R v Thoral (2)
[2015] NSWDC 368
•13 November 2015
|
New South Wales |
Case Name: | R v Thoral (2) |
Medium Neutral Citation: | [2015] NSWDC 368 |
Hearing Date(s): | 13 November 2015 |
Date of Orders: | 13 November 2015 |
Decision Date: | 13 November 2015 |
Jurisdiction: | Criminal |
Before: | Berman SC DCJ |
Decision: | Sentenced to imprisonment. For the larceny matter on the s 166 certificate I impose a fixed term of one months’ imprisonment. For the offence of possessing housebreaking implements, I impose a fixed term of imprisonment of two months. For the offence of break enter and steal I set a non-parole period of two years with a head sentence of 4 years. |
Catchwords: | CRIMIMAL LAW – Sentence – Break enter and steal – s166 certificate – possess house breaking implements – Larceny – Joint criminal enterprise |
Cases Cited: | R v Henry (1999) 46 NSWLR 346; (1999) 106 AcrimR 149 |
Category: | Sentence |
Parties: | The Crown |
Representation: | Solicitors: |
File Number(s): | 2014/232497 |
SENTENCE
HIS HONOUR: A little while ago I found Mr Thoral guilty on an offence of break enter and steal. I was then asked to deal with some matters on a s 166 certificate - an offence of possessing housebreaking implements and an offence of larceny relating to 3 credit cards.
Mr Thoral was one of two people discovered by police in a car with the proceeds of a break enter and steal at various locations within the car. When found by police he had just broken into a patisserie and taken from it some drinks, some food stuff and some envelopes and their contents. Not a lot was really taken, not much damage was caused, certainly nothing gratuitous and these were retail premises rather than someone’s home.
So although all break enter and steal offences are serious, this was not one of the more serious offences of that type. But that does not mean that Mr Thoral does not need to be sentenced to gaol for a significant period of time.
He has a criminal history which is extensive. Break enter and steals appear on that history on a regular basis and there are many other offences as well. He has demonstrated a continuing attitude of disobedience to the law. It is notable that there are no offences of violence upon his criminal history which is perhaps commendable but his criminal history does demonstrate the need for a substantial component of personal deterrence to be built into the sentence I have to ultimately impose upon Mr Thoral.
I also have to sentence him for two matters on a 166 certificate, one relating to possessing housebreaking implements, (these were the very implements used to break and enter into the shop and so he will receive no extra punishment for that offence) but the other offence relates to the larceny of three credit cards also found in his possession by police. That is a completely separate offence so a completely separate punishment is required for it.
Mr Thoral was born in New Caledonia. Soon after his parents brought him to Australia they separated and he went to live with his father. His father worked in, ironically given the nature of the premises that Mr Thoral broke into, a patisserie and was rarely at home due to working long hours. This was at a fairly crucial stage of Mr Thoral’s upbringing. He was left effectively unsupervised for large periods of his early teenage years. He began to frequent the local video store and there met up with older children who were a negative influence. Things went even further downhill when one of Mr Thoral’s associates from the video store broke into the family home. His father blamed him for what occurred and kicked him out of home. So at a very young age he was fending for himself on the streets.
He tried to get his father to allow him to return home but his father’s position was unrelenting. Mr Thoral cannot be blamed for having reacted adversely to his father’s failure to provide an effective form of parental supervision as he was growing up and then effectively rejecting his role as a father when Mr Thoral was 13.
In these circumstances Mr Thoral’s decision to begin taking drugs, a factor which has remained a problem for him to this day, can be viewed as a mitigating circumstance.
In the guideline judgment of R v Henry (1999) 46 NSWLR 346; (1999) 106 AcrimR 149, a case primarily dealing with the guideline sentence for armed robbery, the Court considered the circumstances in which drug addiction could be a mitigating factor. One such circumstance was where the decision to begin using drugs was not really a matter of personal choice. I regard this to be such a case. To commence using drugs at around the age 13 is not to make a mature, well thought out, decision. Mr Thoral’s decision to commence his many offences, presumably in order, at least some of the time, to fund his drug addiction, has to be looked at in that light.
This offence was committed whilst Mr Thoral was on parole. He had been released only 3 months before. At one stage whilst on bail he attempted a drug rehabilitation program on the Central Coast but this did not go well. His parole was revoked, not only because of the commission of the offence for which I must sentence him but also because he was not living where he was supposed to and because he was using drugs.
The prospects of Mr Thoral’s rehabilitation are, at least in the short term, frankly poor. One day I expect that Mr Thoral will change his ways. One day he will realise the futility of the life that he has thus far led, measuring his life out in court dates and release dates it is terrible to see a life wasted as Mr Thoral has been living his life to date.
Even giving full credit to Mr Thoral because of the circumstances in which he began using drugs and recognising as I have already mentioned that this is far from the worse type of break enter and steal offence, a substantial sentence is nevertheless required. The maximum penalty of 14 years imprisonment is something which cannot be ignored. It is an indication to judges as to the seriousness with which offences of this type should be dealt. As I have already mentioned, personal deterrence is of particular importance in the case of this particular offender.
I should mention the sentence imposed upon Mr Thoral’s co-offender, a Mr Costas. He got a s 9 bond in the Local Court. However it has to be noted that he pleaded guilty, unlike Mr Thoral and his criminal history was very different indeed from Mr Thoral’s. Although of course I have to ensure that Mr Thoral does not have a justifiable sentence of grievance when he compares the sentence I impose upon him with the sentence imposed upon his co‑offender there are substantial differences of which I have taken account. The subjective features of the two men were vastly different.
I should mention before I impose sentence something of a technical problem. I found Mr Thoral guilty because of the evidence before me which satisfied me that he was involved in joint criminal enterprise with Mr Costas. However I note that Mr Thoral was not charged with and has not been found guilty of an aggravated form of the break enter and steal offence. Thus I will certainly not sentence as though he was in company at the time of this offence. I will sentence him on the basis that he was involved in joint criminal enterprise with Mr Costas but it is important to note that the factual circumstances on which I will sentence Mr Thoral did not involve both of them entering the premises and did not in any way involve Mr Thoral being in company with Mr Costas.
I impose sentence as follows. For the larceny matter on the s 166 certificate I impose a fixed term of one months’ imprisonment to date from 13 May 2015. For the offence of possessing housebreaking implements, I impose a fixed term of imprisonment of two months to date from 13 June 2015. For the offence of break enter and steal I set a non-parole period of two years with a head sentence of 4 years to date also from 13 June 2015. This means that the non-parole period would expire on 12 June 2017 on which day Mr Thoral is eligible to be released to parole.
As is obvious I found special circumstances in the offender’s favour, they relate to the need expressed in the psychological report tendered on his behalf for Mr Thoral to be assisted upon his release from custody to engage in further training employment and in order to deal with his drug problems.
I will refer him to the compulsory drug treatment centre at Parklea gaol.
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