R v Szenczy

[2022] NSWDC 657

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Szenczy [2022] NSWDC 657

Hearing dates:

17/12/21, 11/2/22

Date of orders:

11/2/22

Decision date:

11 February 2022

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 3 years 6 months with a NPP of 2 years 2 months (6/8/21-5/10/23). I find special circumstances.

The indicative sentences are (25 percent discount for plea taken into account):

Seq 1 Take and drive conveyance – 15 months (Form 1 taken into account).

Seq 5 Shoplifting – 6 months

Seq 10 Police pursuit – 18 months

Seq 18 AOABH – 12 months

Seq 20 Steal from person – 15 months

In relation to the matter on the s166 certificate (Seq 11 Drive whilst disqualified) – s10 conviction but no other penalty. Automatic 12 months license disqualification to date from today.

In relation to the Seq 10 Police pursuit matter, I impose the automatic license disqualification period of 5 years to date from today.

Catchwords:

Crime – Sentence – Take and drive conveyance – Shoplifting – Police pursuit – AOABH – Steal from person

Legislation Cited:

Criminal Procedure Act 1986

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Cases Cited:

R v Hua (2002) NSWCCA 384

Category:

Sentence

Parties:

NSW DPP – Crown
Christopher Szenczy - Offender

Representation:

Ms L Robeau for Crown
Mr T Ramrakha for Offender

File Number(s):

21/8771

sentence

1. Mr Szenczy is for sentence on five offences which are as follows. Sequence 1 offence, which is one of take and drive a conveyance without consent. The maximum penalty for that offence is five years imprisonment. The next offence is sequence 5 of shoplifting, which carries a maximum penalty of five years imprisonment. The next offence is a sequence 10 offence of failing to stop when directed by police, and engaging in a police pursuit involving driving a vehicle recklessly and at a speed or manner dangerous. The maximum penalty for that offence being five years imprisonment. The sequence 18 offence, which is the one of assault occasioning actual bodily harm, which carries a maximum penalty of five years imprisonment, and the sequence 20 offence of steal from the person, which carries a maximum penalty of 14 years imprisonment. I note that none of the offences attract standard non-parole periods.

2. In addition, in sentencing him for the sequence 1, take and drive offence, I have been asked to and I will take into account on a Form 1 document, a further four offences, being sequence 2, drive whilst disqualified, sequence 4, which is larceny, sequence 6, which is another larceny, and sequence 17, which is another larceny.

3. In addition, I am asked to deal with Mr Szenczy on a further offence of drive disqualified, which is on a s 166 Criminal Procedure Act 1986 Certificate.

4. The maximum penalties to which I have made reference are, of course, important guides or yardsticks in the sentencing exercise to which I have had regard. The offender pleaded guilty at the earliest opportunity and I will allow a 25% discount by reason of the utilitarian value of that plea.

FACTS

5. Turning then to factual matters. The facts are agreed and essentially, are as follows, restated by me in terms of form but not substance. The first offence, being the sequence 1, take and drive offence, was committed on 24 October 2020. In the afternoon of that day, the offender’s grandfather parked his Hyundai i30 vehicle in his driveway at South Penrith and put the keys in the kitchen. At that time, the offender was at his grandfather’s house collecting some clothes. At about 6pm that evening, the offender took the keys and drove away with the vehicle. It was not until the next morning that the owner discovered that the Hyundai was no longer in the drive.

6. In sentencing him for this offence, I will take into account the four additional offences to which the offender admits his guilt, and which have been placed on the Form 1, to which I referred earlier.

7. The facts relating to those matters will all be referred to, along with the facts of the substantive offences before the Court, in order of chronology, as I go through the facts.

8. The sequence 2 offence, which is one of those to be dealt with on the Form 1, is an offence of drive disqualified, which arises because at the time of taking the Hyundai, the offender was a disqualified driver.

9. The sequence 17 offence, which is also on the Form 1, is an offence of larceny of car registration plates. At about 1.10am on 26 October 2020, the offender stole numberplates commencing with the letters DWM from a vehicle that was owned by Ms Clarke, and which was parked in her driveway at Glenmore Park. The offender then swapped those DWM plates with those on his grandfather’s Hyundai, placing the plates from the Hyundai onto Ms Clarke’s vehicle, before driving off in the Hyundai.

10. The next offences in time are those that are set out in sequence 18, an offence of assault occasioning actual bodily harm, and sequence 20, which is an offence of steal from the person. Those offences occurred on 27 October 2020, when the offender and a female co-offender, were found in the dock area at the Bunnings store at Kingsgrove. It was about 7.10pm that Bunnings employee, Ms Uhi, saw the offender and his co-offender walk into the dock area with a trolley full of stock. She stopped them and said, “Sorry, you can’t be in here,” to which the female co-offender said that they were wanting to leave via the back gate of the dock. However, as Ms Uhi suspected that a theft was occurring, she took hold of the trolley and pulled it towards herself. The two offenders, however, kept hold of the trolley and tried to pull it back, leading to Ms Uhi letting go when she saw this offender walking towards her with his “chest puffed out.”

11. At that time, the offender was holding in his hands a rotary tool which was still in its packaging, and Ms Uhi stepped back as she was concerned the offender would hit her with the tool. At this point, another Bunnings employee, Mr Awadalla stepped in front of Ms Uhi to protect her and pushed the offender away, causing him to fall over. Ms Uhi then took a hold of the trolley again, after which the female co-offender pushed Mr Awadalla in the chest. The offender then stood up and swung the packaged rotary tool at Mr Awadalla’s face, upon which Mr Awadalla hit the offender “a few times,” following which the offender said, “I’ve got a knife, I’ve got a knife,” and also, “I’m going to sue you,” and, “I’m going to pull a knife.”

12. The offender threw punches at Mr Awadalla and the co-offender pulled the trolley out of the dock area and into the street. After punching Mr Awadalla a number of times, the offender picked up the rotary tool and another item and started to run out. He was followed by Mr Awadalla who tried to punch the offender, after which the offender dropped the rotary tool and followed his co‑offender who was placing the stolen items into the Hyundai, which at that time had Ms Clarke’s DWM plates on it, and they drove off.

13. The facts record that around this time, Ms Uhi suffered a panic attack which no doubt was triggered by the offence that she I have just described. Arising from the offender’s actions, Mr Awadalla suffered a bruise and some bleeding under his left eye. When police attended, they seized the rotary tool box, and some sunglasses and bank and Medicare cards that had been dropped by the offender.

14. Turning then to the sequence 4 offence, which involved the larceny of the numberplates commencing with the letters DHA. This is an offence to be dealt with on a Form 1, and occurred two days after the events at Bunnings. In other words, on 29 October 2020. On that day, a Ms Mulvey drove her grey Hyundai i30 to the Southlands shopping centre in Penrith, where she parked it. However, when she returned to the car, she noticed that the registration plates had been changed and that the DWM plates, which had been stolen from Ms Clarke’s vehicle a few days earlier, were now on Ms Mulvey’s car. It is an agreed fact that at some time between the afternoon of 28 October and the afternoon of 29 October 2020, the offender stole the numberplates from Ms Mulvey’s Hyundai and replaced them with DWM plates that had been earlier stolen from Ms Clarke’s vehicle.

15. Turning to the sequence 5 offence. This offence occurred on 30 October 2020. On the afternoon of that day, the offender and co-offender drove into the carpark of Macquarie shopping centre in the silver Hyundai i30 that the offender had taken from his grandfather. The car at that stage was displaying Ms Mulvey’s DHA plates. The two offenders then entered the Myer store where the offender picked up the following items: a black Lacoste jacket priced at $299, an Adidas backpack priced at $45, and a Bose speaker priced at $999. Around the same time, the co-offender picked up a box of Tommy Hilfiger underwear priced at $99.95 and a Ben Sherman brand wallet priced at $89.95. The two offenders then left the store without paying. The total value of the property taken was $1,532.90. The two offenders then returned to the silver Hyundai and drove off, which brings me to the sequence 6 offence, which is to be dealt with on a Form 1, and is another offence of larceny.

16. On 30 October 2020, in other words, the same day as I was just referring to, a silver Hyundai with registration plates commencing with the letters DXO owned by Mr Cooper of Manly, was parked outside his premises. However, some time between 7pm on 30 October and 12.15am on 31 October 2020, the offender stole the DXO numberplates from Mr Cooper’s vehicle, and effectively swapped them with the DHA plates that he had earlier stolen from Ms Mulvey’s Hyundai.

17. That brings me then to the sequence 10 offence under s 51B of the Crimes Act 1900. On 31 October 2020 at about 12.15am, the offender was driving the silver Hyundai with the DXO plates belonging to Mr Cooper of Manly, in Dee Why, when he was signalled to pull over for a random breath test. Although he failed to do so, police were unable to pursue the vehicle at that time, however, at about 12.18am, in other words, about three minutes later, police saw the vehicle turn onto Manly Road and followed it. At the time, police observed that the Hyundai was being driven well above the speed limit, and at a speed of around 90 to 100 kilometres per hour. A police vehicle approached the Hyundai and activated its lights and sirens, however the offender turned off the car lights, and accelerated away, increasing speed to around 100 kilometres per hour.

18. Although the facts are silent as to the signposted speed limit, they do note that a sign with flashing lights on Spit Road displayed an advisory speed of 35 kilometres per hour, whereas the Hyundai used all three lanes to negotiate the bend which, implicitly, it did at some speed. The facts note that as the Hyundai approached the next bend on Spit Road, it straddled two lanes and was travelling at an estimated 75 kilometres per hour. Although the police continued for a time to pursue the car, this pursuit was called off when the car was seen to move onto the wrong side of Warringah Road.

19. It was at this point that police deactivated lights and sirens and slowed down, intending to stop. The Hyundai, however, driven by the offender, continued on for about 80 metres, before colliding with a Land Rover which was being driven in the opposite direction by a Mr Harvey. In the course of this collision, the rear wheels of the Hyundai were dislodged and spun anti‑clockwise while the rear of the vehicle collided with a power pole, knocking it over, after which the Hyundai continued on and knocked over a pole displaying a street name, “Stanton Lane.” The co-offender jumped out of the Hyundai and ran down Stanton Lane, before being caught by the police, and was taken to Royal Northshore Hospital. The offender also got out of the vehicle, running down Spit Road, but was not apprehended at that time.

20. Police made measurements of part of the route driven by the offender, between Manly Road and Spit Road, and calculated an average speed of 89.63 kilometres per hour, in an area which, to the Court’s understanding, has a signposted limit of 60 kilometres per hour. As a result of the impact from the Hyundai, Mr Harvey felt tightness in his neck and shoulders.

21. Police subsequently searched the Hyundai and found numerous items to a total value of $2930, which had been stolen from Bunnings, as well as numerous identification documents belonging to the offender.

22. The offender’s fingerprints were found on the DHA numberplates belonging to Ms Mulvey, and DNA taken from sunglasses left at Bunnings was such that the offender could not be excluded as a contributor. Also, his DNA was detected in blood found on the rotary tool that was left at Bunnings. The offender was arrested on 6 January 2021 and has been in custody since that time.

OBJECTIVE SERIOUSNESS

23. I turn then to consider the objective seriousness of the various offences. I start with the sequence 1, take and drive offence. This offence involved the offender taking and driving his grandfather’s Hyundai after taking the keys without permission. It was not a fleeting offence, but one in which the offender continued to use the vehicle for about seven days, before it was ultimately damaged in a collision. It was submitted by the Crown that the offender took the vehicle as part of an ongoing attempt to acquire money to pay for drugs, based on the offender’s statement to Dr Ellis, which Dr Ellis summarised in the following terms:

“At the time he needed money to pay for drugs. He said that he entered his “self-destruct mode” and thought, “Fuck it.” This led to him stealing his grandfather’s car as the first act in acquiring goods for himself and his partner.”

24. While I take this into account, I do not conclude that at the time of taking the car, the offender had in mind any particular course of conduct, and especially not the course of subsequent conduct that is set out in the agreed facts. Nonetheless, I am satisfied that in taking the car, the offender intended to use it to assist him in acquiring drugs in any way that he could. I have therefore taken care to ensure that I do not double count in my assessment of this sequence 1 offence by taking into account the various other offences committed while the offender was in possession of the vehicle. However, the fact that the offender admits that he took the vehicle for criminal purposes is a matter that increases its objective seriousness, when compared, for example, with a situation where a vehicle was taken merely to obtain transportation.

25. The offence was, however, as counsel for the offender submitted, opportunistic and not planned. I also take into account that the vehicle was seriously damaged, probably written off, although again, I have been careful to avoid double counting, given that he needs to be separately sentenced for the police pursuit matter.

26. I assess the objective seriousness of the sequence 1 offence as being just below the mid-range.

27. I turn then to the objective seriousness of the sequence 5 offence, which is an offence of larceny, stealing from the Myer store. This offence involved the theft by the offender and his co-offender of property to the value of $1532.90, being the sale price of the items stolen from Myer. As the Crown submitted, it is a fairly typical example of this type of offence. The value of the items stolen, however, was fairly substantial. There do not appear to be any features which aggravate the objective seriousness of the offence, which I assess as being below the mid-range, but not in the low range.

28. Turning to the sequence 10, police pursuit offence. As the Crown submitted, this offence involved the following aspects: the offender drove dangerously after being signalled to pull over, that dangerousness being demonstrated in the following ways. Firstly, he drive well over the speed limit of 60 kilometres per hour, namely at 90-100 kilometres per hour. Secondly, when police turned on their lights and sirens, the offender turned off the tail lights of the vehicle and drove up the hill at a speed of approximately 100 kilometres per hour. He then drove around a bend, using all three lanes, then drove around a second bend, straddling two lanes at a speed of about 75 kilometres per hour, after which he drove onto the wrong side of the road, and collided with a vehicle which was driving in the opposite direction on the correct side of the road. After this, the vehicle he was driving collided with a street light pole, knocking it over and causing the vehicle to spin clockwise, mount the western curb and impact with a street sign, which was also knocked over. Furthermore, after that, the offender jumped out of the vehicle and effectively fled, escaping what would otherwise have been his arrest.

29. While there were no fatalities or serious injuries caused to innocent people, that was only a matter of good luck. This was a relatively serious example of this type of offence, in my view, and I place it within the mid-range of objective seriousness.

30. Turning to the sequence 18 offence of assault occasioning actual bodily harm. This offence involved the offender swinging a metal tool in its packaging at the victim, and then punching him, resulting in a bruise and some bleeding under his left eye. The fact that the offender swung the packaged tool at the victim and also told the victim that he was going to “pull a knife” are matters relevant to the seriousness of the offence as they would no doubt have magnified the fears that the victim would have experienced during the incident. While the offence was also committed in the company of his co-offender, the offender is not charged with the aggravated “in company” offence in s 59(2), and so, I disregard this aspect in considering objective seriousness.

31. The injuries to the victim were, as the Crown conceded, at the lower end of the scale of actual bodily harm. In my view, the objective seriousness lies below the mid-range but not in the low range.

32. Turning then to the sequence 20 offence of steal from the person, that being the offence involving Ms Uhi at Bunnings. This offence involved the offender stealing a trolley full of items from the Bunnings employee Ms Uhi, who had momentarily seized the trolley before it was pulled away from her. The offender then walked towards Ms Uhi aggressively, which seems to have coincided with her abandoning her attempts to secure the item. Hhowever, I note that in oral submissions, the Crown indicated that it did not rely on the evidence of the offender advancing towards Ms Uhi with his chest puffed out, or the fact that he might have been holding the rotary tool, and so I put these aspects aside. Also, it is argued by the Crown that this offence is aggravated by reason of being committed in company. Detailed submissions were made about this aspect, and counsel for the offender argued that taking this aspect into account would involve De Simoni error because it may take the offence into the area covered by the offence of “robbery in company”, which attracts a higher maximum penalty.

33. The Crown argued, however, that no De Simoni error would be involved, given that there is no “more serious offence” such as “steal from the person in company”.

34. I have considered the submissions and the cases that were referred to, and in this regard I note that further submissions were provided to me by agreement, by both parties, after the adjournment of the proceedings in December of last year. I have had regard to those materials.

35. It has been said that ,”Too much should not be made of the distinction between steal from the person and robbery”: R v Hua (2002) NSWCCA 384 at para 17. Nonetheless, it seems to me that there would be a serious risk of De Simoni error for me to take into account as an aggravating factor that the stealing from the person in this case took place “in company”. The risk is that such a finding, when combined with the potential of the offender’s actions to have put the victim in fear of violence, might amount to sentencing the offender for the more serious offence of robbery in company. In assessing the objective seriousness of this offence, therefore, I leave aside the fact that the offender was in company.

24. It was further argued that this offence is aggravated for the purposes of s 21A(2)(l) in that the victim was vulnerable as an employee working in a customer facing role and in an isolated part of the warehouse. I have considered this argument, but first of all, the agreed facts do not suggest that at the time of the offence, the victim was working in a “customer facing role”. Rather, and as the facts indicate, the victim was in an area where the public were not supposed to go. As to the suggestion that the victim was “vulnerable”, as she was in an isolated part of the warehouse, I do not consider that this is enough to bring the facts within the sort of aggravating factor contemplated by para (l) of s 21A(2). Having regard to the various matters I have noted, I assess the objective seriousness of this offence as being below the mid-range but not in the low range.

25. While not relevant to the objective seriousness of any of the offences, I note that at the time of these offences, the offender was subject to conditional liberty by reason of a suspended 18 month prison term that was imposed by the Drug Court on 23 September 2020, for offences involving shoplifting, larceny, and possessing a mobile phone in a place of detention.

26. The offences before the Court today were committed only about a month after that sentence was imposed. As the Crown submitted, the offender’s overall criminality is increased, and his rehabilitation prospects are diminished by not only the fact that he was subject to this conditional liberty, but also because the earlier suspended sentence involved offences similar to those before the Court, or at least similar to some of them.

SUBJECTIVE MATTERS

39. Turning then to subjective matters relating to Mr Szenczy himself. The offender is now 32 years old. His subjective case has been placed before the Court, mainly by means of a report of forensic psychiatrist Dr Ellis. According to his self-report to Dr Ellis, the offender is an only child of his parents who separated shortly after his birth. He was raised by his paternal grandmother until the age of six and then lived with his mother until about age 14, when he returned to his maternal grandmother. While living with his mother and step‑father, he witnessed significant domestic violence and was also the subject of some violence at the hands of his step-father. He was expelled from high school for using cannabis at age 14, and it was after this that he returned to live with his maternal grandmother.

40. The offender commenced using cannabis at about age 14, and was binge drinking at age 18, and reported becoming addicted to Oxycontin and Fentanyl at age 21, which he says arose from the use of those drugs to manage a back injury, for which he had surgery.

41. From about age 23, his drug of choice became ice, which he would inject. He has never engaged in any formal drug or alcohol rehabilitation or counselling.

42. In relation to the offences, he told Dr Ellis that he had been released from custody on 23 September 2020, in other words, about four weeks before the first offence before the Court, and was supposed to be living with his maternal grandmother, but in fact, reconnected with his partner, in other words, his co‑offender in some of these offences, who was also an ice user, and that they were each using up to 3.5 grams of ice per day.

43. The offender told Dr Ellis in relation to the offences that he entered his “self-destruct mode”, and thought, “fuck it,” and that this led to him taking his grandfather’s car as a first act in acquiring goods for himself and his partner. He also told Dr Ellis that he would steal numberplates so as to make it harder to be tracked down when he absconded without paying for fuel.

44. He also told Dr Ellis that “when I am high, I don’t care what I do, I care later,” and related this attitude to his reactions when confronted by staff at Bunnings. He reported that when his partner told him that the police were coming up behind them, he felt like his adrenaline was pumping and was not thinking about the possible consequences.

45. Dr Ellis concluded that the offender showed no signs of formal thought disorder, delusions, hallucinations or depressive thinking. He did conclude, however, that the offender has a severe substance use disorder, which is currently in early remission in the controlled custodial environment in which the offender currently resides.

REMORSE

46. I turn to the question of remorse. I note that the offender did not give evidence but I accept that there is some evidence of remorse in this case. Dr Ellis reports that the offender was “able to identify general harm caused by his actions in committing offences, and in particular, to his grandfather, who had lost his car and trust in his grandson.” There is also the offender’s letter to the Court in which he says he takes responsibility for his offences and is seeing things more clearly since being in custody and being placed on mental health medication. The weight to be given to all of this evidence is reduced, by reason that the offender gave no evidence. However, as I said, I accept that there is at least some degree of remorse.

REHABILITATION AND FUTURE RISK

47. I have also considered the prospects of the offender’s rehabilitation and his future risk. The offender’s future risk of offending and his prospects of rehabilitation must be looked at in the light of a number of matters. First, his criminal history commenced in about 2009, when he was aged 20. Since then, he has multiple convictions, including for stealing, assault, take and drive, drive disqualified, engage in police pursuit, obtain property by deception, having possession of goods suspected of being stolen or otherwise unlawfully obtained, possessing a knife, drug possession and aggravated break, enter and steal. He has been imprisoned a number of times for some of these offences, and in late 2020, he also had the benefit of being admitted and released to the Drug Court Program. The offences before the Court today were committed only one month after the suspended sentence of 23 September 2020.

48. He has been on workers compensation payments since suffering a back injury in 2011 and had no permanent place of residence at the time of the offending. According to Dr Ellis, he has a severe substance use disorder, and still reports cravings for drugs. He also has some mental health problems. On the positive side, Dr Ellis says that he reports no current active attitudes supportive of crime or violence, or negative attitudes towards supervision. He also told Dr Ellis that he has an intention to cooperate with rehabilitative efforts, and has recently been receiving opioid replacement therapy. Ultimately, Dr Ellis concluded that the offender’s risk of reoffending could be moderated if he remains drug dree and engages with assertive case management and rehabilitation. I agree with this view. The question, however, is whether the offender has the maturity and strength of character to avoid drugs and follow through with his treatment on release.

49. Having considered the various matters I have noted, I am unable to come to a positive view of his prospects, which are very guarded and in my opinion, his risk of reoffending remains relatively high.

THE COVID PANDEMIC

50. In sentencing the offender, I have also taken into account that his period of recent imprisonment and his future imprisonment has occurred during the restrictions and difficulties associated with the COVID pandemic. While it has been said by the Court of Criminal Appeal that the effects of that pandemic should not be overestimated, I do accept, based on my own knowledge of the effects in prisons generally, that those effects are likely to have been fairly substantial, and are likely to continue to involve considerable hardship, beyond that which would ordinarily apply in a custodial environment.

51. In sentencing for the take and drive offence, I will take into account the four matters on the Form 1 document, which in my view increase the need for the sentence to reflect personal deterrence and the community’s entitlement to extract retribution.

PARITY

52. There is a parity issue, also that I have given consideration to. This arises from the fact that on 29 September 2021, the offender’s co‑offender, Ms Asasi was sentenced in the Local Court for a number of offences, including some of those committed jointly with this offender, and received an aggregate term of 20 months, with a non-parole period of 12 months.

53. The parties also provided to the Court an agreed document setting out offences in common between Ms Asasi and this offender. I have had regard to this material and the outcome in the Local Court. However, in my view the material does not raise a “strict” parity situation, given that Ms Asasi was dealt with in a different jurisdiction, and given that the offences for which she was being sentenced were not the same as those that I am dealing with, albeit that there are some offences in common. As I have said, I have had regard to the material relating to Ms Asasi but I do not consider that parity is a matter that looms large, given the differences between the two situations.

TOTALITY

54. I have had regard to totality principles in determining not only the ultimate aggregate sentence that I will impose, but also the commencement date for that sentence. I have found this a difficult and complicated exercise. The complication arises from the fact that on 21 May 2021, the offender was sentenced by the Drug Court to an aggregate head sentence of three years, nine months, with a non-parole period of two years, three months, dating from 20 November 2020, for in excess of 20 offences, some of which are not unlike those before the Court today. Those offences were committed on various days between about September 2019 and January 2021. The offender is currently eligible for release on parole for those offences on 28 February 2023.

55. In addition, on 7 July 2021, he was sentenced to a fixed term of six months for a further shoplifting offence, with that sentence being made completely concurrent with the Drug Court sentence.

56. The offences before the Court today were all committed in October 2020. In other words, around the middle of the period of offending for which the Drug Court sentenced him. It was argued before me on the offender’s behalf that if the charges before the Court today had been certified more quickly, then the offender might have had the benefit of having these matters dealt with at the same time as the matters in the Drug Court, and that he had effectively “missed the boat” and might be disadvantaged unless careful consideration is given to this aspect.

57. I have considered this issue carefully and it is a matter that makes this, as I have said, a difficult sentencing exercise, and one that involves a degree of speculation as to what might have happened if all matters had been dealt with at the same time. It is of fundamental importance, of course, that the ultimate sentence that I impose appropriately reflect the various purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999, but that, in accordance with totality principles, the overall sentence not be an overwhelming or crushing one, either on its own or when taken together with the existing sentences that the offender is currently serving.

58. In my best attempts to achieve that outcome, I have paid attention not only to what the overall aggregate head sentence and non-parole period should be, but importantly, from what date the sentence should commence.

59. The offender was arrested on the current matters on 6 January 2021, and has remained in custody since that time, however, that custody has not been solely due to the matters before the Court today, but also due to the sentence imposed in the Drug Court on 21 May 2021, which dates from 30 November 2020, and his custody has also been due to the fixed term of six months, which dates from 7 July 2021, when it was imposed by the Local Court. As I have said, I have given close consideration to all of those matters.

DETERMINATION

60. I am satisfied that in relation to each of the offences, the only appropriate penalty is one of full time imprisonment. I convict the offender of each of the five offences before the Court. As I have said, I intend to impose an aggregate sentence. In those circumstances, I am required to set out the indicative sentences after the application of the 25% discount for plea of guilty, and I therefore will do that.

61. Mr Szenczy, the sentences I am about to refer to are what are called indicative sentences, which are a concept you may be familiar with, but they are not the actual sentence that I will impose, that will be announced at the end.

62. The indicative sentences are as follows. For the sequence 1 offence, taking into account also the four matters on the Form 1, this is the take and drive offence, the indicative sentence is one of 15 months imprisonment. For the sequence 5 shoplifting at Myer offence, the indicative sentence is six months imprisonment. For the sequence 10, police pursuit mater, the indicative sentence is 18 months imprisonment. For the sequence 18, assault occasioning actual bodily harm, the indicative is 12 months, and for the sequence 20, steal from the person offence, the indicative sentence is 15 months imprisonment.

63. Rather than imposing those sentences or the totality of them, I will impose an aggregate head sentence of three years, six months, and I nominate a non-parole period of two years, two months. I have made a finding of special circumstances, based on the risk of the offender becoming institutionalised.

64. As I have said, I have given careful consideration to the date from which that sentence should operate, that being a very important matter in this particular case. I direct that the sentence commence from 6 August 2021, in other words, seven months after the offender’s arrest on these matters. In those circumstances, the head sentence will expire on 5 February 2025, and the non-parole period will expire on 5 October 2023.

65. In relation to the matter on the s 166 certificate, drive disqualified, I deal with that as follows. Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, I convict the offender but I impose no other penalty, having regard to the aggregate sentence that he will be serving. I impose, however, the automatic disqualification period of 12 months which will date from today.

66. On the police pursuit matter, sequence 10, I impose the automatic disqualification period of five years, which will date from today also. Of course, those periods of disqualification will not commence to run until the offender is released from custody.

67. So, Mr Szenczy, you, according to the orders I have made, will be eligible for release on parole on 5 October 2023, do you understand? I think I can see you are nodding your head. That will depend, of course, upon your behaviour, and cooperation in custody, which I hope will be good. Ms Crown, Mr Ramraka, anything to raise?

68. RAMRAKA: No, your Honour, thank you.

69. ROBEAU: No, your Honour.

**********

Amendments

17 January 2023 - Name of legislation corrected in paragraph 17.

Decision last updated: 17 January 2023