R v Simon

[2024] NSWDC 496

District Court

New South Wales

Medium Neutral Citation:

R v Simon [2024] NSWDC 496

Hearing dates:

28 February 2024, 21 June 2024, 18 July 2024

Date of orders:

18 July 2024

Decision date:

18 July 2024

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

Aggregate sentence of 4 years with a non-parole period of 2 years and 6 months, at [73] to [84].

Catchwords:

SENTENCING — Relevant factors on sentence —Repeat offender, extensive criminal history — Numerous break and enter offences to fund “ice” addiction — Relevance of Bugmy factors — Role of specific and general deterrence — Remorse expressed by offender to his psychologists contradicted by record of remorse in SAR — Victim impact statement taken into account.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Criminal Procedure Act 1986 (NSW)

Road Transport Act 2013 (NSW)

Cases Cited:

Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571
R v Ponfield (1999) 48 NSWLR 327
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369

Category:

Sentence

Parties:

Rex (Crown)
Dennis Simon (Offender)

Representation:

Counsel:

T Ehsman (Crown)
J Mackenzie (Offender)

Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
SM Lawyers (Offender)

File Number(s):

2022/00199599; 2022/00267835; 2023/00107541

Publication restriction:

Nil

JUDGMENT

1. Dennis Simon appears for sentence following his entering pleas of Guilty to six counts on indictment. Pleas were entered at Taree District Court on 28 February 2024 following the presentation of an amended indictment. In addition to the six substantive counts on indictment, three offences have been placed onto three separate Form 1 documents. There is also a related summary charge which has been brought to this Court pursuant to section 166 of the Criminal Procedure Act.

2. The charges in respect of which pleas of guilty have been entered include two offences of aggravated break, enter and steal. Each is a contravention of s 112(2) of the Crimes Act 1900 and carries a maximum penalty of 20 years imprisonment. There is a standard non-parole period of 5 years. An additional offence of break, enter and steal contrary to s 112(1)(a) of the Crimes Act 1900 carries a maximum penalty of 14 years imprisonment. Pleas of Guilty have also been entered with respect to two counts of driving a conveyance without the consent of the owner. These are contraventions of s 154A(1)(b) of the Crimes Act 1900 and carry maximum penalties of 5 years imprisonment.

3. The last substantive count to which a plea of Guilty has been entered is an offence of driving a vehicle recklessly knowing that police officers were in pursuit. This is a contravention of s 51B(1) of the Crimes Act 1900 and carries a maximum penalty of 3 years.

4. The three matters included, in each case, in a separate Form 1, and which the Court is asked to take into account with respect to the particular substantive offences to which each attaches, are two offences of taking a conveyance without the consent of the owner and one offence of damaging property. The theft of a conveyance is an offence contrary to s 154A(1)(a) of the Crimes Act 1900 and attracts a maximum penalty of 5 years when prosecuted separately. The offence of damaging property is a contravention of s 195(1)(a) of the Crimes Act 1900 and similarly carries a maximum penalty of 5 years imprisonment when prosecuted separately.

5. The s 166 summary offence is of driving whilst unlicensed. This is a contravention of s 53(1)(a) of the Road Transport Act 2013 and attracts a monetary penalty.

FACTUAL BACKGROUND

6. Dennis Simon committed a series of offences in the Forster area between March and September 2022. Counts 1 and 2 in the indictment to which he has pleaded relate to an aggravated break and enter, the theft of a motor vehicle and driving recklessly whilst unlicensed and being pursued by police.

7. In the early hours of 18 March 2022, the victim, Justine Fotheringham, was sleeping in a room at the Dorsal Boutique Hotel in Forster. At around 3:30am the offender, Dennis Simon, and a co-offender, John Crain, went to the vicinity of the Dorsal Boutique Hotel with the apparent intention of breaking and entering into a room or rooms of the hotel. While the co-offender John Crain waited outside acting as a lookout, Dennis Simon entered Room 102, the room occupied by Ms Fotheringham, via the balcony. Whilst the Agreed Facts do not disclose the precise detail, it would appear likely that the offender was able to climb up to the balcony which was on the first floor. The offender entered Room 102 and stole the victim’s mobile phone and wallet containing credit cards from her bedside table. He also took her room pass key and car keys to her 2009 Hyundai i30 from the bench. He also opened the victim’s suitcase and took jewellery from it.

8. Count 1 relates to the aggravated break and enter, the circumstance of aggravation being that he knew people were present in the premises and the commission of a serious indictable offence, namely the theft of the jewellery, car keys and other items.

9. The offender and John Crain then went to the underground carpark at the hotel and used the stolen keys to enter Ms Fotheringham’s 2009 Hyundai i30. Simon drove the vehicle away with John Crain in the passenger seat.

10. Shortly after the two offenders drove the Hyundai from the Dorsal Boutique Hotel, police in a marked police vehicle driving on Head Street in Forster, observed the Hyundai i30 driving east along Head Street approximately 200m from the hotel. Head Street is the main street in Forster which crosses the bridge from Tuncurry and proceeds generally in an easterly direction from the bridge. Police followed the Hyundai along Head Street and into Bennetts Head Road which is effectively the same street as Head Street notwithstanding the change of name. The Hyundai then turned right into Boundary Street at which time police activated sirens and lights to cause the vehicle to stop. The Hyundai, with Simon driving, failed to stop and police initiated a pursuit approximately 2 to 3 minutes after they had first observed the vehicle.

11. The police pursuit continued for approximately 2 km around residential streets before the Hyundai was driven over a gutter and along a pedestrian walkway into an adjacent street, Cabarita Avenue. Police terminated the pursuit and drove their vehicle around a circuitous route by road to eventually get to Cabarita Avenue where the Hyundai was found abandoned. Subsequent forensic examination of the vehicle located the offender’s DNA from the driver’s seat. The second substantive count to which a plea of guilty has been entered was the reckless driving of the vehicle and failing to stop whilst police were in pursuit.

12. The offence of taking the conveyance without the consent of the owner has been placed on a Form 1 which the court is asked to take into account in passing sentence for count 1, the aggravated break, enter and steal. The s 166 related summary offence of driving whilst never licensed is also before the court and will require separate consideration.

13. Approximately 2 months later, on Friday 20 May 2022, the residents of a single- level villa in the Parkway Grove Estate in Tuncurry left their Toyota Camry parked in the internal double garage of their villa. The roller door was closed but not locked. The keys to the Toyota Camry were left on a table next to the front door.

14. The Agreed Facts indicate that during the night of 19 May 2022, the offender Dennis Simon broke into the home “by unknown means”. Whilst nothing turns on the detail, it would appear likely that he entered the home by means of the unlocked roller door which would have then provided internal access from the garage into the villa itself. Having broken into the premises, the offender took the car keys from the table next to the front door, a wallet, a CD case, a dash camera, and an ‘Ozito’ battery. The offender then entered the Toyota Camry and drove it away from the garage. The following morning, Friday 20 May 2022, one of the occupants noticed the internal laundry door was open. When she went into the garage, she observed the Toyota Camry had been stolen.

15. The following Wednesday, 25 May 2022, the Camry was located parked at the entrance to a quarry at Kiwarrak. This is a somewhat remote location, approximately a 40 km drive from where the vehicle was stolen. It is approximately 10 km south-west of Purfleet, near Taree. A subsequent forensic examination revealed the offender’s DNA on the vehicle’s steering wheel.

16. Count 3 in the indictment is the aggravated break and enter knowing there was a person in the premises and committing the serious indictable offence of the theft of the items from the villa.

17. During the night of Friday, 10 June 2022, a theft of articles from a room in the Dorsal Boutique Hotel in Forster occurred again. The occupants, this time, of Room 104, awoke on the Saturday morning and discovered that their balcony doors were open and that a number of items had been stolen from the room, including the keys to their Nissan Navarra utility motor vehicle which had been parked in the underground car park at the hotel.

18. After going downstairs, they discovered that the Nissan Navarra had been stolen.

19. The vehicle was subsequently located on Tuesday, 14 June 2022 in a residential street a short distance away from the Dorsal Boutique Hotel. The offender’s DNA was located on the steering wheel of the stolen vehicle.

20. Count 4 in the indictment relates to the offender driving the conveyance some time between its theft during the night of 10 June 2022 and its recovery on 14 June 2022, knowing that it had been taken without the consent of the owner.

21. During the night of Monday, 27 June 2022 the offender again committed a break, enter and steal in Forster. In the early hours of 28 June 2022, he broke into a garage in an underground parking area at the Waterline Apartments complex in Little Street, Forster.

22. The offender stole an electric bike and some tools including a pair of secateurs. This break and enter is Count 5 in the indictment.

23. The offender then used the secateurs to smash the driver’s side window of a car parked nearby. He dropped the secateurs on the ground next to the vehicle.

24. His DNA was subsequently located on the handle of the secateurs. An offence of damaging property has been placed on a Form 1 to be taken into account with respect to the break and enter in Count 5.

25. Count 6 in the indictment relates to a further theft of a motor vehicle in Forster. During the night of Saturday, 3 September 2022 a Ford Ranger was stolen from a secure garage in an apartment block in Head Street, Forster. The vehicle was subsequently located a short distance away, near the Forster Cemetery in Strand Street, on Tuesday, 6 September 2022.

26. Following a forensic examination, the offender’s DNA was located on the driver’s seat of the vehicle. The offender was charged and has pleaded guilty in respect of Count 6 to driving the conveyance knowing that it had been taken without the consent of the owner.

OBJECTIVE SERIOUSNESS

27. In the Crown’s written submissions, the objective seriousness of each of the matters before the Court is assessed as falling below the mid-range. With specific regard to Count 5, the Crown submits that it falls within the lower range and with respect to Count 6, the Crown submits it falls towards the lower end of that range.

28. There might be some slight semantic difference in the submissions put by Mr McKenzie on behalf of the offender, but in broad terms I see no reason to disagree with the assessments indicated.

SUBJECTIVE FACTORS

29. The offender was not called to give evidence on the sentence proceedings. Information regarding his subjective circumstances was provided in a clinical psychologist’s report from Mr John Nolan. The psychologist had been provided with a letter of engagement from the offender’s solicitors, a copy of the NSW Police facts sheet, and a copy of the offender’s criminal history. The report was prepared after a two-hour consultation.

30. The history provided by the offender indicated that he was born in December 1991. He grew up with his siblings in Forster. Until the age of nine he lived with his mother, Ms Ledona Simon, and his father, Warren Donnelly, in Forster.

31. At the age of 9 his parents separated.

32. He then moved to Windale in Newcastle where he lived with his father between the ages of 9 and 12. He then moved back to Forster where he lived with his father’s sister for approximately 2 years. His various siblings were similarly displaced and lived in different homes. He has two older brothers, respectively 4 and 6 years older than him and two younger sisters, who are 3 and 5 years younger than him. He told the psychologist that three of his siblings are sober workers. He was unsure about one of his brothers. Three of his siblings have had contact with him in custody and provided encouragement to maintain his sobriety, which he has been able to maintain in custody.

33. He said that he remembers little of his childhood except the chaos brought about by the tension between his parents and being moved around to different homes. He describes his father as sober and employed by Windale Council. He described his mother as a binge drinker. After attending primary school in Forster and Windale, he attended Hunter Sports High School but said that he left after Year 7. The psychologist thought that this reflected his parents effectively abandoning him. Mr Nolan described the loss of the benefits of a high school education as having deprived the offender of learning critical thinking and problem solving at much higher levels than in primary school. His deprived school attendance also cost him the possible benefits of positive peer groups who may have helped him to develop his intellectual capacity and a sense of responsibility. The Wechsler Test of Adult Reading (WTAR) was administered to enable an estimate of intellectual capacity. Mr Nolan recorded that the offender was surprised to hear that he assessed him as having an average IQ because the offender himself thought he was “stupid”.

34. The offender described having been sexually assaulted in his early teens when he was detained at Reiby Juvenile Detention Centre. He said that it made him feel ashamed and violated to the point where it had governed his life. He described repeated disturbing dreams, memories and thoughts about the assault. The offender said that his amphetamine use had been a major blocker of the memories of the trauma.

35. His criminal history reveals repeated appearances in the Children’s Court from the age of about 14 or 15. Early offences of behaving in an offensive manner and destroying or damaging property were followed by offences of breaking and entering and being carried in stolen vehicles. He was first sentenced to a control order at the age of 15. He spent periods in juvenile custody when he breached various earlier orders. He was 16 years of age.

36. The psychologist formed the opinion that he would need to be sober for rehabilitative therapy with respect to the sexual trauma in order to be effective. The offender told the psychologist that he had been interviewed regarding the childhood sexual traumas and that a report was being prepared for possible compensation for mental injury.

37. Mr Simon described methamphetamine or “ice” as an evil drug which he had used and which gave him uncontrollable or extreme degrees of anxiety. He described his use of “ice” as the major factor in what he described as an epidemic of domestic violence. Mr Nolan thought that the offender’s main mental health issue was his adult lifetime use of amphetamines. He said he would need encouragement and support to make “out of gaol” abstinence and mental health recovery a reality. Tests were administered by the psychologist which indicated moderate levels for depression, severe levels for anxiety and moderate levels for general stress. The offender attributed his levels of depression and anxiety to missing his children and partner, together with his uncertain future and the boring nature of gaol.

38. Mr Simon described his alcohol use having commenced in his early teens. He said he remembers drinking alcohol to get drunk up to the age of about 21, when he started using “ice”. He said the more he used amphetamines, the less he used alcohol. Prior to his arrest in 2022, he estimated the weekly cost of his drug use to be $1,000. He said after he was placed in custody in September 2022, it took him 4 weeks to calm down from the sudden loss of daily injections of “ice”.

39. His adult criminal record commenced with terms of imprisonment when he was 18 years of age. That related to a sentence of 1 month, although it appears he spent approximately 6 weeks in custody. He was returned to gaol in 2014 for offences of assault occasioning actual bodily harm and contravention of an Apprehended Domestic Violence Order. His record thereafter includes multiple break and enters, an assault police and escape from custody, and possession of a prohibited drug.

40. In January 2022, he was placed on a Community Correction Order for 12 months for receiving or disposing of stolen property. He was required to report to Taree Community Corrections and to undertake the EQUIPS program. He was to have domestic violence supervision and comply with restrictions regarding drugs and alcohol. In February 2022, he was charged with assault occasioning actual bodily harm, domestic violence-related, and destroying or damaging property. He failed to appear and a warrant was issued for his arrest.

41. In March 2022, he committed the first of the offences for which he now appears before this Court and escaped following the police pursuit. He committed further offences in May, Count 3, and June, Counts 4 and Count 5. The last offending before this Court, Count 6, occurred in September 2022. He was arrested on 7 September 2022 and has remained in custody since that time. The outstanding warrants for the assault occasioning actual bodily harm and the destroying or damaging property were executed and in August 2023, he was sentenced to concurrent sentences of fixed terms of 9 months for the assault occasioning and 4 months for the destruction of property. Those fixed terms were backdated to commence on 7 September 2022 when he had gone into custody. The 9 months of course had already expired on 6 June 2023.

42. On 7 September 2022, he was also charged with offences of contravening the prohibition/restriction in an ADVO on two occasions, namely July 2022 and September 2022. He was sentenced to terms of imprisonment of 3 months for each of those offences. Those sentences were also backdated to the date of his arrest on 7 September 2022, and were directed to be served concurrently with each other and concurrently with the sentences for the assault occasioning and destroying property.

43. At the time of the offending for which he now appears for sentence, he was also on bail with respect to the assault occasioning offence, in relation to which a warrant had been issued. That breach of bail and failure to appear were subsequently dealt with by way of a s 10A conviction with no additional penalty.

44. At the time of his apprehension in September 2022, or shortly after, the offender was also charged with a number of other break and enter offences which had allegedly been committed in June and August 2022. An expectation of the possibility that those matters might be the subject of pleas and be joined in the current sentence proceedings has not come to fruition. The offender is currently bail refused in relation to those matters in respect of which a trial is fixed in Sydney apparently in September 2024.

45. The offender told the psychologist that the break and enters were committed in order to gain money to support his weekly purchase of “ice”. He said that he only drove the vehicles that he took, and did not damage or destroy them. Mr Nolan formed the opinion that he did not intend to offend in a malicious manner.

29. With respect to employment other than his criminal activities, he described having had two jobs. The first was as a builder’s labourer for about 6 months, approximately 10 years ago. The second job was part-time gardening and lawn mowing for a few months at a motel before his arrest in 2022. Whether that was the same motel that he subsequently broke and entered into is undisclosed on the material before me. He told the psychologist he was trained in carpentry.

30. So far as his extended family is concerned, he described three major relationships. The first was with Tamara, for a period of about 10 years from the age of about 14 or 15. There were two children of that relationship, Dennis aged 10 and Cairo aged 8. His second relationship was with Estelle for 5 years. They had two children together, Jarahn aged 9 years, and Laylena who is aged 5. His current partner is Marina and they have one child, Amani, who is aged 3. Mr Simon told the psychologist that he loves all his children and said that when Tamara visits on holidays they stay with his second partner, Estelle. Tamara and Estelle are now good friends.

31. The offender made a good impression on Mr Nolan. Mr Nolan said:

“At interview, Mr Simon did not present as someone whose demeanour fitted a litany of charges outlined over an 18 year period. He was easily likeable and not resentful or angry. He clearly appreciated receiving respect and he returned respect. In my opinion, Mr Simon’s feedback suggests he could develop and maintain a positive frame of mind if he were given the opportunity for community rehabilitation.”

49. Mr Simon stated that he had remorse for his offending and that he was sorry for having caused fear to his victims. He said he felt extreme contrition because he would have hated the same offence happening to him while he was asleep. By reference to the DSM-V, Mr Nolan made a diagnosis of a severe substance use disorder which was in “coerced abstinence” as a result of his custody. In Mr Nolan’s opinion, the offender presents as a medium risk of reoffending.

50. A Sentencing Assessment Report was prepared for the Court’s assistance. The author of that report, dated 17 June 2024, was an experienced Community Corrections Officer at the Kempsey Community Corrections Office. She stated that the offender’s considerable criminal history demonstrated an ongoing pattern of antisocial offending and a disregard for living a lawful lifestyle.

51. With respect to his attitude towards his offending, the author of the report, Ms Jacqueline Lutton, said that the offender verbalised limited insight into his offending behaviour and deflected blame onto his illicit drug use, describing his offending as a ‘quick and easy way’ to fund his increasing drug habit. He acknowledged that the offending was pre-meditated and described how he targeted the motel and chose to commit the offences late at night, as it reduced the likelihood of being caught. He was described as being vague with information regarding the offences of stealing motor vehicles and the author of the report thought he failed to adequately explain why he stole the victim’s vehicles. The explanation offered by the offender was simply that he drove the vehicles to get to his next destination. He justified his actions during the police pursuit saying that he avoided the police as he did not want to be arrested or to have to return to gaol.

52. With respect to his co-offender in the March 2022 offending at the Dorsal Boutique Hotel in Forster, he denied having been negatively influenced by John Crain. On the contrary, he stated that he had encouraged his co-offender to commit the offence.

53. I note that John Crain got the benefit of an Intensive Correction Order for his part in the offending. In all of the circumstances, there is no relevant issue of parity required to be considered.

54. The offender indicated to Community Corrections that his peer group at the time of the offending was an antisocial influence who encouraged his illicit drug use. He stated an intention to avoid these antisocial peers and to adopt a prosocial peer group upon his release from custody. The fact that he has never held a Driver Licence and was driving under the influence of illicit drugs demonstrated a concerning disregard for NSW Road Rules in the opinion of the author of the report.

55. Ms Lutton thought that the offender displayed limited insight into the impact of his offending, initially only expressing the impact on himself and his family. The offender expressed a willingness to engage in supervision, to cease offending and to participate in suitable intervention to address his offending behaviour, his antisocial attitudes and his illicit drug use. He further stated his willingness and ability to undertake Community Service work. He had been last supervised by Community Corrections in 2022, when he had received the benefit of the Community Correction Order to which I have made reference earlier. His response to supervision was reported as poor. He was breached for failing to report as required and for re-offending, which I note was a month later. Previous supervision strategies had focused on addressing the offender’s domestic violence, illicit drug use and antisocial attitudes. Ms Lutton assessed the offender at a high risk of re-offending according to the Level of Service Inventory-Revised (LSI-R).

56. In the event of a supervised order being imposed, Community Corrections would implement a supervision plan which would include a referral to community-based alcohol and other drug counselling; referral to his general practitioner for a Mental Health Care Plan Assessment; referral to EQUIPS foundations and addictions to address his current offending behaviour; the implementation of cognitive behavioural change exercises; and third-party checks with Police, service providers and associates. He was assessed as suitable to undertake Community Service work.

SUBMISSIONS

57. The Court has had the considerable benefit of well-prepared written submissions from both Ms Ehsman, the solicitor appearing for the Director, and Mr McKenzie appearing on behalf of the offender.

58. There is much which is common ground in the submissions by the Crown on the one hand and Mr McKenzie on behalf of the offender on the other. I have already indicated the objective gravity and it is clear that there are Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571 considerations that are required to be taken into account. The Crown does not take issue with that proposition and recognises the appalling circumstances of the offender’s upbringing as a child.

59. The entry of the pleas of Guilty are some indication of remorse in themselves, although it is common ground that the early plea was entered in respect of Count 2, which entitles the offender to a 25% discount with respect to that count. In relation to the other counts on the indictment, it is agreed they are subject to the statutory 5% discount as a consequence of the late entering of those pleas of Guilty.

60. With respect to the expressions of remorse to the psychologist, one often is required, pursuant to the principles articulated in R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 and cases subsequently, to exercise some degree of reserve in relation to untested and unchallenged matters in mitigation advanced through the medium of a third party.

61. In his written submissions, Mr McKenzie points, undoubtedly on the basis of his instructions, to the type of questions which were asked by the author of the Sentencing Assessment Report and which gave rise to the conclusions which she determined, which are in quite stark contrast to the expressions of remorse articulated clearly in the report of the psychologist, Mr John Nolan.

62. I understand the basis upon which the type of questioning alluded to by Mr McKenzie in his submissions could lead to the type of explanations recorded in the Sentencing Assessment Report. I have come to the view that the expressions of remorse, notwithstanding Mr Nolan’s clearly being beguiled to a certain extent by the offender in his impressions of him, but the expressions of remorse indicated in that report I accept as genuine expressions of remorse and the articulated contrition is on all fours with what one would expect from somebody who was expressing genuine feelings of contrition.

63. There is no doubt that the kind of offences before this Court require consideration of general deterrence as well as specific deterrence for an offender who has a criminal history of the type enjoyed by Mr Simon.

VICTIM IMPACT STATEMENT

64. The Court received today a victim impact statement from the wife of the other victim at the villa in Tuncurry, where the offender undoubtedly came in through the unlocked garage door. It was unlocked, according to the victim impact statement, because the mechanism had broken down and in circumstances of some considerable financial distress the victim and her husband having been the victims of a fraud financially, and having lost effectively all of their savings some months earlier, had not been able to afford to repair the garage door.

65. The circumstances set out by the victim in her letter to the Court are of the kind of apprehension following the invasion of somebody’s home that might generally be expected. However, to articulate them and set them out in the fashion which is done brings home to remind the Court of the significance of general deterrence for offences of these kinds where a person’s home is intruded into by a burglar in the dead of night in circumstances where people are sleeping.

66. The victim, Mrs Hope, describes her subsequent fear at having realised that the offender was, in effect, outside her bedroom door, and that in the course of most nights she gets up for one reason or another to go to the bathroom and has been quite traumatised by the thought that she could have walked into the living area while the offender was there stealing their property.

67. She describes the personal impact of the loss of the various items which were taken and the inanity of stealing an 18-volt battery without taking the battery charger. In all events, the victim impact statement does not serve to aggravate the offence but to put into stark highlight the effect upon a victim of this sort of offending.

CONSIDERATION

68. I take into account the purposes of sentencing set out in Division 3A of the Crimes (Sentencing Procedure) Act. Of course, the Court is required to ensure that the offender is adequately punished for the offence and to deter both him and others who may be similarly minded from committed these types of offences.

69. The community is required to be protected but conversely the rehabilitation of the offender, which assists in the long run not only himself but also the community, is required to be given appropriate consideration. His conduct requires denunciation and one is required to recognise the harm done to the victims of the crime and to the community generally.

70. The factors set out in R vPonfield (1999) 48 NSWLR 327 are required to be taken into account with the exception of item 3, which was subsequently disapproved by the Court of Criminal Appeal, and I do so.

71. I propose in this matter to proceed by way of an aggregate sentence pursuant to s 53A. I should observe in passing that the legislature’s itemisation or specification of a 5% discount almost requires judicial officers to have recourse to an abacus and calculation of numbers of days. I have taken the approach of rounding to some degree in the calculations that are required to be taken, lest the instinctive synthesis somehow metamorphosises into what it should not be, namely, an arithmetical calculation.

72. In circumstances where the Court determines to proceed by way of an aggregate sentence, the Court is required to indicate the sentences with respect to the separate or discrete offences and in the circumstance of there being a standard non-parole period specified, to give an indicative non-parole period with respect to those offences.

73. With respect to Count 1, the first aggravated break and enter at the Dorsal Boutique Hotel, taking into account the matter on the Form 1 and taking into account a 5% discount, there will be an indicative sentence of 2 years and 4 months. The indicative non-parole period will be 18 months.

74. With respect to Count 2, the police pursuit, taking into account a 25% discount, there will be an indicative sentence of 18 months.

75. With respect to Count 3, the aggravated break and enter at the villa, taking into account the matter on the Form 1 and taking into account a 5% discount, an indicative sentence of 2 years 4 months, and an indicative non-parole period of 18 months.

76. With respect to Count 4, drive a conveyance without the consent of the owner, taking into account a 5% discount, there will be an indicative sentence of 1 year 10 months.

77. With respect to Count 5, the break, enter and steal in Little Street at Forster, taking into account the matter on the Form 1 and a 5% discount, there will be an indicative sentence of 23 months.

78. With respect to Count 6, drive the conveyance without consent of the owner, taking into account a 5% discount, there will be an indicative sentence of 22 months.

79. There will be an aggregate sentence of 4 years imprisonment. There will be a non-parole period of 2 years and 6 months.

80. I have given consideration to the start date which will be appropriate and as correctly pointed out by Mr McKenzie, the discretion of the Court could commence from when the sentence being served expired, when the offender was taken into custody, or some other date within a range thereafter, bearing in mind that he was bail refused for other matters.

81. In all of the circumstances I have come to the view that despite the generosity of the Local Court concurrently imposing all of the sentences which were imposed there, that it would be likely that there would have been a non-parole period extended for the 9-month term that was imposed were he not bail refused on these matters.

82. In those circumstances, I have determined that an appropriate start date is 3 months before the expiry of that 9-month term, that is, 6 March 2023.

83. He will accordingly be eligible for release on 5 September 2025, and the additional term will expire on 5 March 2027.

84. With respect to the s 166 matter that has been brought to this Court, I record a conviction but without further penalty, pursuant to s 10A of the Crimes (Sentencing Procedure) Act.

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Decision last updated: 22 October 2024