R v Stewart

[2018] NSWDC 170

District Court

New South Wales

Medium Neutral Citation:	R v Stewart [2018] NSWDC 170
Hearing dates:	2 July 2018
Date of orders:	02 July 2018
Decision date:	02 July 2018
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate sentence of imprisonment of 3 years with a non-parole period of 18 months: at [19].
Catchwords:	CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence — Larceny SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions — Financial gain SENTENCING — Mitigating factors — Plea of guilty — Injury, harm, loss or damage not substantial SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — General principles — Purposes of sentencing SENTENCING — Subjective considerations on sentence — Age of offender — Drug addiction — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 R v Ponfield (1999) 48 NSWLR 327
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown)   Thomas Stewart (Offender)
Representation:	Ms F Bitcon (Crown)   Mr R Kozanecki (Offender)
File Number(s):	2018/226160

Judgment

1. A young man who is only 23, from a good family, with hardworking parents who gave him a good education. Sadly, like so many young men in Sydney these days, he was to lured into drug use, leading to him appearing for sentence today for further offences of dishonesty beyond those for which he is already serving terms of imprisonment.

2. He pleaded guilty to one count under s 112(2) of the Crimes Act 1900, of aggravated entering with intent, which carries a maximum penalty of 14 years and no standard non-parole period, and one count of larceny under s 117 of the Crimes Act 1900 which carries a five year maximum penalty. To be dealt with on a Form 1 (attached to the s (112(2) offence) , in the way mandated by the Chief Justice in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 are five counts of dishonesty obtain property deception.

3. As Mr Kozanecki helpfully indicated at the outset of the proceedings the issues in the sentencing exercise are largely concerned with the term of imprisonment to be served and the commencement date given the complications to which I will refer. It is therefore unnecessary to consider any alternative forms of punishment as Mr Kozanecki concedes that the s 5 (Crimes (Sentencing Procedure) Act 1999) threshold has been surmounted.

4. On the evening of 17 April 2017 the victim of these crimes, Phillipa Turner, left her handbag in the kitchen area of her home at Curl Curl. Sometime between 11.30pm and 5.20am that night the offender entered the residence and stole an Apple laptop, a handbag, a wallet containing some cash and credit cards and he then used the credit cards to buy food and pay for taxis. The following morning the victim discovered the theft.

5. The offender’s phone contained a message sent to an associate saying “I need to get rid of another lappy” presumably referring to the laptop that had been taken, and shortly after that he photographed himself holding a number of $50 notes. He is then seen jumping the barrier of Hurstville station and he was woken up by police while on the train.

6. Police executed a search warrant of his premises in Wollongong on 4 May and on 9 May they recovered the messages that are referred to in the agreed facts on examining his phone. On 25 July he was arrested at the MRRC. He declined to comment on these matters.

7. He had been in custody it seems since being arrested on 9 May for various counts of dishonestly obtain property by deception, which led to an aggregate sentence of 16 months imprisonment being imposed.

8. His record commences in 2013 and extends over 13 pages of almost exclusively offences of dishonesty and dealing in property. His evidence before me today explains, but does not excuse, why such a young man who was given a good start in life by his parents finds himself in this predicament.

9. He says he left Balgowlah Boys High School at the end of Year 10 and did two years of a bricklayer’s apprenticeship. He then unfortunately got onto drugs. His last job before going into custody was as a brickies labourer. He had been taking ice since about 18. He was lured into it by friends and he was addicted around age 18 and 19. Sadly his relationship with his parents was not good and they asked him to leave home at age 15. His contact with them has been infrequent and they have visited him twice in custody over the last two years but they write to him regularly. I accept that most recently he has received a written lecture from his father about how he could turn his life around and make some useful contribution to society upon his ultimate release.

10. He says he had been taking ice every day for about six weeks, around the time of this offending. He said he would like to apologise to the victim because he knew that it was the wrong thing to do.

11. He has taken steps towards rehabilitation by way of completing the EQUIPS program, the Wayback program and working as a welder while at John Hunter Correctional Centre. He recognises the need to rehabilitate himself, to get a job and to better his life.

12. His first term of imprisonment was a two month sentence for a larceny offence in January 2015. He also served seven months imprisonment for escaping police custody concurrently with that first sentence, and two years and three months for a robbery in company commencing 1 March 2015. As I indicated earlier there was a three years and six month sentence commencing 1 March 2016 for aggravated break and enter, followed by a term of imprisonment of four months for a breach of bond imposed for damaging property in 2017. It is common ground that his earliest possible release date will be 10 September 2019. For these offences, taking in to account the questions of totality and accumulation the term of imprisonment that I propose will commence on 10 September 2018.

13. Mr Kozanecki does not cavil with the Crown’s characterisation of the offending as being below mid-range given the larceny was a fairly limited nature and the value of the items was relatively low and easily replaceable.

14. As the Crown puts the guideline judgment of R v Ponfield (1999) 48 NSWLR 327 is of limited assistance and it more relevant to turn to s 21A of the Crimes (Sentence Procedure) Act 1999 factors. The aggravating matters include the offender’s prior convictions, the fact that he was on conditional liberty, indeed the offending was shortly after his entering into parole for another break and enter offence, and the offence was committed for financial gain given that he used the credit card to purchase drugs and other items.

15. The Crown concedes as a mitigating factor that the loss was not substantial and that by reason of his plea of guilty he should receive 25% discount for the utilitarian value of the plea.

16. The Crown quite rightly highlights that in considering the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999. I need to take account of general and specific deterrence given the escalation in offending by this young man, and the need to recognise that people are entitled to feel safe in their home from robberies and crimes such as this.

17. Mr Kozanecki asks that he be treated, in effect, as a relatively young offender and to find special circumstances, and to recommend referral to the Compulsory Drug Treatment Correctional Centre, which I will do.

18. As I have indicated the offences all arise out of one episode of criminality and it is appropriate to run the sentences concurrently.

19. The orders I make are:

1. The offender is convicted of each offence.

2. The indicative sentences are:

1. Sequence 008, taking into account the Form 1 matters: 3 years;

2. Sequence 009: 1 year.

3. I impose an aggregate sentence of imprisonment of 3 years to commence on 10 September 2018 and expiring on 9 September 2021.

4. I impose a non-parole period of 18 months, expiring on 9 March 2020. The offender is eligible for release to parole on that date.

5. I find special circumstances.

6. I refer the matter to the Drug Court – Compulsory Drug Treatment Correctional Centre.

Note – These extempore remarks were revised without access to the court file

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Decision last updated: 14 April 2020