R v Tariq McDonald

[2009] NSWDC 330

CITATION:	R v Tariq McDonald [2009] NSWDC 330 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	25 September 2009
JUDGMENT DATE:	25 September 2009
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Knox SC DCJ
DECISION:	On count 1, the offender is sentenced to a non-parole period of 12 months imprisonment commencing on 20 March 2011 and expiring on 20 March 2012. On count 2, the offender is sentenced to a non-parole period of 3 years and 4 months imprisonment commencing on 20 November 2007 and expiring on 19 March 2011 with an additional term of 2 years and 8 months (expiring on 19 November 2013). On courts 3 and 4, the offender is sentenced to a fixed term of 12 months imprisonment commencing on 20 November 2007 and expiring on 19 November 2008. The sentences on counts 2, 3 and 4 are to be served concurrently. The sentences reflect a finding of special circumstances of the order of 72%. The offender is to be released to parole on 20 March 2012.
CATCHWORDS:	ATM shopping centre - Aggravated break and enter - Planning involved - Principles to be applied
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	R v Anderson [2004] NSWCCA 39 R v BB [2005] NSWCCA 215 R v Ceissman [2004] NSWCCA 466 R v Chen [2004] NSWCCA 369 R v Crowe [2002] NSWCCA 245 R v Dodd [2004] NSWCCA 374 R v Douglas [2006] NSWCCA 94 R v Huynh [2005] NSWCCA 220 R v Roberts [2005] NSWCCA 401 R v Warren [2003] NSWCCA 366 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
PARTIES:	The Crown Mr Tariq McDonald
FILE NUMBER(S):	DC 2008/16100
COUNSEL:	Ms Davis - Crown Mr Brewer - Offender
SOLICITORS:	NSW DPP

SENTENCE

1 HIS HONOUR: The offender, Tariq McDonald, appears for sentence on four matters. I am informed that this is the fourth occasion that the matter has come before the court and that it has not been dealt with on three previous occasions. So I propose that this matter be dealt with in the course of the remaining list of matters. There have been some matters interposed during the course of these proceedings but I will deal with these remarks on an ex tempera basis and I will ask for these comments to be taken out by the Court Reporting Service so that there can be no issue about what has been said.

Counts

2 The four counts on which the offender appears for sentence are firstly, a charge of taking and driving a conveyance contrary to s 154A(1)(a) of the Crimes Act. That offence is subject to a maximum penalty of five years imprisonment. The offence relates to an event of essentially car stealing which occurred on 11 September 2007 at Merrylands. There are then three offences charged; count two, the aggravated break and enter and committing a serious indictable offence charge brought under s 112(2) of the Crimes Act 1900, for which the maximum penalty imposed is one of twenty years imprisonment. There is a standard non-parole period established of five years imprisonment. The third count is one of knowingly driving a stolen conveyance under s 154A(1)(b) of the Crimes Act. That carries a maximum penalty of five years imprisonment. Then finally count four, knowingly be carried in or on a stolen conveyance contrary to s 154A(1)(b) of the Crimes Act.

Facts

3 The latter three counts all occurred on 20 November 2007 and at Macquarie Park in North Ryde. The police facts, which are essentially agreed facts on which the offender pleaded guilty, are set out in exhibit S2. In brief order they specify that the car, the subject of count one, was a Nissan Patrol vehicle stolen from an address in Merrylands. The car, when recovered, had some DNA swabs taken from the gearshift and that was identified as being the DNA of the offender. The remaining three counts related to events that occurred between, it would seem, the afternoon of 19 November 2007 and the early hours of the morning on 20 November 2007. Another Nissan Patrol car was stolen from some premises in Ryde. There was a further white Ford Econovan stolen from another lot of premises in Ryde and the Nissan Patrol was driven into the Macquarie Park Shopping Centre. The offender drove it in with a second person in the vehicle. They were followed by the white, Ford Econovan that was driven by another person. The Nissan Patrol was then driven through the food court area of the shopping centre. It was then used to ram a bank automatic teller machine dislodging it from its face. The offender and the two other persons loaded the ATM into the rear of the Econovan and it was driven out by the third person. The Nissan Patrol was left at the shopping centre. It was witnessed by security guards who contacted the police.

4 The Ford was driven to an address in North Ryde some 500 metres from the shopping centre. Shortly thereafter, the offender and another person were running down another lot of premises in North Ryde. They were trying to climb over a retaining wall. They got into a car park where the offender then climbed into a white, industrial bin and was tracked down with the use of police dogs and apprehended by the police. The second person was not located. The offender declined to be interviewed by the police as was his rights and he did not consent to a buccal swab being taken. CCTV footage was obtained along with some shoe prints. It was not ascertained how much money there was in the ATM, at the time of the offences, and how much was stolen.

Planning

5 On any view, this was an offence that involved substantial planning. It involved the stealing of two cars from separate premises by three people. They followed in convoy. They smashed into a public, shopping facility in the early hours of the morning. They were observed by, and presumably were in the nearby presence of, security officers. It could be apprehended and I think it could be anticipated and I think the Crown is correct in its submission that it is likely that in shopping centres, cleaning staff generally operate in the early hours of the morning. Whether they would operate at 3.30am or thereabouts, as appears to have been the case, is a matter for conjecture but it is a situation where these were obviously not deserted premises.

6 The ATM was clearly the target. There was a degree of sophistication about the fact that the van was obviously stolen with that in mind. This was not an opportunistic matter. It involved considerable planning and forethought. It also obviously involved a joint criminal enterprise between three people, two of whom, as I understand the position, have not been apprehended nor dealt with. The offender has not offered any assistance in that regard. As the law currently stands, he is not obliged to and indeed cannot be penalised for that but it does seem to me to be relevant to note that fact given that it has been advanced on his behalf that he is a young man who has learnt his lesson and wishes not to associate with those sort of people again. I will deal with that aspect of the matter later on in the course of these remarks.

7 It also seems to be the case that there was some $44,792 in damage to the Macquarie Shopping Centre. This was only the subject of a compensation action notified to the offender today and not on the earlier occasion when the matters were before the court. However, no offer was made by the offender nor by his family who are said to be standing by him and it can be anticipated that, given his family and his father, in particular, is in receipt of the carer’s pension and the offender has been unemployed for some considerable years, there will be no such offer. Indeed there will be no restitution. This will be a situation, therefore, where the community and the individual shopkeepers and the Macquarie Shopping Centre will have to bear the costs of this damage.

8 As I have said during the course of submissions, there is an increasing frequency of ram raids in this city. They are to be regretted on all sorts of levels and they should be something which is reflected in a sentence when taking into account matters of general deterrence and that is exactly what I propose to do.

9 The situation is that these ram raids take place generally in built up areas where automatic telling machines are placed for the convenience of the public and to minimise banking and therefore, community costs. When these facilities are the subject of interference and destruction, as has occurred in this particular case, the community must bear those costs either through increased rentals and charges from the shopping centre owners through then to the shopkeepers and through then to the consumers or indeed, in terms of increased insurance premiums. That is something that must stop and if it does not, it should be the subject of condign penalties by the court, certainly as far as I am concerned.

10 The other relevant matters that were submitted in the course of the evidence were police statements and witnesses’ statements that were set out at exhibits S3 and following. They show the extent of the damage, the quotations and the photographs of the damage to the shopping centre. I am surprised that the damage was limited to the $44,000 given the matters of destruction set out in various photographs that are part of the Crown brief.

Offender’s prior convictions

11 The next matter that needs to be considered in terms of the evidence is the offender’s list of prior convictions. He has, as I have observed to him in the course of his evidence before me, an unfortunate criminal record for one so young. He is a person who is aged 24 now, date of birth being 24 May 1985. He has offences for dishonesty, in terms of stating a false name to the police and importantly, he was charged and imprisoned on a charge of firing a firearm in, or near, a public place. There were some issues about the sentence. Initially a sentence of imprisonment of two years was imposed that was subject to some early release but the offender did spend some time in gaol and it would seem that he was on a bond at the time of this offence which is a serious matter and certainly one to be taken into account in my overall consideration. He was also fined on a charge of possessing implements in relation to obviously what was car stealing in 2006 and has other traffic matters including driving whilst disqualified in 2004. Importantly, what appears to be clear from that record is that not only does he have a bad track record and is not entitled to any leniency because of that record, in accordance with the principles in the High Court decision in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465, but also worryingly, he has been extended considerable leniency in terms of sentencing options in the past. He has fines, he has had a bond but none of those seem to have made any difference. He has also spent some time in gaol.

12 When I heard his evidence, he said that this had meant his eyes had been well and truly opened. It seems that they must have been well and truly shut in terms of his determination not to commit any further offences as at the time of this offence. I know of no other way to bring it home to this offender and those indeed who support him and must, as a matter of reality, let him know that this conduct will not be tolerated in the future. That it is simply not good enough to trot along to court and make comments about remorse and contrition and not have any plans for the future nor indeed express, in my view, any real remorse. As I have observed during the course of his evidence, in my view, his expressions of remorse were formulaic and I have considerable reservations in accepting them.

Family background

13 It is clear that he has had in the past the benefit of a supportive family. Unusually for most of the people who appear in this court, and indeed in the Local Court, he has had a supportive family background. He had described to both the psychologist and the probation officer a close family unit inclusive of his parents. Clearly, the family went through some very difficult times from 2001 when his mother was diagnosed with breast cancer and underwent a radical mastectomy that had then, and I would imagine still, causes considerable concern and anxiety to him and indeed to his father who, as I say, is looking after his mother and receives the carer’s pension.

14 The offender is a young man who has also had a school education at Merrylands High and the Birrong Boys High School. He obtained his School Certificate; he got an apprenticeship in spray painting and panel beating. He commenced an electrician’s apprenticeship for three and a half years and then he had a car accident in December 2003. He also in 2003 and 2004 went to TAFE and the exhibited academic record sets out that he made some attempts to better himself and further his education.

15 What seems to have caused some problems to him is that he had car accidents. His counsel submits, and it is not submitted to the contrary, and therefore I accepted that he was involved in accidents on 13 December 2003 and 10 December 2006, both of which were caused by persons other than him. The first accident in 2003 left him with a ruptured aorta, fluid in his lungs and a fracture of his wrists. He spent three and a half weeks in hospital, including ten days in intensive care and needed considerable time thereafter to recover, recuperate and receive further medical attention. That cannot be minimised because I think his counsel accurately submits that it was thereafter that his problems were exacerbated.

Drug and alcohol abuse

16 The difficulty with that submission is that the offender has had a past history of drug and alcohol abuse. He started binge drinking at the age of fifteen of beer and spirits and that included a pattern of binge drinking with intermittent alcohol blackouts. That obviously predates this accident and it does seem to me that his depression, despair and anxiety does seem to have sprung from sources not necessarily or totally connected with these accidents. He said, in the twelve months leading up to his arrest, he was abusing cocaine and amphetamines. He said that he would get drunk and he would use more coke and be out of it for three days. If he was indeed - and I emphasise and underline the word if - he was subject to alcohol and drug abuse at the time of the incident which brought him before this court because of an interference with his patterns of judgment, that seems to have been a pattern of behaviour which goes back for many years and indeed predates his first accident.

17 The second accident occurred on 10 December 2006 when again, he was injured. He was revisited with problems from his first accident, in particular, receiving a broken shoulder which required treatment over many months as well as injuries to his rotator cuff muscles.
18 It does seem that he experienced, as one can understand, considerable, significant and constant pain as well as associated psychological malaise. It appears that he lost his employment and lost his aspects of physical fitness. It is stressed in the psychologist’s report of Mr Watson-Munro, exhibit S8, that he had a “disorganised state of mind as a consequence of drug abuse”. I must say that I need to look at that evidence with considerable scrutiny. It may be that the alcohol and drug abuse led to a desensitising and disinhibiting impact.

19 Nevertheless, the offence that occurred does not bear the hallmarks of a lack of planning or pre-mediation - just the reverse. It seems that people with considerable intelligence and skill had the presence of mind and indeed, as I say, the criminal intelligence to be planning this particular exercise. There was nothing disorganised about the offender’s flight and his attempts to conceal himself. There seems to be nothing disorganised about his thought processes, in terms of the fact that he has been able to assess his reluctance to give any kind of assistance to the police against the fact that the people with whom he has associated are people who he fears and indeed fears for his family’s sake. Nevertheless, as I observed to him, that means he is clearly more scared of them than he is of going to gaol and in terms of aspects of specific deterrence, I need to take that matter into account. As I say, he is not to be penalised for the fact that he has not given assistance but I do have some difficulties in accepting a full determination not to be involved with those people in the future if he is not prepared to take the one step which would indicate a cessation of that contact.

Future treatment

20 Stress was placed by Mr Brewer, learned counsel for the offender, on his need for treatment in the future. He specifies that the opinions of Mr Watson-Munro refer to his need for professional assistance and training, given his “poor capacity to assert himself in stressful and potential adverse peer group situations”. I have considered this matter over the lunch break and indeed I think that is the case. But as I have said, and have said repeatedly, both to the offender and his father when giving evidence, I cannot see anything in the offender’s track record or indeed in the way he was able to carry on leading a normal life as far as his father and girlfriend were concerned and yet obviously have the associates that he did, living from time to time away from home and obviously consuming the alcohol and drugs which were set out in the reports. I am, as I say, concerned about this young man because if anything, I think his level of intelligence is understated in Mr Watson-Munro’s report. It may be a situation of a lack of formal intelligence but his remarks and assessment of the questions I was putting to him and what lay behind them was quite astute.

21 As I say, he has had the matters set out in his tape records, the reference that he has had from Mr Jacobs about his preparedness to offer him employment goes to matters to his credit as does his father’s evidence and indeed that of his girlfriend. Both impressively came to court out of their respective love for this offender and their concern for him but he was able to either hoodwink them or conceal from them, the extent of his activities in a way that meant that they could not provide any real supervision or assistance to him. They are clearly disappointed. They are disappointed with themselves but it does seem to me that I need to look askance at any prospects for rehabilitation based on their supervision for him. That is not meant in any way to be critical of their evidence - just the reverse. As I have said, both of them are clearly motivated for the wellbeing of the offender and to do things they can for him but I see nothing in this young man’s track record which would indicate that he is going to take those offers into account. He may indeed be genuine and again, I emphasise and underline the word ‘may’ at this stage when he gives evidence in the face of these sentencing proceedings but that is not consistent with his past behaviour. I do not mean to minimise the stress that this family experienced with their mother’s situation but nevertheless, his antisocial behaviour and his disregard of community interests and indeed community safety, not just involved in the break and enter but in the associated car stealing matters on three occasions separately, and independently, must be reflected in the sentence.

Plea: discount

22 He pleaded guilty and there is some intricacy about when those pleas took place. It seems, in relation to count one, that he was committed for trial, there was a voir dire argument and as a result of which there was a ruling made and a change of plea. It does seem appropriate that exercising all possible generosity to the offender that the maximum discount for that plea should be of the order of five to ten percent and indeed, in my view, is an element of generosity to the offender there. Nevertheless, there are some savings to the police, the criminal justice system and the court by that plea. In relation to the other three pleas, they took place in the Local Court. They were pleas that resulted in there being savings to the court. The Crown submits that an appropriate discount would be of the order of twenty percent and defence counsel urges that should be one of twenty five percent. Again, exercising what I can in terms of generosity to the offender, I think I would be prepared to adopt on a rounded off basis the figure of twenty five percent but these things are to some extent artificial. As I say, both pleas were entered in the light of both forensic and other evidence that meant that inevitability was brought forward and accepted in terms of the plea that was entered. The offender was incarcerated on 21 November 2007. It seems appropriate and I understand there is no opposition to that sentence commencing on and from that date.

Consideration

23 The question then arises as to what I should take into account in terms of the matters of general deterrence, specific deterrence and the other matters of law that I am required to consider. The first of those matters obviously is the fact that the legislature has imposed substantial maximum penalties for these offences. There is indeed a standard non-parole period imposed for count two, the aggravated break and enter count, of five years imprisonment. That is obviously for cases where there have been matters following trial. This is a plea but I have looked at, and revisited over the lunch break, the question of the criminality involved, in particular, the planning and premeditation, the extent of the damage caused, the stealing of the two vehicles, the fact that what occurred was very clearly a joint criminal enterprise involving three men, the fact that there has been, and will be, no restitution, although that is not strictly a matter going to criminality and importantly, also in terms of the subjective features, this offender was on conditional liberty at the time. There was a police chase involved and substantial police resources were used. Although the Nissan Patrol was left in the police centre, it does seem that there was damage caused as I have detailed elsewhere. Clearly the ATM was being targeted.

24 In terms of matters of general deterrence as I have said and I reiterate, this Court cannot tolerate ram raids taking place on community facilities or indeed anywhere. They are vicious, they are destructive and they generally end up with a destruction of community facilities in areas where, for obvious commercial reasons, people locate facilities such as these. It occurred in a shopping centre.

25 In terms of the matters of specific deterrence, the offender’s prior record and the prior sentencing options extended to him which were, in my view, probably lenient means that he has not learnt any lessons in the past. He was released from gaol it would seem in August 2005. He was back involved and in front of the courts in May 2006, although it seems that he was immediately released on that day. But he must have been aware of the seriousness of court proceedings and of the criminality in which he was involved.

26 Put on his behalf is that although he was on parole, he was not rendered any assistance. Indeed, he was part of a rehabilitation program, as I understand the position, conducted through the Commonwealth Rehabilitation Service. He did not go to counselling, it is submitted on the basis of his evidence, nor was extensive counselling or future treatment offered to him. Nevertheless, it does not seem to me, having observed him and heard the submissions made, that he helped himself. It does not seem to me that he got out to try and get off the drug and alcohol problems that he had in any way that would establish a track record that I could be confident of to his advantage. Also put on his behalf, again with some force by learned counsel for the offender, is that the pain he has been in has been a matter of major distraction to him. This young man who suffers from low self esteem and who, the evidence says, is of low to average intelligence, as I said my observations of him is that may be correct in terms of formal or academic intelligence but he is a person who is quick on the uptake as far as my observations of him were concerned.

Special circumstances

27 It is put that there should be a finding of special circumstances. The Crown opposes that and says no finding of special circumstances sufficient to warrant any minimisation of the term of actual imprisonment imposed should be made. This is something that I have needed to consider at length over the lunch break. Clearly, by virtue of his age, being a young man, there should be some finding of special circumstances and there is also the issue of the fact that incarceration may, and I emphasise the may, be difficult for him given the pain he has experienced and his ongoing medical condition. But those are matters of relatively minimal adjustment as far as I am concerned. The fact of the matter is, that normally one would look to a reduction in the ratio such that it would warrant a longer than average period on parole by virtue of prospects of rehabilitation. Here, despite the evident love that his girlfriend and father have for him, I do not see any basis on which I could be confident that there would be such strong prospects of rehabilitation. I do not see anything that would make me convinced that he is likely to cease his association with either drug or alcohol abuse in the event that temptation arises, as it surely will. Nor do I see anything that would give me confidence that he would cease coming back, if not to the people with whom he has associated in committing these crimes, but with people of that nature.

28 I can impose, and indeed I propose to recommend that conditions be imposed on him such that he not associate with any person known to him to have a criminal record during the period of parole. Nevertheless, both his father and girlfriend, if she sticks around for him, can only do so much. He needs to realise that he has got to come to a changing of the ways. Accordingly, while I do think there should be a finding of special circumstances, it should be very minimal indeed and should reflect an overall reduction to no more than seventy to seventy two and a half percent on the statutory formula that would otherwise be imposed.

Accumulation and concurrence

29 This is also a matter where I need to consider issues of totality and accumulation and concurrence. In my view, the first offence is totally separate in nature and warrants a separate sentence. This is a situation where the car stolen was stolen from separate premises some two months or six weeks prior to the offence. It had the offender’s DNA on it and it does not seem to have had any other major connection with the other offences. The fact of the matter is that the two vehicles stolen being the green and gold Nissan Patrol and the Econovan were part and parcel of the second group of offences but there does not seem to be any reason why there should be any partial accumulation in relation to the first offence. Normally for an offender of this age, one would at least partially accumulate matters but given the totality of the criminality involved and the separate charges, I think that that is not appropriate in this instance.

30 In relation to counts 2, 3 and 4, I do think there should be a total concurrence in the time served for all those offences. This of itself is a mark of some leniency to the offender because there are separate charges with separate kinds of criminality. Nevertheless, they involve the same people, the same night, the same circumstances of the robbery and the same geographical area but as I say, there is some leniency to the offender in that approach. If I have not already said this, I will specify that it does seem appropriate that sentence should commence from 20 November 2007.

Comparable authorities and statistics

31 I should also specify that when I returned to court following some comments I had made about the statistics which were helpfully submitted by Mr Brewer and the Public Defender’s website, I have had the opportunity to consider the sentences listed in both documents. To the extent that I can glean from the available material, the relevant sentences for single counts of aggravated break enter and steal have been considered by the Court of Criminal Appeal in a series of decisions relevantly going back to about 2000. There have been some changes to the legislation since that time and some additional sentencing practices such that, in my view, earlier sentences are not necessarily of full guidance to judges at my level. However, it does seem the matters of R v Crowe [2002] NSWCCA 245, R v Warren [2003] NSWCCA 366, R v Anderson [2004] NSWCCA 39, R v Chen [2004] NSWCCA 369, R v Dodd [2004] NSWCCA 374, R v Ceissman [2004] NSWCCA 466, R v BB [2005] NSWCCA 215 and R v Huynh [2005] NSWCCA 220 plus the other matters which Mr Brewer referred to of R v Roberts [2005] NSWCCA 401 and R v Douglas [2006] NSWCCA 94 all indicate a range of sentences. There are some differences in the factual situations obviously and clearly in the subjective circumstances of the relevant offenders. Some of those relate to commercial premises in terms of warehouses and shops. This is a somewhat different offence in terms of a community facility such as a shopping centre. Nevertheless, I need to be careful about that because this occurred in the early hours of the morning. One could imagine that with warehouses there would also be security guards present, although not necessarily the case, but as I say, those matters are of guidance and to the limited extent that they become relevant to me I think that the appropriate sentences are matters that I should take into account.

32 I have also looked at the JIRS statistics and am careful to consider the number of cases listed for the relevant fields that are extracted. Some of the matters to which I have referred had schedule matters involving drugs and other matters. This does not seem to be the case here, and certainly the offender’s drug matters are not before me in terms of any sentencing considerations. I also need to make sure that those offences were ones of pleas of guilty which seems to be the correct analysis on the matters I have carried out.

Sentence

33 If you could stand up please, Mr McDonald, and I will impose the sentence. On counts 2, 3 and 4, that is, the shopping centre, aggravated break and enter and the car stealing, you are sentenced to a non-parole period of three years and four months, a total of forty months imprisonment, commencing on 20 November 2007 and expiring on 19 March 2011 with an additional term of two years and eight months expiring on 19 November 2013. I will give counsel a typed version of this and also Corrective Services so that you can check those dates before I formally enter them on the court record. On count 1, you will be sentenced to a non-parole period of twelve months, commencing on 20 March 2011 and expiring on 19 March 2012.

34 In terms of transparency of sentencing that effectively means that I have on count 1 adopted the approach that normally a car stealing of this range, given the offender’s past record, would normally attract a sentence of about fourteen to sixteen months imprisonment to which should be applied the discount of about ten percent, rounded down to the benefit of the offender. That would mean a fixed term of about twelve months imprisonment.

35 The second group of offences, taking all of the criminality into account and bearing in mind that the total of them, the sentence that I have imposed is really and strictly on count 2 of the count, that is, the non-parole period of three years and four months. My intention would be that on each of counts 3 and 4, there would be sentences fixed terms of twelve months commencing, as I say, in each case on 20 November 2007 and expiring on 19 November 2008. These become an exercise in ensuring that the right sentence is imposed but that would reflect the criminality that I think is appropriate here.

Parole

36 In terms of parole conditions, I would recommend to the Parole Board that the offender be subject to the following conditions; firstly, that the offender be of good behaviour; secondly, that he notify the Probation and Parole Service of any change of address; thirdly, that he not associate with any person known to have a criminal record; and fourthly, that he attend any course of drug treatment as recommended by the Probation and Parole Service.

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08/12/2009 - Removed paragraph 37 - Paragraph(s) 37