Co-Offender. The real mark of distinction between the two, if there is one, is that the Co-Offender’s criminal record is much more serious than this Offender’s.

42. Nonetheless, this Offender does have a significant criminal history himself, the objective seriousness of the offences is the same. I cannot find that any real distinction between the two as to objective seriousness or their subjective cases (although various factors point in different directions), I therefore think that it is appropriate that I impose the same indicative sentence on the Offender.

43. That is, in relation to each of the aggravated enter dwelling and steel motor vehicle offences I impose an indicative sentence of 2 years imprisonment, having taken into account the reduction for the early plea.

Time in custody

44. There is no doubt that the Offender has already spent 11 months in prison relevant only to these offences.

45. Accordingly, any term of imprisonment I impose will be backdated so as to commence on 25 February 2023.

Accumulation / Totality

46. For reasons that are apparent from my judgment in the Co-Offender’s (Foster) matter, and taking into account the other offences before me, I consider that the combined set of circumstances being the illegal entry into premises and the stealing of the car really amount to one single course of criminal conduct and accordingly, I propose to impose an aggregate head sentence of 2 years to commence from 25 February 2023.

Special circumstances

47. On behalf of the Offender, after referring to cases like R v Simpson (2000) NSWLR 70 and R v Elphick [2002] NSWCCA 273, it has been submitted that there ought be a finding of special circumstances in this case to give effect to the important object of sentencing, that is, to promote the Offender’s rehabilitation and prevent or reduce the prospect of him reoffending.

48. I agree with this submission, I think the Offender will be greatly assisted if he has supervised psychological/psychiatric intervention following his release so as to promote the prospect of rehabilitation and assistance with his mental health issues.

47. Accordingly I have decided to increase the usual ratio to 30%.

Conclusion

50. I have decided to impose the following aggregate sentence.

1. In relation to the two matters before me for sentence, taking into account the 25% discount for the early plea of guilty, and the matters on the Form 1 and s 166 certificate, I impose an aggregate sentence of 2 years imprisonment with a non parole period of 1 year and 5 months.

2. The sentence is taken to have commenced on 25 February 2023.

3. The first date the Offender will be eligible for parole is 24 July 2024.

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Decision last updated: 25 January 2024