R v Sines

[2021] NSWDC 698

District Court

New South Wales

Medium Neutral Citation:

R v Sines [2021] NSWDC 698

Hearing dates:

15 December 2021

Date of orders:

15 December 2021

Decision date:

15 December 2021

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraphs 72 – 73

Catchwords:

SENTENCE – aggravated break and enter with intent to commit serious indictable offence – offender broke into ex-partner’s home and stole personal items – Bugmy principles – prospects of rehabilitation

Legislation Cited:

Crimes Act 1900 (NSW) ss 105A, 112

Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

R v Huynh [2005] NSWCCA 220

R v McNaughton (2006) 66 NSWLR 566

R v Ponfield (1999) 48 NSWLR 327

R v Todorovic [2008] NSWCCA 49

Category:

Sentence

Parties:

Director of Public Prosecutions (NSW)
Wundarra Sines (offender)

Representation:

Counsel:
Mr B Hancock for the offender
Ms L Crase (solicitor advocate) for the Director of Public Prosecutions (NSW)

Solicitors:
Solicitor for Public Prosecutions (NSW)
Aboriginal Legal Service (NSW/ACT) for the offender

File Number(s):

2021/3901

Publication restriction:

Nil

ex tempore sentencing remarks

BACKGROUND

1. The offender is before the Court for sentencing following a plea to the offence that on 1 January 2021, at Willmot, he broke into and entered the dwelling house of Anita Thaidy (the victim) and, in that house, he committed a serious indictable offence, larceny, in circumstances of aggravation, being that he knew that persons were present. The offence was contrary to s 112(2) of the Crimes Act 1900 (NSW).

2. The offence carries a maximum penalty of 20 years’ imprisonment, and a statutory non-parole period of 5 years’ imprisonment.

CIRCUMSTANCES OF OFFENDING

3. The Crown and the offender placed before the Court a Statement of Agreed Facts. The following summary is taken from those facts.

4. Prior to the offending, the offender and victim had been in an intimate relationship, although separated from 2016. As a result of that relationship, they share four children, now ranging in age from nearly 6 to 11. The offender does not have access rights to these children.

5. After the end of that relationship, the victim commenced a relationship with another man (Jason Streeting) in about 2018.

6. As at the date of the offending, the victim and Mr Streeting resided in a single-storey fibro house in Willmot, with the four children. The premises were secured by locked windows and flyscreens, save for the kitchen window.

7. In September 2020, the offender had been seen by the victim in an alley way near these premises, but prior to the subject offending, he had never been inside.

8. In the early evening on 31 December 2020, New Year’s Eve, the victim visited her mother, Jamie, with some of the children at her mother’s house in another street in Willmot to celebrate the victim’s father’s birthday. Prior to visiting that house, the victim ensured she locked all the doors and windows of her home. At 9pm that night, Jamie dropped the victim and the kids home. When they arrived, Mr Streeting was inside with the victim’s sister (Lisa) and her son.

9. Shortly after, the victim, Mr Streeting and their eldest son, went to McDonalds to get dinner. This was at about 9:20pm. At 9:45pm, they returned home. The victim got the kids ready for bed. The kids fell asleep in the lounge room. The victim soon went to bed. She closed the bedroom door. Her partner Streeting, stayed up in the bedroom, watching television before falling asleep before midnight.

10. At about 11:15pm, the offender arrived at the victim’s mother’s house. He asked Jamie where the boys were and Jamie indicated that they had gone home with the victim and Mr Streeting. The offender left soon after.

11. At about 2:30am, on 1 January 2021, the victim awoke to the sight and sound of the offender watching the television, crouched down only about 30 cm away from her. The victim noticed that Mr Streeting was asleep and she screamed out for him. After this occurred, the offender stood up and ran out of the bedroom. Streeting was in pursuit.

12. The victim ran into the hallway and saw the offender trying to climb out through one of the children’s bedroom windows. But Streeting grabbed hold of one of the offender’s legs. They thereafter engaged in a scuffle, during which the victim yelled at the offender to get out of her house.

13. The offender managed to get away from Streeting and ran into the hallway. The offender and Streeting then had a verbal exchange before resuming their fight; in the course of which the offender explained that he was “here to drop off (the eldest son) .. I come here with Lisa”. Meanwhile the victim picked up Streeting’s phone and called the police.

14. After that call, the victim learnt from Streeting that the offender had jumped out through a window.

15. Police detectives conducted an examination. Streeting informed police that his new gold Guess watch, left on the cupboard in the bedroom the night before, was missing. The victim noticed that her purse was empty, with $130 in cash missing and cards scattered across the floor.

16. Particulars in the Court attendance notice also referred to a pack of cigarettes being stolen, however there is no agreed fact about that.

17. The offender was arrested on 19 January 2021. This had occurred after the offender had avoided being apprehended on 11 January 2021 through his use of a push bike.

18. He was offered the opportunity, but declined to be interviewed.

OBJECTIVE GRAVITY

19. In R v Ponfield (1999) 48 NSWLR 327, the court expressed the guideline for assessing the seriousness of the ‘standard’ offence under s 112(1) (at [48]–[49]). In R v McNaughton (2006) 66 NSWLR 566 Spigelman CJ at [23]–[24] and Grove J at [66]–[76] disapproved one of those guidelines (guideline (iii)). I take those guidelines into account.

20. The maximum penalty of a serious indictable offence does not of itself determine where the offence lies in the scale of gravity of offences against s 112(2). Here the indictable offence was larceny, which carries a maximum penalty of 5 years. In R v Huynh [2005] NSWCCA 220, at [27], the Court of Criminal Appeal rejected the applicant’s argument that it was unrealistic to classify an offence of break, enter and steal as “towards the mid-range” merely because larceny only carried a maximum penalty of five years, which was within the bottom of the range of serious indictable offences.

21. The relevant circumstance of aggravation in this case is in s 105A(1)(f) of the Crimes Act. Where the circumstances in paragraph (f) are charged in aggravation, the defendant is presumed to have known that the premises were occupied, unless the court is satisfied that there existed reasonable grounds for believing there was no one in the place. In the circumstances, I find that the offender did in fact know that the premises were occupied.

Culpability

22. The offender relied generally upon a report prepared by Ms Diana Grujoska, of Duffy Robilliard Psychologists, dated 30 November 2021. Ms Grujoska has postgraduate qualifications and has practised as a psychologist for approximately 3 years, since her training commenced roughly 5 years ago. The offender gave an account of his offending to her, and also to the Grafton Community Corrections Officer, who prepared a sentencing assessment report (SAR) dated 12 November 2021.

23. The offender informed Ms Grujoska that he was under the influence of heroin at the time of the offending. According to the Grafton Community Corrections Officer, he had been spending around $200 a week on illicit substances up to his incarceration.

24. He told her that his eldest son had informed him that Mr Streeting had been hitting him and his siblings, including on the day of the offending, and that this had prompted him to go to the residence with the objective of taking the children away from the home and keeping them safe. He reported to her that Mr Streeting regarded his entry as unwelcome and that they had an argument, which escalated into a fight. She recorded the offender as acknowledging that he had taken a wrong approach, but said he was angry and trying to help his son.

25. The offender’s background is set out at some further length later in these remarks, but it suffices for the present to note that Ms Grujoska emphasised that his antisocial behaviour may be attributed to the effects of exposure to violence and drug use, low socio-economic status, poor education and removal from family; all constituting or contributing to a disadvantaged background of the kind recognised by the High Court in Bugmy v The Queen (2013) 249 CLR 571 (“Bugmy”).

26. These observations were supported by a letter by Ms Jessica Brown, of the Children’s Court Assistance Scheme of the Western Sydney Community Legal Centre. Ms Brown is aware of the offender’s circumstances – she was there when the offender turned himself in to police and knew of him for a period of about 6 months prior to his going into custody through community events. She emphasised his background of removal from family and being made a ward of the state, with different placements and foster care; his limited educational attainments and the death of his sister as having marked impacts upon him.

27. Despite that background, she opined that he had proven himself to be “remarkably resilient”.

28. To similar effect, the Grafton Community Corrections Officer observed that the offender felt somewhat justified in his actions, believing that he had acted out paternal instincts in protecting his son and exacting retribution for his sons’ repeated abuse. He explained to the Corrections Officer that violence had been a constant theme of his issues throughout his life and the means through which everyday conflicts could be resolved. He explained to the Community Corrections Officer that he felt emotionally overwhelmed just before the offending: the thought of his son being physically abused triggered feelings from his own childhood experiences, impelling him to act upon his emotions. The Corrections Officer believed that the offender used ‘instrumental and expressive violence’ in the offending, to exact retribution for the reported abuse of his son. This manifested in a duality of feelings, of both satisfaction and remorse following the offending.

29. The offender has not apparently been clinically assessed as to his mental health, at least up until the offending. Ms Grujoska administered testing. She opined that he experiences symptoms consistent with Post Traumatic Stress Disorder and an extremely high dependence on heroin as a means of supressing the emotional trauma from childhood and his sister’s death. She considered that he met the DSM-5 criteria for both PTSD and a Substance Abuse Disorder.

30. I am conscious that the offender did not himself give evidence directly testifying to the matters he reported to these various persons. But there is a general consistency in the narrative he conveyed to each and I accept, on the probabilities, that general narrative.

31. In my view, his culpability is diminished on account of several, inter-related matters. First, I accept that Bugmy principles arise in the sense that he has had a childhood of profound disadvantage; especially in the sense of extensive homelessness; loss of parental contact (especially his mother) and exposure to raw violence. I place weight upon the view of the Corrections Officer that he became exposed, indeed familiarised, from an early age to violence which contributed to the offending. Secondly, this was not a case of breaking and entering for a financial motive; even if he did engage in casual acts of (relatively minor) theft along the way (a pattern of behaviour stretching back to his early childhood). His primary concern was the protection of his children. He honestly thought that through force and aggression he could protect his son if not also his other children. Thirdly, his heroin addiction should not be viewed in isolation but rather is a by-product of his childhood and background. This should be considered as a mitigating factor because his addiction could not be classified as personal choice: R v Todorovic [2008] NSWCCA 49. These matters, in combination, do serve to reduce the seriousness of the offending, reduce the weight accorded to general and personal deterrence and enhances the consideration of rehabilitation. I am not oblivious to a matter which counts against the offender in terms of the application of Bugmy principles. As the plurality noted at [44], an inability to control violent responses to frustration may increase the significance of protecting the community from the offender.

Overall assessment of gravity of offending

32. The offender submitted that although occupants were in the home, the breaking and entering in the dwelling occurred at night-time, and he endeavoured to leave when detected; the chattels taken were not of high value. Generally the offending fell below the mid-range of offending.

33. The Crown submitted that the watch was in close proximity to the offender. Ms Crown accepted that the violence against Mr Streeting was only minor. The offending was ‘brazen’, but Ms Crown accepted that what was stolen was of relatively minor value.

34. In my view, influenced by my assessment of the offender’s diminished culpability, the minimal damage to the dwelling house itself; the unsophisticated and opportunistic nature of the offending, the relatively small value of the goods seized (there was no suggestion that the watch had sentimental value); that the element of violence, as between the offender and Streeting was not significant – it did not involve any weapon – and there was an absence of proof of enduring trauma or injury in the victim. None of the children appear to have been disturbed. The offending conduct fell below the mid-range of offending even if it was above the lowest end of the range.

Other circumstances of aggravation

35. The circumstance that the offending occurred in the knowledge that there would be occupants in the premises is already factored into the offence. The Crown referred to the circumstance that the offending occurred in the victim’s home, although Ms Crown accepted this was virtually implicit in the nature of the offence.

36. The offender has a criminal history reflecting earlier offences of theft, violence and drugs. In fairness, although he has committed similar offences to the subject offending, there had been a period of three years leading up to the offending when he had not. Of particular concern was the offence in December 2016 of breaking and entering in the circumstances of aggravation; on that occasion, the infliction of actual bodily harm.

37. He has been before the Children’s Court since the age of 16; as well as multiple appearances in the Local Court in Kempsey and Port Macquarie. Mr Hancock of Counsel, of the Public Defenders, acknowledges that he has had a ‘revolving door’ of incarceration.

38. This is not a record which lends itself to leniency.

39. The Grafton Community Corrections Officer noted that whilst in custody, he has been charged with offences of a violent nature and possession of prohibited goods.

SUBJECTIVE CIRCUMSTANCES

Age and background

40. The offender was 28 years of age at the time of offending.

41. Much of the offender’s background is comprehensively referred to in Ms Grujoska’s report.

42. He is an indigenous Australian. He comes from a large family, of four sisters and five brothers. His parents separated when he was aged 9 and he lost contact with his mother until he was aged 18. He recalled witnessing violence between his parents. Following the separation, he (and his siblings) became wards of the state. The offender told Ms Grujoska that prior to becoming a state ward, his father was periodically violent towards him, and abusive in the sense of neglect. The offender’s father was reportedly a member of the ‘Stolen Generation’.

43. Following his removal from family, he had different foster carers and struggled away from his siblings. For some time he spent with his Aunty, who was also physically violent towards him before he was ‘kicked out’. He endured periods of homelessness, from as early as the age of 12 and disclosed that he began to engage in acts of petty theft. From the age of 13, he began to smoke heroin with ‘friends’ on the street. He was in and out of juvenile detention until he reached 18 and eventually reunited with his mother in Kempsey.

44. Whilst his mother was and is supportive of him, she was a drug user. Whilst aged 19, he suffered the loss of one of his sisters, killed in a motor vehicle accident. He remains haunted by her death.

45. In terms of his education, he had to repeat year 6. He attended Nepean Public School in Year 7 and a different school in Year 8. He was good at sports and made friends, but struggled academically. Because of his family and personal circumstances, he could not complete school beyond Year 8. He attempted a TAFE course in Kempsey, but that did not last long.

46. After school, he did some work with his father-in-law’s lawn mowing business, but that was several years ago. He holds no educational qualifications and, aside from the brief experience with his father-in-law’s business, has not been employed. He has been a recipient of a disability pension since the age of 21 to reflect his hearing loss and learning difficulties. He explained to his psychologist that he has been born deaf in one year. He is currently taking a prescription for Hepatitis C.

47. I have already indicated his relationship with the victim, whom the offender met when he was 18. There were signs that his relationship was good for him: there were periods where he would be abstinent from drugs and he acknowledged that the victim is a good mother. He indicated that he wants to be a good father to his children. More broadly, however, he is not especially social. He does not like being tied down to one place.

Plea of guilty

48. The offender is entitled to a 25% discount on penalty by reason of his guilty plea. For reasons I will shortly come to, the discount reflects the utilitarian value of his plea rather than demonstrating remorse.

Contrition

49. The offender did not give evidence in the sentencing hearing. His expression of regret made to other persons has to be treated with a degree of circumspection.

50. Ms Grujoska reported that the offender had expressed to her remorse and acknowledged that he should have walked away from the situation. She regarded those expressions as being genuine.

51. The Community Corrections Officer also noted his expression of regret but supplied a more nuanced analysis. The offender was regarded as having regretted the outcome and his subsequent incarceration; not the harm inflicted upon his victims which he regarded as being justified.

52. I prefer the view of the Community Corrections Officer who, I consider to be more experienced than Ms Grujoska in assessing statements of such kind. I find that whilst he has some remorse, in the sense of acknowledging that there was a better way of responding to the report that he had received from his son, his remorse was only partial.

Prospects of rehabilitation

53. Ms Grujoska reported that the offender was willing to undertake programs to help him manage aggression and violent behaviour so as to limit scope for reoffending. He told her that he has the goals of maintaining abstinence, securing stable housing and employment and spending more time with his children.

54. Aside from treatment for his mental health, for which he would need the continued engagement with a psychologist, cognitive behavioural therapy and extensive counselling, she thought he would need assistance with accommodation and employment

55. He told the Grafton Community Corrections Officer that he would like to commence opiate replacement therapy to help him manage his heroin addiction. He indicated that he expected to return to live with his mother in Kempsey upon his release.

53. The Community Corrections Officer assessed the offender as falling at the T2 “High risk” of reoffending according to the LSI-R inventory, which plainly does not assist the offender. As the Crown pointed out, he has had multiple opportunities or warnings to rehabilitate himself in the past.

54. But against that are countervailing factors in his favour.

55. First, the Community Corrections Officer set out an elaborate supervision plan on the contingency that the Court makes a supervised order. The plan embraced treatment for the offender’s violence and aggression, substance use, mental health and parenting aspirations. The Community Corrections Officer wrote positively about the offender’s willingness to engage with intervention, and supervision requirements; referring to his motivation to address his criminogenic needs.

56. Secondly, he has a supportive mother who can apparently provide accommodation upon his release.

57. Thirdly, In the letter of support referred to earlier, Ms Jessica Brown apparently indicated that the offender had assisted with the Oztag program run through the Western Sydney Community Legal Centre. This is a program targeted to young men in the Mount Druitt community. She regarded the offender as being qualified to assist as a mentor.

58. Fourthly, although I have baulked at accepting full remorse, it should not be discounted that the offender has shown a level of insight into his offending; acknowledging that he could and should have acted in a different way. The corrections officer noted his capacity to self-reflect.

59. Fifthly, Ms Brown’s letter speaks of this offender’s resilience, in spite of what has occurred in his life. I take it that Ms Brown is well-equipped to form such assessment.

60. Sixthly, I consider on the probabilities, that he had not previously been thorough assessed. It is hoped that with diagnoses being made, the offender’s efforts at rehabilitation may become more available than in the past.

61. Hence there are real prospects of the offender in terms of future accommodation, occupation (which might enhance future employment prospects) and the administration of a finely calibrated supervision plan. His prospects of rehabilitation are guarded.

Hardship

65. Ms Grujoska commented that continued incarceration would impact the offender’s capacity to access the services he needs to assist him with his mental health, and observed, with reference to literature, that he was exposed to further isolation and the risk of institutionalisation. Further the custodial setting, notorious for the reinforcement of violent behaviour, was likely to generate hyper-vigilance and distrust and exacerbate a risk of re-offending of this nature. Full-time detention is deleterious to someone with PTSD.

66. I place weight on this opinion, particularly on the aspect of whether special circumstances arise which warrant variation of the non-parole period.

INSTINCTIVE SYNTHESIS

67. I take into account, first, the maximum penalty and the statutory non-parole period. The nature of the offence is very serious and, as has been indicated, aside from being legislative guideposts, they are not to be treated as mere formalities.

68. This is a case where sentencing factors in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’) point in different directions. Notwithstanding his diminished culpability, the somewhat perverse sense of satisfaction in the offender for the effects (on the victims) of his offending and absence of contrition signify a need for personal deterrence and keeping him accountable for his wrongdoing. But these considerations have already been partly fulfilled by the not insubstantial period of custody that the offender has already served. It goes without saying that general deterrence is significant. Retribution and denunciation are diminished in the circumstances of this offender. Also of significant weight is recognising the harm upon the victim and her family; to vindicate her (and their) dignity, even if such harm has not been quantified and protection of the community. The corrections officer’s assessment of risk of re-offending is, of course, a matter of significant concern.

69. In my view, the s 5 threshold is crossed. Mr Hancock, appearing for the offender, conceded as much. The circumstances in my view are such that a starting point for a period of imprisonment would be 3 years’ imprisonment. With the 25% discount on the plea, that would reduce the sentence to 2 years and 3 months.

70. I accept that special circumstances apply. It is particularly important for the offender’s rehabilitation to be aided as much as possible and to limit the concern of institutionalisation.

Sentence

71. Mr Sines, please stand.

72. You are convicted of the offence of breaking into and entering a dwelling house and, in that house, committing a serious indictable offence, larceny, in circumstances of aggravation.

73. I sentence you to a term of imprisonment of 2 years and 3 months, commencing on 19 January 2021 and expiring on 18 April 2023, with a non-parole period of 1 year, 1 month and 15 days, expiring on 5 March 2022, after which you will be eligible for release.

**********

Decision last updated: 17 December 2021