R v Steven Krotiris

[2011] NSWDC 111

District Court

New South Wales

Medium Neutral Citation:	R v Steven KROTIRIS [2011] NSWDC 111
Decision date:	13 May 2011
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	Non-parole period of 1 year 4 months. Balance of the term of 1 year 6 months.
Catchwords:	CRIMINAL LAW - sentence - steal property in a dwelling house - additional offence of attempted break and enter with intent to steal -attempting to break into premises when police arrived - co-offender arrested while running away - offender found by police - plea of guilty at late stage - extensive criminal record including convictions for crimes of this sort - offence committed in company - offender on conditional liberty at time of the offence - history of drug abuse
Legislation Cited:	Crimes Act 1900 s 148 Crimes (Sentencing Procedure) Act 1999 s 43
Category:	Sentence
Parties:	Regina Steven Krotiris
Representation:	Mr Flynn for the offender Ms Sinosic for the Director of Public Prosecutions
File Number(s):	2009/12000001

SENTENCE

1. I am sentencing Steven Krotiris for the crime of stealing property in a dwelling house. When I am sentencing him I will take into account another offence of attempted break and enter with intent to steal to which Mr Krotiris has pleaded guilty and I sign a certificate to the effect that I have taken it into account.

2. Stealing property in a dwelling house is an offence against section 148 of the Crimes Act 1900. Parliament has fixed a maximum penalty of seven years imprisonment to that crime.

3. The crime which I am taking into account of attempt break, enter and steal is, on the face of it, even more serious, carrying a maximum penalty of fourteen years imprisonment and a standard non-parole period but I am satisfied in the circumstances of both offences that it is an appropriate offence to go on to the Form 1.

4. It is always important for a judge, in sentencing an offender, to first describe what happened in the crime so that the basis of the sentence is clear and so that an assessment can be made of how serious the crime is.

5. Mr Krotiris and another man named Andrew Schoultz were in Birriga Road, Bellevue Hill, in the early hours of Tuesday, 9 December 2008; in fact it was about 4.30 in the morning. There was a security gate around a block of units in Birriga Road. The gate was about two metres high. Both of them climbed over the security gate and went down a flight of stairs to the first unit.

6. They tried to get into one of the units. They were seen by one of the occupants who reported what had happened and Mr Krotiris and Mr Schoultz left the scene. They were heard talking by the occupants of the unit they tried to get into and they were seen looking into cars parked in a nearby block of units. The occupants of the unit that they tried to get into called the police.

7. Not knowing that the police were on their way, Mr Krotiris and Mr Schoultz continued with their criminal escapade. They got a makeshift ladder and climbed on to the balcony of a unit in another block of units nearby. The sliding door had been left slightly open for fresh air. It was Mr Schoultz who actually got on to the balcony.

8. He then walked through the sliding door and picked up a computer and a watch which belonged to one of the occupants. He in fact was in the bedroom of one of the occupants. She woke up and not surprisingly screamed and woke her partner who jumped out of bed and told Mr Schoultz to clear off. Mr Schoultz did just this and jumped over the balcony and discarded what he had taken.

9. The man was heard running up Birriga Road and voices were heard saying, " The cops, the cops are here ."

10. The police arrived and Mr Schoultz was arrested whilst he was running away. He was wearing a sock on one hand and had a screwdriver and a latex glove as well. They then found Mr Krotiris. They found that Mr Krotiris had

Mr Schoultz's phone number on Mr Krotiris' phone. Police asked Mr Krotiris what he was doing and he said, " I was at the top of the street doing 500 steps, push-ups, 500 steps, push-ups."

11. Mr Schoultz pleaded guilty to his crimes and on 24 September 2009 was sentenced by his Honour Judge King SC to two years imprisonment with a non-parole period of one year. On the other hand, Mr Krotiris pleaded not guilty and went to trial.

12. The trial was listed in November 2009 but vacated because Mr Krotiris changed his legal representation. It was then listed again in July 2010 but was vacated because Mr Krotiris was sick. It was listed again in October 2010 but was vacated for a third time because a Crown witness was not available.

13. It came on for hearing before me on 17 January 2011. I heard a voir dire and admitted certain evidence. After admitting that evidence, Mr Krotiris pleaded guilty. He, therefore, pleaded guilty at a very late stage, whereas his co-offender, Mr Schoultz, had pleaded guilty at the earliest available opportunity and was allowed a 25 per cent discount from his sentence by Judge King. I propose to allow Mr Krotiris a discount of something over 5 per cent in respect of his sentence.

14. Mr Krotiris has a bad criminal record. He has served prison sentences for stealing, for possessing implements to break into a car, for having goods in custody. He received a two year prison sentence for supplying prohibited drugs on an ongoing basis. He has been sentenced for break, enter and steal and obtain money by deception. It is a very bad record for a man who is now thirty-four years old.

15. Interestingly, he committed no offences as a juvenile. His offending commenced after he had turned eighteen.

16. Ms Sinosic, who appeared for the prosecutor, pointed to some aggravating features of the crime that I am sentencing Mr Krotiris for. He has a record of previous convictions, including convictions for this sort of crime. The offence was committed in company. It was also committed whilst he was on conditional liberty. She also argued that the offence was planned but I do not take that into account. I think it likely that it would be available but I am not sufficiently satisfied to take it into account against him.

17. It needs also to be borne in mind that Mr Krotiris was not the person who actually entered the unit, it was his co-offender. On the other hand, he has pleaded guilty to the offence.

18. His Honour Judge King found that the same offence, which was also committed by Mr Schoultz, fell within the lower range, as his Honour said at that stage, " of objective seriousness ". I would not use that very expression, nor would I expect his Honour nowadays but I would find that the offence objectively, as compared to other offences, falls within the lower end of the range but, on the other hand, I have to take into account that he has his previous convictions and was on conditional liberty at the time.

19. It is important for a judge in sentencing a person to also take into account their personal circumstances. In this case Mr Flynn of counsel, who appeared for Mr Krotiris, tendered a psychologist's report from Mr Tim Watson-Munro dated 4 April 2011. He also called his client. That report confirmed information given or evidence given by Mr Krotiris that he has had a serious heroin habit for some years. He has been through the Drug Court and been part of the program administered by that Court. He was successful for some time but then relapsed when tragically a woman who was pregnant to his children suffered a miscarriage. When he committed the offence I am sentencing him for and the other offence, he was at that stage of relapse.

20. Mr Schoultz himself was also a heroin addict and both men were obviously behaving in a predatory way, breaking into the property of other members of the community in order to steal things which could be sold to feed their drug habit.

21. Mr Krotiris has struggled with his heroin addiction and, to his credit, has re-established himself on the methadone program at the present stage.

22. Mr Watson-Munro described Mr Krotiris as depressed and anxious, which is hardly surprising given his circumstances and his drug history.

Mr WatsonMunro did note that Mr Krotiris " expressed considerable remorse for his behaviour, which I believe to be genuine." This remorse was confirmed by Mr Krotiris and I take it into account as well.

23. The psychologist noted that he was willing for treatment which can be offered to him and he has commenced contact with an organisation which will assist him in that process of treatment. He has undertaken programs through the Drug Court as well, as I have already said.

24. Mr Flynn argued that this is a case which could warrant an intensive correction order by way of a penalty. He acknowledged that, of course, I had to determine the sentence first because if the sentence was over two years then Mr Krotiris would not be eligible for such a penalty.

25. Given Mr Krotiris' criminal record and the fact that he was on conditional liberty at the time that he committed this offence and was in company, I regard an appropriate penalty as three years imprisonment. I propose to discount that by two months to represent his plea of guilty. That is a period of a little over

5 per cent.

26. Normally a sentence of thirty-four months, which represents two years and ten months, would attract a non-parole period of two years and one month, that is twenty-five months, which is approximately 75 per cent of thirtyfour months. However, I would propose to reduce the non-parole period to eighteen months. It follows from the sentence which I have announced that an intensive correction order is not available as a penalty for Mr Krotiris.

27. There was some evidence and argument over three things which should affect when the sentence starts. The three things were the time that

Mr Krotiris has already served in custody, which may be attributable to this offence, directly or indirectly. The second is a bail condition of curfew for overnight for most of the time, if not all, that he has been on bail. The third was a daily reporting condition.

28. Nothing was put to me from which I could comfortably conclude or be satisfied, even on the balance of probabilities, that time spent in custody by

Mr Krotiris attributable for this offence was anything more than the sixteen days which the prosecution acknowledged could be taken into account. On the other hand, the bail conditions were reasonably onerous, although the curfew was overnight, when one would expect someone to be sleeping.

29. Mr Flynn argued that I should make an allowance of some six months. I regard that as far too much. I propose, however, to - I expect somewhat generously - allow a period of two months for the period he has spent in custody, directly or indirectly attributable to this offence, as well as his onerous bail conditions. Accordingly, I propose to backdate the sentence by two months and I have, I can see, made an error in some calculations and I will allow that in favour of Mr Krotiris. I have actually fixed a non-parole period of sixteen months and I have backdated it by two months and I will give him the benefit of that miscalculation on my part.

HIS HONOUR: All right, I am going to sentence you now, Mr Krotiris.

30. For the crime of stealing property in a dwelling house and taking into account the attempted break, enter and steal with intent to steal, I fix a

non-parole period of one year and four months to commence on 13 March 2011 and to expire on 12 July 2012. The balance of the term will be one year and six months to commence on 13 July 2012 and to expire on 12 January 2014.

31. The overall sentence will be two years and ten months from 13 March 2011 until 12 January 2014. I direct your release on parole on 12 July 2012.

32. Now, two things Ms Sinosic and Mr Flynn. The two things are, first, whether I have got the sums correct, whether the sentences I have announced and the dates are consistent. And, secondly, what conditions of parole I should fix. Thirdly, perhaps I should add, any factual errors or matters which I have not taken into account which I should have or I have taken into account and should not have, which I might be able to correct under section 43 of the Crimes (Sentencing Procedure) Act.

FLYNN: Your Honour, there were two factual errors that I picked up.

HIS HONOUR: Yes, tell me.

FLYNN: Firstly, your Honour said they, referring to both offenders, obtained the ladder. The statement of facts indicates that it was--

HIS HONOUR: You are quite right, it was the co-offender who obtained the

makeshift ladder; you are right.

FLYNN: And the other error that I picked up was a slip, actually, probably; that your Honour indicated that we went to trial 17 January 2010 and, of course, it's 2011.

HIS HONOUR: Thank you. The trial was listed to commence before me

17 January 2011. Thank you.

FLYNN: They're the only two factual issues and as far as the mathematics and calculations, my solicitor tells me they are correct, your Honour.

HIS HONOUR: Okay. Ms Sinosic?

SINOSIC: I believe that's correct and I am sure your Honour would formally

convict the offender.

HIS HONOUR: Thank you, I do. I thank you for reminding me.

33. I convict Mr Krotiris of the offence of stealing property in a dwelling house.

SINOSIC: Your Honour, I understand that the agreed facts don't actually refer to this offender's role. Does your Honour wish to make - I think my friend and I both indicated that he was willing and able to assist.

HIS HONOUR: Oh well, he has pleaded guilty to the offence.

SINOSIC: Yes.

HIS HONOUR: So that carries with it an admission of being there.

SINOSIC: If your Honour's satisfied with that, I won't take it any further.

HIS HONOUR: Yes. Mr Flynn, your client admits, I assume, that he was willing and able to assist the primary offender, or Mr Schoultz?

FLYNN: Well, it's silent but the assistance was, as I understand it--

HIS HONOUR: Being available.

FLYNN: --being available.

HIS HONOUR: Outside.

FLYNN: It goes no further than that.

HIS HONOUR: Yes, I have taken that into account, that that was the level of his assistance. That was reflected in my comment about him not being on the inside.

All right, now what about conditions of his parole, please?

SINOSIC: There's obviously the standard conditions.

HIS HONOUR: Yes, there will be standard conditions of good behaviour but does he need supervision?

SINOSIC: Your Honour, the Crown would be asking that there be--

HIS HONOUR: See, he's got a year and six months on parole.

SINOSIC: That the supervision of Probation and Parole Service, in order to assist him with his rehabilitation in relation to drugs.

HIS HONOUR: Yes, I'll do that. Mr Flynn?

FLYNN: Nothing. I don't respond to that, your Honour.

HIS HONOUR: Okay.

34. The conditions of parole are these:

(1) That he be of good behaviour;

(2) That he attend court, if called upon to do so;

(3) That he notify the Office of the Probation and Parole Service of any change in his residential address during the period of parole;

(4) That he accept supervision from the Probation and Parole Service, including any reasonable recommendations and directions which they may give with particular reference to drug rehabilitation.

35. I give the exhibits, including the voir dire exhibits, to my associate to put on the file, including the MFI's and the transcript.

Does your client want a short amount of time with his mother before--

FLYNN: Yes, your Honour.

HIS HONOUR: Not too long. The Corrective Services are here for a purpose. He is not to leave the courtroom but if he wants a minute or two with his mother, then I'll allow that.

FLYNN: Please the court.

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Decision last updated: 29 August 2011