R v Thoral

[2022] NSWDC 73

District Court

New South Wales

Medium Neutral Citation:	R v Thoral [2022] NSWDC 73
Hearing dates:	8 February 2022
Date of orders:	8 February 2022
Decision date:	08 February 2022
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	I set aside the sentence imposed by the Central Local Court on 9 November 2021. In lieu I set a non-parole period of five months commencing on 4 October 2021, expiring on 3 March 2022. I impose a further period of imprisonment of two months to commence upon the expiration of the non-parole period, expiring on 3 May 2022.
Catchwords:	CRIME – APPEAL – LARCENY – DISHONESTLY OBTAINING A FINANCIAL ADVANTAGE BY DECEPTION - SEVERITY OF SENTENCE – APPEAL ALLOWED.
Legislation Cited:	Nil
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Sentence
Parties:	R – Crown Appellant – Alexander Thoral
Representation:	Crown Gourlie Appellant Bushby
File Number(s):	2021/00281654
Publication restriction:	Nil

Judgment

1. HIS HONOUR: This is an appeal against the severity of sentence passed by Magistrate Williams, sitting in the Central Local Court, on 9 November 2021. The appellant was arrested on 4 October 2021. He first appeared before the Local Court on 6 October 2021 where he entered a plea of not guilty. However, the brief was ordered to be delivered by 2 November and the matter was relisted before the Local Court on 9 November. On 9 November the offender entered pleas of guilty to each of the two charges which he faced. The plea must be seen as being entered at the earliest available opportunity.

2. On 6 September 2021, the appellant attended outside 25 Market Street Sydney. That building contains a number of residential units. There is a bank of mailboxes fronting onto Market Street. In some fashion, the appellant obtained a master mailbox key. He gained access to the mailbox relating to the unit occupied by Ms Elisa Antoska. The appellant took from Ms Antoska’s mailbox correspondence addressed to her which included an envelope containing a credit card. The stealing of the credit card contained in the letter addressed to Ms Antoska that the appellant found in her letterbox is the subject of the first charge, a charge of larceny. The maximum penalty for that offence that could be imposed in the Local Court was imprisonment for two years, and or a fine of 20 penalty units.

3. The appellant used the credit card stolen from Ms Antoska to purchase two packets of cigarettes for a total value of $88 dollars. The credit card was used by the appellant on 10 September 2021. That gave rise to the second charge, a charge of dishonestly obtaining a financial advantage by deception. The maximum penalty for that offence that could be imposed in the Local Court is imprisonment for two years, and or a fine of 100 penalty units.

4. Considering for what purposes the credit card could have been used, the actual offence committed by the offender on 10 September 2021 is at the very bottom of the range. He used the credit card to obtain $88 worth of cigarettes, but a small advantage in the minds of many is a great disadvantage to his own health.

5. The Magistrate gave two indicative sentences, five months for each offence. His Honour imposed an aggregate sentence of nine months and fixed a non-parole period of six months commencing on the date of the appellant’s arrest on 4 October 2021, expiring on 3 April 2022 and a balance of the term of three months, expiring on 3 July 2022. It is clear from the Crown’s summary of the offender’s custodial history that because of a breach of parole, the offender would have been in custody in any event until 6 January 2022 for other matters. But, of course, the only reason that parole was revoked was because of the commission of these rather minor offences, and in the circumstances I do not believe it necessary to post-date the sentence such that it commences sometime after the offender’s arrest on 4 October 2021.

6. In my view, the learned Magistrate’s views as to the indicative sentences were incorrect, as was his finding as to the aggregate sentence to be imposed. The methodology I would use is this: in respect to the sequence 1 offence, I would commence with a head sentence of 12 months imprisonment. The offender has a lengthy history of crimes involving stealing. Stealing a credit card can impose a major detriment on the victim of the stealing of the card. The offender is entitled to a discount of 25% such that the indicative sentence should become nine months. As for the sequence 2 offence I would impose a fixed period of imprisonment of one month, bearing in mind the plea of guilty in any event.

7. The total of the two indicative sentences is 10 months, but in my view the appropriate aggregate sentence is seven months, and applying the statutory formula and rounding it down in favour of the appellant, the non-parole period becomes five months. That means the offender would be eligible for admission to parole on 3 March 2022, that is, within a month’s period. However, I note that the offender is doing a “Short Sentence Intensive Program” in custody and still has two weeks left to complete that course, which he is encouraged to complete.

8. For those reasons I set aside the sentence imposed by the Central Local Court on 9 November 2021. In lieu I set a non-parole period of five months commencing on 4 October 2021, expiring on 3 March 2022. I impose a further period of imprisonment of two months to commence upon the expiration of the non-parole period, expiring on 3 May 2022. The total sentence is therefore seven months comprising the non-parole period and the balance of the sentence. I have not found special circumstances. The appellant is eligible to be considered for release to parole at the expiration of the non-parole period. The indicative sentences are: for sequence 1, nine months; and for sequence 2, one month.

9. Any other orders sought?

GOURLIE: Not from the Crown your Honour.

BUSHBY: No thank you your Honour.

10. HIS HONOUR: Thank you Mr Gourlie. Good luck to you. Please complete the course. Now the other thing Ms Bushby before you go. Ms Bushby could you get in contact with the French Consulate in Sydney, they should be able to try to get a copy of Mr Thoral’s birth certificate from New Caledonia which will assist him getting some other primary identification documents. That’s the way to go get your birth certificate from the French--

BUSHBY: If I can get it I’ll post it to your Mr Thoral.

Decision last updated: 23 March 2022