R v Vincent

[2019] NSWDC 343

District Court

New South Wales

Medium Neutral Citation:	R v Vincent [2019] NSWDC 343
Hearing dates:	12 June 2019
Date of orders:	12 June 2019
Decision date:	12 June 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Sentence of imprisonment of 4 years with a non-parole period of 2 years 3 months
Catchwords:	CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation SENTENCING — Relevant factors on sentence — Form 1 offences SENTENCING — Relevant factors on sentence — De Simoni/double counting SENTENCING — Relevant factors on sentence — Maximum penalty SENTENCING — Non-parole period — Standard non-parole period SENTENCING — Non-parole period — Principles to be applied
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Court Act 1998
Cases Cited:	Callaghan v Queen (2006) NSWCCA at 58 Markarian v Queen (2005) HCA 25 Muldrock v Queen (2011) HCA 39 Ponfield & Ors (1999) 48 NSWLR 327 Queen v Borkowski (2009) NSWCCA 102 Queen v Mooney (2016) NSWCCA 231 Tepania v Queen (2018) NSWCCA 247 The Queen v de Simoni (1981) HCA 31
Category:	Sentence
Parties:	Regina (Crown) Anthony Vincent (Offender)
Representation:	Jessica Pelliccione (Crown) Louise Jardim (counsel) (Offender)   Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2018/00283145

EX TEMPORE JUDGEMENT (REVISED)

Introduction

1. Anthony Vincent pleaded guilty in the Local Court to a charge of aggravated break, enter and steal in circumstances of aggravation being that he knew someone was on the premises.

The Offence

2. The stealing component or element of the offence is difficult to quantify because the victim of this crime found that her handbag, which was in her bedroom, had been taken when the offender was arrested shortly thereafter by patrolling police, a short distance from her premises. He had only a cigarette lighter on his person and it is not clear at all what property was actually contained in the handbag, except for what was found when the police later recovered it. The items missing from the handbag were taxi vouchers, an Opal card and a banking card.

3. Either way, the property stolen was of moderate proportion and that is so even with. The facts indicate that those items have not been recovered although the handbag was. One way or another though, the items were of limited value it would appear.

4. The particulars of the offence are in the court attendance notice, sequence 4. This alleged that the offence occurred between 11pm and 11.30pm on 14 September 2018 in the victim’s townhouse in Bidwill.

Maximum Penalty

5. The maximum penalty for this offence is imprisonment for 20 years with a standard non-parole period of five years. The relevance of the standard non-parole period was most recently discussed in the Court of Criminal Appeal in Tepania v Queen (2018) NSWCCA 247 by Johnson J who at para 110 in his judgement summarised the propositions that arise from the legislation in which the provisions relevant to standard non-parole periods are found in their amended form after the decision of the High Court of Australia in Muldrock v Queen (2011) HCA 39.

6. The standard non-parole period is a matter to be taken into account as part of the determination of sentence. The legislation in Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 specifies that the standard non-parole period applies to an offence found within the middle of the range of objective seriousness for such an offence taking into account only objective factors without bringing to account matters that are unique to the offender or the class of offenders.

7. Ultimately though, the standard non-parole period is but a factor to be taken into account in the sentencing exercise together with the objective and subjective matters which are considered in synthesis in accordance with what McHugh J discussed in the decision in Markarian v Queen (2005) HCA 25. Thus even though an offence might be found to be within the middle of the range of objective seriousness, it does not follow that the standard non-parole period will apply nor that there shall be a percentage calculation performed where the offence might be found lower on the scale of seriousness.

8. The process is not arithmetical but more intuitive, however the law requires that I determine where on the scale of objective seriousness the offence does fall. With regard to the facts that are before me, I have come to the view that the offence falls below mid-range of objective seriousness. The precise positioning of the offence along the scale is a matter of judgement and is not easy to identify but it would seem to me that it must fall somewhere, perhaps halfway between the low end and the mid-range of objective seriousness bringing into account the various factors that I must consider. As I say however it does not follow therefore that a standard non-parole period should be adjusted simply by application of some percentage and reached upon the assessment of where on the scale the offence is placed.

9. I shall identify the factors that have informed my decision as I go through the agreed facts.

Pre-Sentence Custody

10. The offender has been in custody for a significant period of time already. The offence occurred on 14 September 2018 and he was arrested on 15 September 2018, apparently in the early hours of the morning.

11. At the time, he was on parole for earlier offending and was in breach of parole because of his failure to comply with his obligations, and this offence, of course, would be a further breach of the parole to which he was subject.

12. On 1 August 2018, his parole was revoked as a consequence of those breaches and he served the balance of parole commencing on 15 September 2018 upon his arrest for this matter until 19 January 2019. Thus, the Court must determine when the sentence to be imposed today should commence applying the discussion by Simpson J in Callaghan v Queen (2006) NSWCCA at 58, in which her Honour spoke of the discretion that a sentencing court has in such circumstances. Both the Crown and counsel for the offender agree that there should be accumulation and concurrence between the balance of parole and the commencement of the sentence today. This would fairly reflect the discussion of Simpson J who observed that one of the matters one would bring to account in the exercise of discretion is that it could not be said that but for the present offence he would not be given the opportunity to be released to parole within the period of the balance of the parole that he ultimately was required to serve.

13. I have come to the view that it is appropriate to commence the sentence today on 15 November 2018.

The Facts

14. The facts are that the victim was in her home, a townhouse, in Bidwill. She was aged 60 at the time. She lived alone. Her home was, I would expect, a modest home as a residence provided to her by the Department of Housing. The victim and the offender were unknown to each other.

15. Between 10.30pm and 11.00pm on Friday 15 September 2018 she was in her single storey premises. She was in her lounge room watching television. The offender came to the home and removed the flyscreen from the laundry window, and opened the window which was shut but not locked. He climbed through. He opened the internal laundry door and walked into the main living area where the victim was sitting. He sat on the floor in front of her. She was then lying on the lounge under a blanket with her head on two pillows. Upon realising the offender was present she panicked, and did not know what to do. She noticed that he was holding her cigarettes in his hand. She took the packet from him and said “I don’t know you, how did you get in?” He replied “Shoosh”. She said “You must leave please”. She stood and walked to the front door, she opened it and the screen door. She then felt him grab her right wrist and heard him say “Go fucking back to the lounge or I am going to kill you”. That conduct is the essence of a charge of common assault contrary to s 61 of the Crimes Act 1900 which is included on a Form 1 and which the offender asks that I take into account when I determine sentence for the break, enter and steal in circumstances of aggravation.

16. The victim pulled her wrist free and ran to a neighbour’s house and told her what had happened. Police were contacted. Her handbag was found to have been taken from her bedroom. She was able to give the police a thorough description of the offender, and when patrolling the location they found him a short distance from the victim’s premises. He was arrested. He had only a cigarette lighter on his person. He was taken to Riverstone Police Station. He declined the opportunity to be interviewed. The handbag was later located a short distance from the victim’s home. Her bankcard, taxi vouchers and an Opal card were missing.

17. She suffered soreness to her right wrist and was extremely frightened during the incident, reflected in her victim impact statement with which I have been provided.

Victim Impact Statement

18. The victim impact statement was not read by the victim but I have it before me as part of the material tendered in the Crown bundle.

19. She had been living in this community for about three weeks before the offence. She is visually impaired and she has a paralysed vocal cord and therefore could not call out for help. She writes of feeling frightened, very frightened, about being unable to defend herself, and the harm that the offender threatened if she did not comply with his demands. She writes of being grabbed by the wrist which caused her injury and required her to wear a splint. Her hand and wrist were bandaged for months after the event.

20. I bring that to account but not in aggravation of the s 61 offence of common assault. He is not charged with an offence of assault occasion actual bodily harm to be brought to account in the determination of sentence for the principle offence; I simply note that she suffered a measure of injury but not so as to raise the seriousness of that offence in breach of the De Simoni principle (The Queen v de Simoni (1981) HCA 31).

21. The consequence of these events is that she is scared living alone. She feels as a prisoner in her own home. She feels she must keep all of the doors locked all of the time. She is frightened by unexpected or sudden noise and she suffers from flashbacks and nightmares arising from the event. She enters her home with caution when she returns to it and she pauses before entering the house to make sure that there is no one lurking around the townhouse. She checks all of the rooms when she enters and she has had help from a counsellor to deal with the stress that burdened her after the event. I note this document was signed on 30 May 2019 and that it is relatively recent. She feels that she has lost independence and does not like to be alone in the house because of her lack of any sense of security and safety. She is looking to move to live with her daughter.

22. The victim impact statement is received by the Court, not in aggravation of the offending or the sentence that the offender is otherwise to suffer, but by way of the opportunity given to the victim to have the offender confronted with the impact of his crime upon her and for her to express her fears and anxieties that have arisen as a consequence of this misconduct.

23. There is no material before me by way of a psychological or psychiatric assessment to identify the parameters of any sequelae from this event, bearing in mind the age of the victim, the fact that she lived alone, the nature of the misconduct, and the time when the offence occurred. What she described one might expect to have been suffered by such a victim, but it has given the Court a measure of insight into what people suffer when they are the victims of such crimes. However, the material must be kept within appropriate parameters and must not attract any greater weight to the assessment of objective gravity or the sentence that must be imposed.

Form 1

24. The Form 1 offence will impact upon the sentence that is to be imposed requiring an increase to what might otherwise have been the sentence were the principal offence standing alone. The guideline judgement, and in particular the judgement of Spigelman CJ, is well-known. There must be focus upon the need for specific deterrence and there must be a sentence that will reflect the community’s entitlement to have the full extent of the misconduct brought to account with appropriate denunciation for all that the offender has done in this enterprise.

25. He has gained considerable advantage by not facing a separate punishment for the charge of common assault but at the same time, he has provided utility and that must be brought to account to his credit.

Plea of Guilty

26. He pleaded guilty at the earliest opportunity and therefore he must be given the benefit of the utility as therefore provided. The sentence that would have otherwise been imposed will therefore be reduced by 25% to reflect that utility in accordance with the decisions in the Court of Criminal Appeal including Queen v Borkowski (2009) NSWCCA 102 bearing in mind there was some criticism of Mr Justice Howie’s approach in a decision in the Queen v Mooney (2016) NSWCCA 231.

The Offender

27. The offender will turn 25 later this year. He has been before courts since he was aged 15. His record of antecedents is extensive. The antecedent report tendered by the Crown is of 13 pages. Offences upon which he has been before Children’s Courts and the adult courts are for possessing implements to enter and drive a conveyance, entering a vehicle or boat without the consent of the owner, aggravated break and enter and commit serious indictable offence in company, an aggravated break and enter and commit serious indictable offence with people present, break enter and steal, enter building with intent to commit an indictable offence, contravening an apprehended violence order, robbery in company, damage to property, larceny, stealing from a retail store, having custody of a knife in a public place, taking and driving a conveyance without the consent of the owner, being carried in a conveyance taken without the consent of the owner, intimidation, common assault, assault occasion actual bodily harm and there are multiples of those offences across the history of offending upon which he has engaged since his age of 15 years.

28. In the teenage period he spent most of it in custody apart from his time in children’s facilities. The time in adult gaols began on 21 October 2012 where he remained till 19 April 2013, released to parole. He came into custody again on 7 November 2013 and remained there until parole on 26 May 2015. He came into custody on 17 September 2015 and remained until parole on 8 December 2015. He came back into custody on 1 March 2016 and remained until parole on 8 March 2017. He came back into custody on 4 April 2017 and remained until parole on 5 June 2018 and then back into custody on 15 September 2018 where he has remained since.

29. The report that led to the revocation of parole on 1 August 2018 is included in the Crown bundle. He failed to report as required in breach of his parole. He failed to comply with all reasonable directions from the Community Corrections officer about participating in programmes, treatment intervention, and other related activities as required by his parole. His response to supervision was considered to be poor and superficial and upon that history it was recommended that parole be revoked.

30. He continued to use illicit substances. He was assessed as a medium/high risk and it is unsurprising in the circumstances that his parole was revoked.

31. The sentence assessment report that has been provided includes his failure to comply with his obligations under conditional liberty, his history of anti-social behaviour. He explained that in respect of this offence he was not thinking, he was tripping out, off his face, as a consequence of use of prohibited drugs and alcohol. He said there was no motivation behind the offence, he just was not thinking clearly. He was using drugs excessively, cannabis, taking that daily, and alcohol. He would indulge on drug benders including the use of alcohol, cannabis and methylamphetamine.

32. At the time of the offence, he reported he was under the influence of synthetic cannabis, had consumed a bottle of whiskey, and was coming down from a bender on “ice”, the term used for methylamphetamine.

33. He expressed remorse and that he felt bad about what he had done. He recognised that the victim would hold fear and anxiety as a consequence of his behaviour. He expressed a willingness to undertake intervention, community service work, and submit to supervision. He is assessed as a medium to high risk of re-offending and there are recommendations with regard to supervision should the opportunity present.

34. The question the court needs to assess is, first of all, the objective gravity; where the offence should be placed on the scale; and I am assisted by written submissions provided by the Crown in that regard. Applying what was said by Johnson J in the decision in Tepania to which I earlier referred, consideration of matters that might, in some circumstances, be considered at least partly subjective, may be brought to account, but when I consider that he confronted the victim in her home, he took hold of her and committed the offence of common assault in the course of the crime, bearing in mind that the property stolen was of modest value but significant, no doubt, to the victim with inconvenience through the loss of her Opal card and bankcard, the threat of extreme violence if she failed to comply with his direction, all bring me to the view that the offence is where I placed it on the scale of seriousness.

35. I also bring to account that the offence of break, enter and commit a serious indictable offence will embrace a multitude of conduct including serious indictable offences with maximum penalties that range from five years up to 25 years and even life depending upon the crime. That also informs the question of objective gravity.

36. I am reminded of the guideline judgement in Ponfield & Ors (1999) 48 NSWLR 327 and the characteristics that were there discussed by Grove J.

37. The Crown asked me to take into account the fact that this was committed in the home of the victim and addresses the mitigating factors which are limited, the Crown submits, to the plea of guilty, which I find is consistent with expressions of remorse that he offered in the witness box in evidence-in-chief and in response to cross-examination by the Crown.

38. I am satisfied that he is remorseful and I am satisfied that he is sincere in his wish to rehabilitate. The prospects though cannot be assessed as good because of the history that he so far demonstrated.

39. He is in need of close supervision beyond merely having him report in because I fear that he could easily leave the path to a better life if not carefully controlled once he returns to the community. Thus, I am guarded with regard to his prospects of rehabilitation.

40. Why has he behaved as he has over his life? His birth mother was apparently less than suitable to provide for his care because the offender was taken from her shortly after he was born and put into the care of his foster family. I note that his foster father is present in court with other family members and I have been provided with a testimonial from his foster sister, Elisa.

41. By all accounts, this family is nurturing and caring and it could not be said that they are in any way blameworthy for the lifestyle that the offender has led; indeed on the material before me, it appears that they had done all that they can to provide for him, and give him the nurturing and support through the formative years that all children should have.

42. When the offender was nine, his foster mother lost her life to cancer and the family went through a period of significant grief, as one might expect, and according to his sister this is when the offender’s behaviour issues commenced and continued to evolve through his misuse of drugs in his teenage years beginning with cannabis, misuse of alcohol, and ultimately, the scourge that has been burdening this country for some years now, methylamphetamine.

27. The offender provided an affidavit which he embraced when he entered the witness box. His knowledge is that he was taken from his mother when he was aged three months due to allegations of abuse. He has had no contact with her. He does not know who his birth father might be. He speaks of the affection and love provided by his foster family who have no issues with drugs, alcohol or violence and who have always stood by him including his foster father who is present in court. He swears in his affidavit that it causes him pain to think that he has continued to disappoint his foster father and his siblings through his continued misconduct. He continues to feel grief at the loss of his foster mother.

28. He was introduced to drugs at the age of 12 or 13 by an older cousin in the form of cannabis and the evolution there began. He failed to attend school as required. His foster father and siblings would roam the streets looking for him when he failed to come home as he was required to do. At nineteen or twenty, he began smoking methylamphetamine but then in one of the periods in custody, he began to inject it and upon release, continued in that practice. He also developed a dependence on Oxycontin.

29. In custody, he takes the opportunity to dry out over a month or so. He said he has tried to stop using drugs. He has undertaken a number of programmes as a juvenile. They were all for cannabis but he has not yet had any opportunities to undertake rehabilitation in respect of methylamphetamine or Oxycontin. He is anxious to do what he can to address his drug problems. He was unable to take advantage of the Drug Court because of his robbery offence on his antecedents.

30. In custody, he has undertaken EQUIPS, and addictions and aggression courses. He has had one job in his life as a digger. That lasted for about two months until drugs once again got the better of him. His foster father continues to help him apply for work, takes him to interviews, but he rarely has any success. He has been working in custody mowing lawns and in the metal shop but he has limitations because while he is on remand his opportunities for work are not extensive. He apparently had some talent playing rugby but his lifestyle generally led him away from that. He has only had one birthday outside of the custodial setting.

31. He has a daughter aged four, he has only seen her once. His foster family have contact with her and he writes to her occasionally. He would like to reconnect with her.

32. He said this offence was random. I would accept that. There is no indication of any planning or organisation in his decision to break into this home. He asserts that he was shocked when he found the victim awake and had he appreciated her age, he would not have gone into the home. He said he threatened her because he thought it would get him out. That carries the implication that he had no intention to cause her harm, which I accept. He accepts the representations in the victim impact statement as a fair reflection of how she would feel as a consequence of his misconduct and expresses disgust and shame. He will return to live with his foster father who he describes as his biggest support. There is reference to him having been diagnosed by Headspace when he was a child but there is nothing before me regarding that. He clearly is someone in need of help.

Sentence

49. I am asked to structure a sentence so that he will have the opportunity to go to the programme at Parklea. I believe that is the best option for this offender.

50. I am going to impose an overall sentence of imprisonment for 4 years. I am going to specify a non-parole period of 2 years and 3 months. I am satisfied that there are special circumstances. These are predominantly the risk of institutionalisation which I need to address but there is also a need for him to be on parole for a longer period of time so that he can benefit from the supervision that will be provided after he has the benefit of the programme at Parklea to address his misuse of drugs.

51. The sentence will commence on 15 November 2018. I have applied the discount of 25%. It actually will be a little more than that to achieve a sentence that is expressed in years rather than the odd days which I have abandoned. I will certify the Form 1 to confirm that I have taken it into account.

52. The offender is convicted of the offence of aggravated break, enter and steal, in the circumstance of aggravation that there was a person on the premises. I have taken into account the additional offence.

53. I specify a non-parole period of 2 years and 3 months commencing on 15 November 2018 and to conclude on 14 February 2021. There is a balance of 1 year and 9 months [1] during which the offender will be eligible for consideration for release to parole. That will commence on 15 February 2021 and expire on 14 November 2022.

    1. I misspoke here first announcing a parole period of one year and ten months. When my error was exposed I corrected the period to one year and nine months as appears.

54. Being a sentence of more than 3 years, he will be eligible for parole if his behaviour in custody is of the appropriate standard.

55. Pursuant to the Drug Court Act 1998 I think it is, I shall refer the offender for inclusion in the program conducted at Parklea Correctional Centre to address his drug addiction.

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Endnote

Decision last updated: 23 July 2019