R v Schwarz

[2018] NSWDC 510

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v SCHWARZ [2018] NSWDC 510

Hearing dates:

19 July 2018

Date of orders:

19 July 2018

Decision date:

19 July 2018

Jurisdiction:

Criminal

Before:

TUPMAN DCJ

Decision:

Aggregate Sentence with a NPP of 2 years; Parole of 18 months; Overall term of imprisonment 3 years 6 months. 

Indicative sentences: 

H64242437 Seq 3- 18 months.

H66238884 Seq 3- 18 months.

H67190949 Seq 1- 2 years 3 months; Indicative NPP 2 years 3 months. 

Catchwords:

CRIMINAL LAW – Sentence – Three offences of entering a dwelling with intent to steal, aggravated by knowing persons were present – Entry gained at night through open balcony doors when victims asleep – Goods taken for first two offences not of high value but credit cards stolen and used – Considerable inconvenience to victims in addition to violation of privacy – Third offence aggravated because on bail for the first two offences – Form 1 offences mainly involving fraudulent use of stolen credit cards –Early Plea of Guilty with 25% discount – Drug addiction catalyst for offending – Offender Aboriginal Australian – Lengthy prior criminal record – Six separate periods of imprisonment – Background of trauma and dysfunction – Abused as a child – Homeless from young age – Few social contacts – Suffering from epilepsy – Guarded prospects of rehabilitation – Special circumstances found.

Legislation Cited:

Crimes Act 1900 (NSW), ss 111(2), 112(2), 154A, 192E(1)(a)-(b).
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 53A.
Criminal Procedure Act 1986 (NSW), s 166.
Road Transport Act 2013 (NSW), s 53(1)(a).

Cases Cited:

R v Ponfield (1999) 48 NSWLR 327.

Category:

Sentence

Parties:

Frank David Schwarz.

The Crown.

File Number(s):

2017/00080126; 2017/00191675; 2018/00028129.

Judgment

1. HER HONOUR: The offender is before the Court for sentence following pleas of guilty in the Local Court. The first offence occurred on 11 February 2017 in residential premises in Alexandria and specifically is a charge of entering a dwelling with intent to steal, aggravated by knowing that there were persons present. It is an offence contrary to s 111(2) of the Crimes Act 1900 (NSW) which carries a maximum penalty of 14 years imprisonment. When sentencing him for this offence the offender asks that I take into account two additional offences to be found on a schedule to a Form 1, signed by him and exhibited in these proceeding. They are both charges of dishonestly obtaining financial advantage by deception, both contrary to s 192E(1)(b) of the Crimes Act, 1900. This offence, if dealt with in the Local Court, carries a jurisdictional limit of 2 years and if dealt with in this court, after election by the DPP, carries a maximum penalty of 10 years imprisonment.

2. The second offence is also a charge contrary to s 111(2) of the Crimes Act1900, specifically an offence which occurred on 11 March 2017, also in residential premises in Alexandria, also aggravated by the fact that the offender knew there were persons inside. When sentencing for this second matter he asks that I take into account one additional offence on a Form 1, which is also a charge contrary to s 192E(1)(b) of obtaining financial advantage by deception.

3. The third offence is a charge of aggravated break, enter and steal occurring in residential premises in Waterloo on 23 January 2018, aggravated by the fact that the offender knew that there was a person present in the premises. This offence is contrary to s 112(2) of the Crimes Act 1900 and carries a maximum penalty of 20 years with a standard non-parole period of 5 years. He asks that when sentencing him for this offence I take into account two additional offences found on a schedule 2 to a third Form 1 document. One of these is a further s 192E(1)(a) offence of dishonestly obtaining property by deception. This is a matter where the DPP had elected to have the matter dealt with in the District Court, where the maximum penalty would have been ten years. However it is now to be taken into account as an additional offence on a Form 1.

4. The other Form 1 offence is an offence contrary to s 154A of the Crimes Act 1900 being an offence of driving a conveyance without the consent of the owner. In this Court if sentenced separately it would carry a maximum penalty of five years imprisonment.

5. There is a further substantive offence for sentence, also committed on 23 January 2018, of drive unlicensed. It is contrary to s 53(1)(a) of the Road Transport Act 2013 (NSW) which carries a maximum penalty of a fine and there is a disqualification attached. This offence is to be dealt with as a related offence following sentence for these matters sent up to his Court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).

6. There are agreed facts signed for all of the matters. From those I accept that the residents of unit G5, 48 Gardener Street, Alexandria went to bed in the early hours of Saturday, 11 February 2017. Between about 3.30am and 6.15am the offender entered the first floor unit by climbing over the balcony railing. From inside the premises he stole two backpacks belonging to the residents and the contents of those which included a French passport, a number of credit cards, two French driver’s licenses, an RSA card, other identification documents, paper work from the Australian Immigration Department, $50 in Australia currency, sunglasses, a watch, sneakers and some clothing. He has pleaded guilty to entering the premises and stealing in circumstances where he knew there were people inside. That is the first substantive offence, the first matter in time.

7. At about 6.14 am he used one of the stolen credit cards at a Caltex Service Station in Alexandria to buy items in the amount of $91.45. This is the first Form 1 offence. Then at 7am he went to Woolworths in Redfern and tried to use the same credit card to buy items for an amount of $80 which is the second Form 1 offence. The transaction was in fact declined.

8. He was not arrested for these offences immediately but it would appear however that fingerprints were located on the balcony railings and I accept that that is the way he gained access to the premises.

9. A month later he did almost exactly the same thing which is the second offence for which I sentence him substantively. The residents of unit G9, 48 Gardener Street, Alexandria, the same unit block, went to bed on the evening of 10 March, locking the front door, but leaving the balcony door slightly open. About 1.40am on the 11th, the offender walked into the driveway of the unit block and in a very similar way to the first offence, climbed onto the balcony of unit G9. He entered the premises through the glass sliding door. The female resident woke up and could hear heavy breathing. She saw the offender shine a light on her in bed but she pretended to be asleep. He searched the unit and took a bowl containing her keys and her backpack and its contents which included a raincoat, a purse, a Medicare card, a driver’s licence, some credit cards and other items. He stole her bicycle and also took another sports bag from inside which belonged to the male resident, which included football boots, sunglasses and a uniform, and he then left.

10. At about 4.48 that morning he went to a Caltex Service Station in Alexandria and used one of the stolen credit cards to buy items totalling $88.50. Police were called to the unit premises and found fingerprints which ultimately were matched to the offender. They also obtained closed circuit television footage from the service station depicting him using the stolen credit card.

11. On 15 March he was at the Redfern Police Station for unrelated reasons and was recognised by a police officer there as the person shown on the closed circuit television footage and was arrested and charged. He exercised his right to silence and apparently was granted bail and released. These are the facts for the second substantive offence and the Form 1 offence connected to it.

12. Whilst on bail for both of these offences he committed a third offence overnight on 22nd and 23 January 2018. That evening the resident of 76 Kellick Street, Waterloo went to bed about 11.30pm and closed the balcony flyscreen but left the glass sliding door slightly open for air. He left his wallet and two sets of car keys on the kitchen bench downstairs. His car was parked directly outside the front door of his unit.

13. At about 1.55am the offender tried to climb onto the balcony but was unsuccessful. He walked away but came back shortly afterwards and then successfully scaled the balcony. He entered the unit through the closed flyscreen, stole the car keys and wallet which contained a Medicare card, driver’s licence, credit cards and other items and also stole a backpack which contained various items of clothing. He then left by climbing back down from the balcony. He used the stolen car key to open the car and drove it away.

14. This break enter and steal is the third substantive offence and his use of the car, without the consent of the owner is the first of the Form 1 offences connected to this matter. His New South Wales driver’s licence had expired in 1997 and had not been renewed, thus he was unlicensed at the time he drove the stolen car away. That is the related offence of drive unlicensed, although it seems to me it was completely unnecessary to pursue that in this Court. Nonetheless I am obliged to deal with it as it was sent to this Court as a related offence.

15. Around 2am that morning he went into a 7 Eleven Store in Surry Hills and used one of the stolen credit cards to buy tobacco in an amount of $78.48, which is the second Form 1 offence relevant for this substantive matter.

16. The resident did not notice that his keys and other items were missing until he came down to the kitchen at about 7am that morning. Police were called and the offender’s fingerprints were found on the balcony railings.

17. Police went to the offender’s house on 26 January and arrested him. He gave them the stolen car keys and the victim’s wallet. He told police where the stolen car was located and it was recovered, apparently without damage. He was taken to the police station and exercised his right to silence, after being charged with the third group of offences. He has been in custody bail refused in relation to this matter ever since. His sentence will thus be backdated to commence on 26 January 2018. As I said he was on bail for the first two offences when he committed the third which clearly enough aggravates his commission of the third offence.

18. Each of these substantive offences of entering premises with the intention of stealing is objectively serious. The maximum penalty relevant for each of them is an indicator of that and particularly so in relation to the third offence where the maximum penalty is 20 years with a standard non-parole period of 5 years. The offender has pleaded guilty to all charges and therefore the standard non-parole period does not apply strictly, but it is a factor which I must take into account when setting the appropriate sentence.

19. Moreso than the maximum penalty however is the fact that people, members of the public, should be able to feel safe in their own homes, to go to bed at night and to leave a door or window open for air without risk of having their homes entered, their goods stolen and their privacy invaded.

20. Each of the residents or victims of these offences must have felt violated when they realised that a stranger had entered, and very vulnerable when they realised that it had occurred when they were asleep in their beds. That is particularly so for the victim of the second offence who in fact woke up and saw the offender in her room, shining a torch in her direction.

21. The circumstance of aggravation of knowing that there were people inside is a relatively serious circumstance of aggravation, but in each of these cases there is no evidence that the offender either had or intended to have any interaction with any of the residents. The fact that there were people in the premises, albeit serious, would appear to be more or less incidental to his commission of the offence. Nonetheless it highlights the seriousness of the offending that members of the public are having not only their property stolen, but their home and the sanctity of their home invaded.

22. In the first two cases the goods stolen are not of particularly high value. In the third charge, the fact that a motor vehicle was stolen of course means that goods of somewhat higher value were taken. However that is mitigated in my view by the fact that the car was returned and apparently without damage.

23. Despite the fact that in none of the three cases was the property stolen of significant value, nonetheless in each case, it would have been a great inconvenience to the owners of that property to have them stolen. The Court and the public is only too aware of how difficult it is to replace important items like credit cards, driver’s licenses, passports and the like and how inconvenient it is to have a car stolen and not have the convenience of a motor vehicle for a period of time. So whilst the property is not of particular monetary value on the whole, it was no doubt of great inconvenience to the owners of that property and apart from the vehicle and wallet belonging to the third victim, there is no evidence that any of this property was ever returned.

24. There are none of the Ponfield factors present. There is no evidence of any damage to property, nor evidence of vandalism or those sorts of matters. I also accept that whilst the offences cannot be described as entirely spontaneous, there is no evidence of any real planning. I accept that in each case in objective terms the objective criminality is below the mid-range, for the first offence, a little less than for the others. But in all cases I accept that they are below the mid-range in terms of objective criminality. As I have said the commission of the third offence is aggravated by the fact that he was on bail at the time.

25. In all cases the Form 1 offences have to be taken into account in a meaningful way. Each of them is, in their own right, relatively serious, but on my finding, in each case in large part they form part of the factual matrix of the substantive offence. I take them into account, but in reality it seems to me that they do not, and ought not increase the appropriate penalty for the substantive offences, because in large part they do not increase the overall criminality.

26. As I have said the offender pleaded guilty to each of these offences and did so at the first available opportunity in the Local Court. He is thus entitled to a 25% discount from what would otherwise be the appropriate penalty.

27. He comes to Court, it seems to me as a very sad individual with a most unfortunate life. He is now aged 47 and is an Australian Aboriginal man. However although he identifies as such he has not, I accept, been well received into that community. He has a relatively lengthy criminal record, commencing when he was a child, for offences, mainly of assault but also including offences of break, enter and steal and other property offences. He has spent six separate periods of imprisonment, albeit mainly for relatively short periods of time. He has one conviction for stealing property in a dwelling house in 2006 which gave rise to a term of imprisonment of 12 months with a 9 month non-parole period. He has a number of motor vehicle type offences.

28. In 2005 he was sentenced to 15 months imprisonment with a 9 month non-parole period for break, enter and steal.

29. Curiously perhaps his criminal record shows no commission of offences for the 5 years or so before he committed the offences before me. I accept that the catalyst for his offending on these occasions was his use of serious drugs, including the drug known as Ice, and also heroin. He had in fact used other drugs since very early years, including cannabis, but from 2015 I accept that he started to use methylamphetamine and heroin after some family trauma. I have read and taken into account a very lengthy psychological report prepared by Ms Martens. The has given evidence on sentence and confirms the truth of the history given to her. I accept that his own life has been beset with trauma and dysfunction from a very young age. He has suffered abuse as a child by his family and was homeless from the age of about 10 and lived a great deal of his life in that situation. He has been able to work from time to time but also has spent a considerable period of time in and out of custody in dysfunctional circumstances.

30. The psychological report in my view indicates a very sad life and a person who has very few social contacts. I accept that he has three daughters who he does not see. They were removed from the care of him and his ex-partner because of their troubled life together, but he walked away and gave them up a number of years ago so that the relevant welfare department would return them to their mother. I accept that it was the discovery that his daughter had been molested in foster care, and then returned to her mother’s care in 2015, that was the beginning of his use of serious drugs which ultimately led to his commission of these offences.

31. I accept that in part he committed the offences for financial reward and the fact that he immediately used the stolen credit cards to buy day to day goods is an indication of that. I also accept that his use of serious drugs was expensive at the time and his ability to finance that was limited. He also claims to have committed the offences in order to be caught because he had grown tired of the drug culture in which he then lived and wanted to get out. It is in fact a curious explanation and at first blush a little hard to accept. However I observed him in the witness box and he appeared to be genuine when he gave that evidence and, albeit a somewhat curious explanation, there was a certain logic to it.

32. In fact he had given up using drugs a couple of days before he was arrested in January and after committing the last offence he went through withdrawal with withdrawal symptoms. He has been in custody since 26 January. He has suffered epilepsy for a number of years and experiences epileptic seizures, which has been the case since he was 33. He has been prescribed medication for that which has not apparently reduced the number of seizures, and he has had these seizures from time to time whilst in custody. I accept that that increases his vulnerability in the prison system and will make his time in prison more arduous than others in the general prison population.

33. I accept that Ms Martens opinion that he suffers from post-traumatic stress disorder as a result of the abuse he suffered as a child. He is a person, I accept with complex needs which require therapeutic intervention, including medical intervention for his epilepsy and also psycho-social supports. He has rarely, if ever, engaged with these services, but I accept that since going into custody he has remained drug free and he is well motivated, at least at present, to take advantage of whatever might be provided to him whilst he stays in custody and then on parole in the community. Again I stress that there was a period of some 6 years before his commission of these offences where despite all of the difficulties that then beset him and despite an increase in drug use, he was able to stay out of trouble with the criminal law. That is a positive aspect towards his prospects of rehabilitation, but he will need a longer than normal period of supervision in the community to deal with his multitude of complex needs. He ought to be referred for medical assistance, psychological treatment of his post-traumatic stress disorder, vocational guidance, drug counselling and psycho-social support. Whether or not that happens of course, time will tell.

34. His prospects of rehabilitation must be viewed as somewhat guarded, because of this multitude of problems and his relatively lengthy criminal history. I do accept that he is remorseful and contrite and at least at present he is motivated to stay away from drugs and from the drug culture.

1. As I have said he will need a lot of help in the community for a longer than normal period. If he is able to stay away from drugs and able to take advantage of assistance to form pro-social networks on his release, then his prospects of rehabilitation are relatively good. He will need assistance with stable accommodation on his release to parole. His Department of Housing lease, which would otherwise run until 2027, will be cancelled next week because of the length of time he has spent in custody and he will have to start all over again when he is released to parole. All of these are factors which have an impact on an assessment of his real prospects of rehabilitation.

2. Turning then to the appropriate sentences for these offences in those circumstances, I have concluded that for both of the first two offences in time, those of 11 February and 11 March 2017, absent the pleas of guilty, sentences of 2 years would be appropriate. I will reduce that to 18 months, after taking into account the 25% discount.

3. The third offence committed January 2018 in my view ought give rise to a 3 year term of imprisonment without the 25% discount, therefore giving rise to a 2 year and 3 month overall sentence. If these were entirely accumulated that would be a total of 5 years and 3 months, which is excessive in the circumstances. The total criminality should give rise in my view to 3 years and 6 months with a 2 year overall non-parole period. I have decided to deal with these offences by setting an aggregate sentence pursuant to s 53A of the Crime (Sentencing Procedure) Act, 1999 with the indicative sentences being as I have just announced and the aggregate sentence of 3 years and 6 months with an aggregate non-parole period of 2 years, to reflect the overall criminality. The special circumstances here are the need for a longer than normal period of supervision in the community on his release to parole and also the fact that his medical condition will render his experience in custody more harsh than the general prison population.

4. The unlicensed driver offence ought not be disregarded, particularly so as this offender has in fact not held a licence since 1997. His traffic record however is not particularly bad and there appear to be no entries on his traffic record since 2004. It is appropriate to record a conviction it seems to me for this matter, but to take no further action to deal with the matter pursuant to s 10A of the Crime (Sentencing Procedure) Act, 1999. In the circumstances I do not propose to impose a period of disqualification. When the offender is released to parole in 18 months’ time or a little less, he will need everything going for him in order to succeed in any form of rehabilitation. It may be that he can never drive in any event again because of his epilepsy, but if he can there is nothing in his record which indicates that he presents a particular risk to other road users and to disqualify him for a period of time during his release to parole, and in the event that he is able to drive and assist himself to find accommodation or obtain employment or the like, it seems to me it would be unnecessarily punitive for him to be commencing a period of disqualification at that stage, which is in fact what would occur if a disqualification were now imposed.

5. For those reasons then I make the following formal orders:

6. For all offences the offender is convicted. Pursuant to s 53A of the Crime (Sentencing Procedure) Act, 1999 I impose an aggregate sentence comprising a non-parole period of 2 years commencing 26 January 2018 expiring 25 January 2020 with 18 months parole thereafter commencing 26 January 2020, expiring 25 July 2021, giving rise to an overall term of imprisonment of 3 years and 6 months commencing 26 January 2018 expiring 25 July 2021. I recommend that he be released to parole at the expiration of the non-parole period.

7. Indicative sentence for file H64242437 sequence 3, offence 11 February 2017 18 months.

8. Indicative sentence file H66238884 sequence 3, offence 11 March 2017 18 months.

9. Indicative sentence file H67190949 sequence 1 offence 22 -23 January 2018 overall 2 years, 3 months, indicative non-parole period 15 months.

10. I indicate I have taken into account Form 1 offences for all three files. S166 certificate dated 24 November 2013, related offences taken into account as Form 1 offences.

11. 166 certificate dated 13 June 2018 drive disqualified, convicted pursuant to s 10A, no further penalty. Decline to fix a disqualification period.

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Amendments

09 December 2019 - Some minor formatting changes have been made.

Decision last updated: 09 December 2019