R v Whalan

Case •

[2021] NSWDC 812

•

29 September 2021

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Whalan [2021] NSWDC 812
Hearing dates: 28 May 2021; 3 August 2021; 6 September 2021; 20 September 2021
Date of orders: 29 September 2021
Decision date: 29 September 2021
Jurisdiction:Criminal
Before: Sutherland SC DCJ
Decision:

At [100]-[109].

Catchwords:

CRIME – Sentence – aggravated break and enter – section 166 certificate – aggregate sentence – multiple offences – entrenched recidivism

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007(NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

R v Bugmy (2013) 302 ALR 192

R v Imbornone [2017] NSWCCA 144

R v Price [2016] NSWCCA 50

R v Qutami (2001) 127 A Crim R 369

R v Wong [2003] NSWCCA 247

Category:Sentence
Parties: Crown
Shaun Whalan
Representation:

Ms F Evans (Crown)
Mr R Keller (Offender)

Solicitor for Public Prosecutions (Crown)
Blaxland Criminal Law (Offender)
File Number(s): 2019/0076217

sentence

  1. These are sentence proceedings against Shaun Whalan. As will become clear in the course of these Remarks, he epitomises, at 37 years of age, a life which he has thus far predominantly wasted. He truly reflects the revolving door of incarceration, conditional release, and then further incarceration on a repeated basis. Shaun Whalan originally appeared for sentence before this court following his plea of guilty to one charge contrary to section 113(2) of the Crimes Act 1900 (NSW), of breaking and entering a dwelling house with intent to commit larceny in a circumstance of aggravation, namely being in company. Such an offence carries a maximum penalty of 14 years imprisonment. There is no standard non-parole period.

  2. A number of additional matters had also been brought to the District Court from the Local Court pursuant to s.166 of the Criminal Procedure Act 1986 (NSW). I will come to the detail of those later in these Remarks.

  3. The matter proceeded as a sentence hearing before me on 28 May 2021. In the course of submissions it became clear that there were outstanding matters in the Local Court both at Blacktown and Dubbo Local Courts which, in the interests of finalisation of all matters and a proper utilisation and application of the principle of totality, have now been brought before this Court so that all matters outstanding against the offender can be resolved in the one proceeding. I will come to the detail of those additional matters in the course of outlining the relevant chronological background and history.

SECTION 113(2) OFFENCE: 26 FEBRUARY 2019

  1. I turn first to the s 113(2) offence on 26 February 2019. The factual background to the substantive offence originally before this Court is that the offender, together with another man, Kevin Witchard, and also an unidentified third man, broke into premises at Doonside Crescent, Blacktown on 26 February 2019. The two identified offenders each had very distinctive tattoos on their legs and were readily identifiable on CCTV footage recorded at the premises. Each of the offenders had a long history of break and enter offences as well as larceny and robbery matters over many preceding years. Each of them would appear to have also had ongoing extensive problems relating to the use of illicit drugs.

  2. The co-offender, Witchard, would appear to have had the principal role in the commission of the substantive offence and was described in the Crown’s helpful written submissions as appearing to be the ringleader of the group. Witchard knocked on the windows and doors of the premises and appeared to check that nobody was in the premises whilst the present offender and the unidentified third co-offender stood waiting on the front lawn. The three men then broke into the premises through a window although the damage was described as “relatively minimal”.

  3. As the Crown points out, just why the offenders elected to break into a house which they knew was obviously protected by a CCTV surveillance system, wearing no disguises and wearing shorts with bare legs, thereby leaving their distinctive tattoos completely visible, is “particularly puzzling”. One suspects that the likely ingestion of illicit substances might go some way in explaining such abject stupidity.

  4. After entering the premises, the three men would appear to have been wandering through the house when one of the householders returned to the premises. Upon being asked what they were doing in the house, the three offenders went to depart through the back door of the premises. The householder advised them that it was locked and that they should leave through the open front door. The statement of Agreed Facts indicates that the three men obeyed and left the premises through the front door. They departed in a vehicle which the facts tendered against the co-offender indicated was a vehicle registered to Witchard’s de facto. Nothing was stolen from the premises.

  5. In terms of the objective seriousness of the specific offending, the Crown submits that the offending is towards the low-range of objective seriousness. On behalf of the offender, Mr Keller of counsel submits that on the objective facts the offence is at the lowest range of objective seriousness. Other than the incurring of minimal damage in breaking into the building, it is difficult to conceive of a less objectively serious example of this particular crime.

  6. Before turning to the extensive criminal history of Mr Whalan it is appropriate to note that following the break and enter on 26 February 2019 he was arrested and charged with the offence on 8 March 2019. He was at that time bail refused in part because of his prior extensive history and undoubtedly in part because he was at that time still subject to an order for parole with respect to an earlier group of offences.

RELEVANT EARLIER OFFENDING

  1. I turn to the relevant earlier offending. The earlier offending with respect to which he was on parole at the time had been the subject of sentences imposed in the Local Court on 18 October 2018. The offending conduct involved two offences of breaking and entering which had occurred in March 2018 as well as a police pursuit and driving whilst unlicensed which had occurred in the same month. On 18 October 2018, he had been sentenced to 26 months imprisonment with a non-parole period of 13 months which was to date from the time of his arrest, namely 26 March 2018. He had remained in custody since that time.

  2. Those sentences were the subject of an appeal to the District Court against severity. On 4 December 2018 when the matter came before the District Court, Judge M Williams SC released the offender pursuant to an order under s.11 of the Crimes Sentencing Procedure Act 1999 (NSW). The matter was adjourned until 14 May 2019 and the offender was given the opportunity by Judge Williams SC of attending the Marrin Weejali program.

  3. Notwithstanding previous experience with that program and the opportunity given to him by Judge Williams, the index offending with which I am concerned occurred during the period of the adjournment, namely on 26 February 2019.

  4. As I have indicated above, the offender was arrested with respect to the current offence on 8 March 2019. He was, as I indicated earlier, then refused bail and remanded in custody.

  5. When the appeal matter before Judge Williams came back before the Court on 14 May 2019 the offender was in custody, being bail refused on the present offence. His Honour was left with little alternative but to dismiss the appeal and confirm the orders of the Magistrate, namely 26 months with a 13 month non-parole period backdated to 26 March 2018. Accordingly, the non-parole period had expired. The offender remained in custody, bail refused, with respect to the principal matters before me.

  6. The head sentence which was being served was due to expire on 25 May 2020 and the offender remained in custody, bail refused on the present offence.

  7. On 12 July 2019 he was granted bail. His bail on that occasion was conditioned, together with a curfew, that he reside at an address in Dubbo.

SUBSEQUENT CHARGES AND OFFENDING WHILST s113(2) MATTER STILL PENDING

  1. The offender remained on conditional liberty for a little over 4 months before he was again arrested and charged at Blacktown on 26 November 2019. He was refused bail. I do not have the details of the charge or charges on that date but am advised by counsel that those charges were in due course withdrawn. It was said from the Bar Table, and I accept, that the reason for the refusal of bail with respect to those subsequently withdrawn matters was the existence of the present offence.

  2. In the event, he was again released to bail after approximately 3 months and 1 week, namely on 4 March 2020.

STALK/ INTIMIDATE – S 13(1) CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007

  1. Whilst I do not have the details of the bail which was granted to him on that occasion it would appear that he was bailed to reside with his long-term on-and-off again partner, with whom he shared three children, at the premises leased by her in Musgrove Crescent, Doonside. I do note that in subsequent material provided to me, it is suggested that he was not permitted to leave the premises other than in the presence of Ms Craig. On 21 November 2020 the offender and his partner, Clarissa Craig, got into an argument over the conditions of the offender’s bail. Ms Craig told him to change the residential condition and said to him “I don’t want you in my care anymore”. The offender accused her of cheating on him and called her a variety of derogatory terms. It would appear, however, that Ms Craig and the children then did drive the offender to Blacktown Police Station where he reported on bail. His record indicates that he did not hold a driver’s licence himself. It would appear that they departed the police station separately and I am unaware as to any change of his residential conditions at that time.

  2. At about 8:00am the following day, 22 November 2020, Ms Craig was woken by the offender who was complaining about being in pain and asking about a bag. The Facts presented to me do not reveal whether he stayed at her residence the previous night or not. An argument again ensued and the offender demanded that she take him to the police station to report. I note from his record that he had in fact been disqualified from holding a licence for 3 years commencing on 14 May 2019 following the police pursuit which had occurred in March 2018.

  3. Ms Craig refused to take him to report because of the way he was speaking to her and abusing her. The argument escalated and the offender threatened Ms Craig that she should have someone on the phone 24/7 because she wouldn’t know when he was coming. He told her “I should jump all over your head” and said to her “I am going to get you got”. The offender left the premises and Ms Craig locked her house and left with her children to stay with a friend.

  4. In due course the offender was charged in relation to these threats with an offence of stalk or intimidate with intent to cause fear of physical or mental harm. Such an offence is a contravention of section 13(1) of the Crimes (Domestic and Personal) Violence Act 2007 (NSW) and carries a maximum penalty of five years imprisonment. It has been brought to this court from Blacktown Local Court and is now the second substantive offence for which the offender appears for sentence.

DESTRUCTION OF WINDOWS OF TOYOTA LAND CRUISER – S 195(1)(a) CRIMES ACT 1900 (NSW); LARCENY OF GOODS FROM LAND CRUISER – S 117 CRIMES ACT 1900 (NSW); GOODS IN CUSTODY FROM ANOTHER VEHICLE – S 527C(1)(a) CRIMES ACT 1900 (NSW); POSSESS CANNABIS – S 10(1) DRUG MISUSE AND TRAFFICKING ACT 1985 (NSW)

  1. However, prior to being arrested and charged with that intimidation offence, the offender variously committed a series of offences the next day, 23 November 2020. In the early hours of 23 November 2020, at approximately 1:00am, the offender smashed the windows of a Toyota Land Cruiser in Marayong, a suburb adjacent to Blacktown, and removed a variety of items which had been left in the vehicle including earphones, sunglasses, a satellite phone, CB hand-held radios, torches and other items likely consistent with the vehicle being owned by a tradesman.

  2. In the course of committing that offence the offender cut himself on the glass window leaving behind a small blood stain inside the vehicle.

  3. Later the same day, the offender broke into another vehicle in Blacktown by smashing a window. A wallet and its contents were stolen from that vehicle.

  4. During the course of that very day, namely 23 November 2020, Ms Craig attended Blacktown Police Station where she provided an extensive statement regarding the threats and abuse directed at her by the offender the previous day. Police applied for an urgent ADVO for the protection of Ms Craig and the children and began to look for the offender.

  5. At 9:45am the following day, 24 November 2020, police located the offender back at Ms Craig’s residence at Musgrove Crescent, Doonside. He was arrested and charged with the intimidation offence. As I have already indicated that offence is now before this Court as a substantive matter for sentence.

  6. At the time of his arrest police searched the offender and located 1.47 grams of cannabis in a small plastic bag in his pocket.

  7. In due course items stolen from both vehicles on the previous day were also located. The personal identification items in the stolen wallet from the second car were readily identifiable and the offender was originally charged with two counts of goods in custody relating to the items from the separate vehicles, as well as a single offence of possession of cannabis.

  8. Those were the first three matters included on the s.166 certificate dated 27 May 2021 which was originally before me. I note that the second sequence has been discontinued and there are accordingly two charges on a section 166 certificate dated 16 August 2021 which remain before me as related offences.

  9. With respect to the first vehicle at Marayong that had its window smashed and from which in excess of $3,000 worth of items including a satellite phone, hand-held radios and various other items had been taken, the offender was charged with an offence of intentionally destroying property contrary to s.195(1)(a) of the Crimes Act 1900 (NSW) and also larceny of the property from the vehicle contrary to s.117 of the Crimes Act 1900 (NSW). Each of those offences has also been brought to this Court pursuant to a s.116 Certificate dated 26 May 2021.

  10. Following his arrest and charging with the intimidation offence against his partner, the offender remained in custody, bail refused, between the date of his arrest on 24 November 2020 until he was granted bail on 3 December 2020.

BREAK AND ENTER IN ORANGE – S 112(1) CRIMES ACT 1900 (NSW)

  1. I turn now to the break and enter in Orange contrary to s 112(1) of the Crimes Act 1900 (NSW). He was again bailed to reside at an address in Dubbo. At some time between 11:00am and 9:30pm on Christmas Day 2020 the offender smashed the rear window to premises in Summer Street, Orange. He ransacked a number of rooms and stole a variety of items from the premises. He stole an iPad worth an estimated $1,000 and an internet modem. He also took jewellery estimated to be worth $3,000. A forensic analysis of the premises ultimately yielded the fingerprints of the offender.

  2. Prior to being identified with respect to the break and enter in Summer Street, the offender was arrested and charged on 10 February 2021 with the offence of smashing the window of the Toyota Land Cruiser and theft of the various items that had been taken from that vehicle in the early hours of 23 November 2020. I would infer that he had been identified as a consequence of a DNA comparison from the blood stain in the vehicle. The whereabouts and manner of disposal of the various items taken from that vehicle are not revealed in the Facts tendered before me. It would appear that the offender was granted bail after being charged with those offences on 10 February 2021.

  3. The identification of his fingerprints from the premises at Summer Street occurred subsequently and on 19 February 2021 he was yet again arrested. On this occasion, he was charged with the break and enter of the premises in Summer Street, Orange on 25 December 2020 being an offence contrary to s.112(1)(a) of the Crimes Act 1990 (NSW). That offence has now been brought before me in these proceedings as a substantive offence. It carries a maximum penalty of 14 years imprisonment. There is no non-parole period.

  4. It is appropriate to summarise what is now before me. There are three substantive offences:

  1. Break and enter dwelling house with intent in company being the original matter before me relating to the premises at Doonside Crescent, Blacktown on 26 February 2019. As I have indicated this offence is contrary to s 113(2) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 14 years imprisonment.

  2. Stalk/intimidate with intent to cause fear relating to the threats and intimidation directed at his partner, Ms Craig on 22 November 2020. This contravenes s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and carries a maximum penalty of 5 years imprisonment and/or a fine of $5,500.

  3. The break, enter and steal at Summer Street, Orange on Christmas Day 2020. This is a contravention of s 112(1) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 14 years imprisonment.

  1. Four additional matters have been brought to this court as related matters pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). They are:

  1. The possession of 1.47g of cannabis which he had at the time of his arrest at his partner’s home on 24 November 2020. This contravenes s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and carries a maximum penalty of 2 years and/or a fine;

  2. Goods in custody relating to the personal items taken from the vehicles that had been broken into in the early hours of 23 November and which were located in his custody at the time of his arrest on 24 November. This is an offence contrary to s 527C(1)(a) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 6 months imprisonment;

  3. An offence relating to the smashing of the windows of the Toyota Landcruiser on 23 November 2020, being an offence of intentionally or recklessly destroying property. This contravenes s 195(1)(a) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 5 years imprisonment when dealt with on indictment and a jurisdictional limit of 2 years when dealt with summarily;

  4. Larceny of the property removed from the Landcruiser valued at $3,189. This contravenes s 117 of the Crimes Act 1900 (NSW) and carries a maximum penalty of 5 years imprisonment on indictment and 2 years when dealt with summarily.

CO-OFFENDER WITH RESPECT TO BREAK AND ENTER AT BLACKTOWN ON 26 FEBRUARY 2019

  1. I turn to a consideration of the co-offender with respect to the break and enter at Blacktown on 26 February 2019. Kevin Witchard pleaded guilty on 26 April 2019 at Blacktown Local Court to the offence of break and enter in company with respect to the offence at Doonside Crescent, Blacktown on 26 February 2019. He was sentenced to 13 months imprisonment. It would appear that the presiding Magistrate imposed a fixed term.

  2. Witchard was on parole for break and enter offences at the time. He was described in the antecedents as having a history of drug abuse and being unemployed. The facts tendered in the Local Court indicated that he had been charged on 22 previous occasions by NSW Police.

  3. Witchard was some 3 years younger than the present offender, having been born in October 1987. His criminal history commenced in Taree Children’s Court shortly after his tenth birthday and he was charged and brought before that court on a number of occasions over the following two years. He continued thereafter to appear in the Children’s Court with consistent regularity for offences including shoplifting, larceny and damage to property. He was placed on probation at the age of 16 with respect to assault and additional larceny matters.

  1. In 2006, shortly after he had turned 18, he was arrested and charged with a variety of offences including assault with intent to rob while in company; wounding occasioning grievous bodily harm; robbery in company; and assaulting and resisting police. Various sentences were imposed in the Local Court and subsequently in the District Court.

  2. A Crown appeal against the inadequacy of the District Court sentence resulted in an increased sentence being imposed by the Court of Criminal Appeal. The upshot was that Mr Witchard remained in custody from January 2006, as I say about 3 months after he turned 18, until September 2009 when he was released to parole.

  3. He was charged with common assault in March 2010 and subsequently appears to have remained at large with warrants for his arrest outstanding. He was arrested on 29 June 2011 and returned to custody. His parole was revoked and in December 2011 he was sentenced with respect to the outstanding common assault and also a number of counts of break and enter which resulted in him remaining in custody until June 2013.

  4. Following his release he again committed a not insubstantial break and enter which led to a further period of imprisonment from March 2014. He remained in custody until his release yet again to parole in 2015.

  5. He subsequently committed a further series of aggravated break and enters and larceny offences which saw him returned to a term of imprisonment in March 2016. He was not released to parole again until July 2018. The instant offending involving the break and enter in company at Doonside Crescent, Blacktown occurred on 26 February 2019 whilst Witchard was still on parole. As indicated earlier, he was sentenced to 13 months fixed term for the present relevant offending. That sentence was imposed on 26 April 2019 at Blacktown Local Court. A series of additional offences were dealt with at Blacktown Local Court in June 2019 which were similarly backdated to March 2019 and led to ongoing incarceration for those other matters. I note in passing that a variety of additional offences have subsequently occurred and in 2020 he was progressing by way of sentencing in the Parramatta Drug Court.

  6. I have taken the time to endeavour to analyse Witchard’s past criminal history in some detail in order to form an assessment as to the appropriateness of questions of parity with respect to the sentence imposed on him for the break and enter at Doonside Crescent. As noted in the Crown material, he was perceived to be the ringleader in the offence with which Shaun Whalan is also charged.

SUBJECTIVE FEATURES

  1. I turn to subjective features of the offender. Whalan was not called to give any evidence in the proceedings before me. His subjective background has been provided to the court originally by means of a psychological report from Mr Chafic Awit. I am, of course, conscious of the reserve which the court must entertain in receiving mitigatory accounts through the medium of a third party, particularly where such account remains untested by cross-examination and not on oath (see Qutami v R (2001) 127 A Crim R 369; Imbornone v R [2017] NSWCCA 144).

  2. The offender was born in Sydney and was the youngest of three siblings. His parents divorced when he was only 5 years-old. Notwithstanding his youth, he recalled years of domestic violence between his parents. He told the psychologist of his understanding that a twin foetus when his mother was pregnant with him had died prior to his birth as a consequence of an assault by his father.

  3. After his parents had divorced, he had no contact with his father who subsequently passed away in 1999.

  4. The offender described his understanding that his mother had a small sum of money after the divorce which ran out after a number of years. He said that they had been forced out of their residence as a consequence of the inability to pay rent when he was only 7 years of age. He described living on the streets with his mother and siblings for about 3 months. He described that period as a “scary” period in his life and indicates a clear memory of being worried that something bad was going to happen.

  5. His maternal grandmother took them in after 3 months and they lived with her for about 8 months before the Housing Commission located a residence for them in Wollongong.

  6. His mother then entered a new relationship with another man. According to the offender, the man was physically abusive towards him and his sister. The offender described one occasion when he and his sister were tied up by the man who was described as “planning on raping them.” According to the offender’s account, the man was subsequently charged with respect to those offences. The offender said his mother has not been in a relationship since that time.

  7. Although the offender, Shaun Whalan, identified the man who he describes as having been charged with such offending to the psychologist, no material confirming the convictions or proceedings have been provided to this court. In such circumstance, I have not used the name provided by the offender. This should not be taken to mean that I do not accept his account, at least at face value.

  8. The psychologist, in his report, gives cursory detail regarding the offender’s schooling. The offender did not remember the school he first attended but said that he had attended Claymore Public School during his primary school years between Years 4 and 6. He told the psychologist that he had never attended high school and stayed at home with his mother.

  9. The offender advised the psychologist that his father had died when he was approximately 15 years of age and that thereafter his behaviour “worsened.” He described feeling hurt at losing the belief that he had held that their father would come back and, in his words, “be a hero to the family.”

  10. His first appearance in the Children’s Court at the age of 16 resulted in a control order under the Children’s Court legislation for an offence of attempting to escape lawful custody as a detainee. The record does not indicate the basis upon which he had been detained. A short time after being charged with that matter, he was fined for damaging property. Shortly before his 17th birthday he was charged with offences relating to driving a stolen vehicle and being unlicensed for the class of vehicle. He was subjected to further control orders.

  11. I note that the offender has described having been molested whilst placed in a Juvenile Justice Centre for a period of 18 months. The records produced to me do not assist in ascertaining the accuracy of the length of time that he was in a Juvenile Justice Centre, although it certainly appears to have been at least 8 months.

  12. Only days after his 18th birthday in May 2002, Mr Whalan was arrested and charged with larceny. The value of the larceny was said to be under $2000. He was apparently refused bail following his arrest on 21 May 2002, being the day of the offending. In August 2002, he was sentenced to 3 months imprisonment which was backdated to the date of his arrest.

  13. Following his almost immediate release in August 2002, he committed a robbery whilst armed with an offensive weapon in November 2002. He was arrested and charged on the day of the offence on 5 November 2002. He was also charged with a robbery in company that was said to have occurred the previous day, 4 November. In due course he was sentenced in the District Court with respect to both robberies to a total of 4 years 3 months imprisonment with a non-parole period of 21 months backdated to the date of his arrest.

  14. He was ultimately released to parole on 17 March 2005. He would appear to have not been released to parole when he was first eligible as a consequence of a raft of offences with which he was charged during his incarceration. These included failing to comply with Corrective Services routine; disobeying directions; fighting; possession of drug implements; failing urine tests; assaults; and unlawful use of a telephone, amongst other institutional offences.

  15. A little over a month after his release, he was again charged with a break and enter offence and stealing in excess of $15,000 worth of goods. He was bail refused and in July 2005 was sentenced to a further two years imprisonment with 18 months non-parole.

  16. He was next released to parole in March 2007 only about 6 weeks before the head sentence was due to expire. I would again infer that he was not granted parole when he first became eligible as a consequence of additional institutional charges.

  17. After being released to parole on 11 March 2007, he was again arrested and charged in August 2007. The offences on that occasion were a further break and enter as well as additional summary matters including common assault and possession of a prohibited drug.

  18. Whilst in custody, bail refused, he was charged with additional offences in January 2008. These were two break, enter and steal offences which had occurred immediately prior to the offence for which he had been arrested on 26 August 2007. All matters were subsequently dealt with at Liverpool Local Court in April 2008. Whalan was sentenced to concurrent sentences of 12 months with non-parole periods of 9 months which were backdated to the date of his arrest. He was consequently released to parole on 27 May 2008.

  19. Shortly before his release, namely on 19 May 2008, he was charged with an additional offence of break, enter and steal which had occurred on 19 July 2007. One can but presume that DNA or other identification evidence had been slow to materialise. I would assume that he was bailed with respect to that matter notwithstanding that he had been in custody when initially charged on 19 May 2008.

  20. Following his release from custody, but with that 19 July 2007 matter still hanging over his head, he committed further offences in December 2008. He was returned to custody on 3 December 2008. It would appear that his arrest at that time derived from a number of historical break and enters which had occurred as early as 2005 and then a series of offences in July and September 2008. He was ultimately charged with the 1 December 2008 break and enter in February 2009. In October 2009, he was sentenced at Liverpool Local Court to 12 months for that offence backdated to commence on 3 December 2008. With respect to the earlier break and enter with which he had been charged whilst still in custody in May 2008, he was sentenced on the same date in Liverpool Local Court to 24 months with a non-parole period of 18 months to date from the expiry of the first sentence to which I have just referred, namely to date from 3 December 2009.

  21. He remained in custody and the matters with which he had been charged on 3 December 2008 ultimately came before Parramatta District Court on 1 February 2010. On that occasion the variety of break and enter offences, which would appear to have been some four or five in total, some of which were dealt with by way of Form 1, resulted in the longest sentence of 2 years 8 months commencing on 3 December 2010 with a non-parole period of 16 months.

  22. The cumulative effect of all of those sentences and non-parole periods meant that he remained in custody between 3 December 2008 until his release to parole on 2 April 2012.

  23. In October 2012 he was arrested and charged with a number of offences which appear to relate to domestic violence. He was charged with stalk/intimidate; destroy or damage property; common assault; and contravening a restriction in an Apprehended Domestic Violence Order. He was granted bail with respect to those matters but was returned to custody approximately one week later as a consequence of the revocation of his parole. In December 2012 he received section 9 bonds with respect to the common assault and the contravention of the ADVO. He was subsequently again released to parole on 16 February 2013, undoubtedly as a consequence of the imposition of non-custodial penalties.

  24. An examination of the detail of his custody record indicates that his parole was revoked and he subsequently remained in custody serving a balance of parole for an earlier sentence until the expiry of the sentence on 2 August 2013. It is unclear what additional charges he was facing at that time but he remained in custody until released on bail on 7 November 2013. Whilst the records do not help in resolving the question, I would draw the inference that he may well have been acquitted of whatever led to his arrest in May 2013 and the subsequent revocation of parole.

  25. He was next arrested in July 2014 in Dubbo with regard to a number of counts of assault. He was released to bail the following day and failed to appear at Dubbo Local Court on the 29th of August 2014. Warrants were issued for his arrest. He was subsequently arrested at Blacktown on 12 September 2014 and returned to custody. On 30 October he was sentenced with respect to the failure to appear and the various assault charges to an effective 12 months term of imprisonment. The assaults were said to be domestic violence related. On the same day he was sentenced to an additional common assault and a stalk/intimidate offence which had occurred, presumably in Dubbo, on 24 August 2014, to additional terms of imprisonment of 12 months with a 9 month non-parole period. Those sentences were delayed as to the start date to 12 March 2015. They were, accordingly, cumulative on 6 months of the earlier sentences for assaults which had occurred in July 2014 and which were similarly related to domestic violence. The offender was ultimately released to parole on 11 December 2015.

  26. He remained at large for almost 9 months. This would appear to have been his longest period of time out of custody since his 18th birthday. He was now 31 years of age.

  27. In April 2016, he was charged with destroying or damaging property. He was granted bail for that offence and was ultimately sentenced to a section 9 bond for 12 months when the matter came before Blacktown Local Court in June 2016.

  28. In August 2016, he was again charged with destroying or damaging property relating to a domestic violence incident. He was called up with respect to the breach of the section 9 bond and the matters were still pending when he was again arrested and charged on 31 August 2016 with larceny offences and a break, enter and steal which had occurred a week earlier on 23 August. He remained in custody from the date of his arrest. In December 2016, he was sentenced with respect to the larcenies and the break and enter to an effective 12 months with a nine month non-parole period. His breach of the bond and the additional destruction or damage of property were each dealt with by way of section 10A with a conviction recorded but no additional penalty. He was in due course released to parole on 31 May 2017.

  29. I should note that there were additional offences dealt with on 22 December 2016 of goods in custody and larceny as well as driving whilst never licensed which bear no particular significance in a review of his history.

  30. Before leaving the plethora of charges before the court on the date in December 2016, I should also note that he was in possession of a small quantity of drug which apparently remained in his possession when he entered the detention centre. A concurrent sentence of 3 months was imposed with respect to that additional matter.

  31. In March 2018 he committed break and enter offences on 3 separate occasions in the space of four days. His arrest followed a police pursuit with which he was also charged. A further offence of possession of a prohibited drug found its way onto a Form 1. He was again bail refused.

  32. In October 2018 at Blacktown Local Court, he was sentenced to an aggregate sentence of 26 months with a non-parole period of 13 months. A severity appeal was lodged against that sentence and he was released to bail on 4 December 2018. On 4 December 2018 the appeal matters came before Judge M Williams SC in the District Court. As I indicated much earlier in these Remarks, Judge Williams released the offender and adjourned the proceedings pursuant to section 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW). His Honour granted that adjournment for the specific purpose of giving the offender the opportunity of attending the Marrin Weejali Program. During the period of that adjournment, the substantive offence relating to the break and enter in company at Doonside Crescent, Blacktown on 26 February 2019, together with Witchard and the unknown third person took place. As indicated at the commencement of these Remarks, the offender was arrested and charged with that offence on 8 March 2019 and returned to custody. He was bail refused at that time.

  33. On 14 May 2019 at the Downing Centre District Court, the sentence which had been imposed at Blacktown Local Court in October 2018 with respect to the police pursuit and the break and enter was confirmed. Notwithstanding the grant of bail, the sentences were backdated to have commenced on 26 March 2018.

  34. As I indicated when endeavouring to outline the chronology of the offending before me, the offender remained in custody serving that aggregate sentence notwithstanding that he had become eligible for parole on 25 April 2019. He remained bail refused with respect to the Blacktown offence until he was again granted bail on 12 July 2019. As I indicated earlier, that was conditioned together with a curfew, that he reside in Dubbo. The balance of his offending has been dealt with chronologically earlier in these Remarks from paragraph [17] and following.

  35. Before leaving his subjective matters, I should indicate that following the inclusion of the additional matters before me, the Court received a letter of apology from the offender dated 26 August 2021 together with a letter from his general practitioner, Dr Nguyen, a summary relating to medication regarding Mr Whalan and also a copy of some emails from Shannon Speechley from the Marrin Weejali Programme.

CONSIDERATION

  1. I turn to a consideration of the present matters. It is trite to observe that the purposes of sentencing involve a number of competing factors, some of which have a tendency to pull in opposite directions. In the case of what would appear to be entrenched recidivism, the protection of the community needs to be given adequate weight in addition to consideration of ultimate, albeit optimistic, prospects of rehabilitation.

  2. The present matter has some unusual aspects. The easy course for this court would have been to sentence the offender for the single substantive offence which was originally brought to the District Court, together with the summary offences before the court on a section 166 certificate.

  3. As I indicated earlier in these Remarks, it became clear in the course of submissions, and indeed towards the end of them, that there were outstanding matters in the Local Court both at Blacktown and in Dubbo. It is unclear whether those matters would all have been dealt with summarily, although one harbours a strong suspicion that that was a likely outcome.

  4. In all of the circumstances and primarily as a consequence of a necessary consideration of the principle of totality, steps were taken to effectively gather all matters from the different Local Courts and have them brought to this court so that all of the disparate offending could be finalised in the one proceeding.

  5. The first substantive charge relating to the break and enter in company in Doonside Crescent, Blacktown resulted in the co-offender, acknowledged by the Crown to have been the ringleader, being sentenced in the Local Court to a term of imprisonment of 13 months.

  6. Notwithstanding the different jurisdiction, it is relevant to give consideration to questions of parity - see Kirby J in R v Wong [2003] NSWCCA 247 at [35].

  7. That particular offence falls to the lower range of objective seriousness for offences of its kind and I will bear in mind the consideration of parity in determining the appropriate sentence.

  1. The existence of numerous prior offending, and indeed subsequent offending, for such similar types of crimes, whilst not aggravating the particular individual matter deprives the offender of considerations of leniency.

  2. The second substantive offence of intimidating his partner by verbal threats is a matter of considerable concern. The relationship has been described as on again and off again and it is relevant to note that the offender has a past history of domestic violence-related offending. In 2012 he was fined in the Local Court for offences of stalk/intimidate as well as the destruction or damage to property. He was placed on a section 9 bond for a common assault related to domestic violence and for the contravention of an Apprehended Violence Order. In July 2014 and again in August 2014 he was charged with domestic violence-related offences including common assault, assault occasioning and stalk/intimidate. He was sentenced to terms of imprisonment of up to 12 months with respect to that offending. The material before me does not permit a definitive understanding as to whether this was with the same partner, Ms Craig, although it is likely that it was.

  3. The actual threats on this occasion arose in the context of him having been bailed to reside with her and to be subject to a restrictive condition whereby he was subject to a curfew unless in her company leaving premises. A break down, or at least hiccup, in their personal relationship led to her telling him to change the conditions of the bail as she did not want to have responsibility for him anymore. She was refusing to drive him to the police station to report when he uttered the verbal threats. I agree with the Crown’s submission that there are no factors which significantly elevate the seriousness of the offence. However, I acknowledge, as the Crown does in its submissions, that principles of specific and general deterrence are important considerations particularly given the offender’s past history.

  4. The break, enter and steal offending in Orange, which constitutes the third substantive offence before me, involved minimal damage to the glass of one window and the theft of a comparatively small quantity of goods both in value and quantity. The Crown submits that the offending falls below the mid-range of objective seriousness and towards the lower end of objective gravity. I agree.

  5. The section 166 matters would all, undoubtedly, have been dealt with in the Local Court but for the current proceedings. The items in the offender’s possession on 23 November 2021, namely 1.47g of cannabis, and a number of personal items from wallets taken from one of the vehicles he broke into, fall, as the Crown has submitted, at the low end of objective seriousness. The damage to the windows of the Toyota Land Cruiser and the theft of more than $3000 worth of items, consistent with belonging to a tradesman, would have occasioned a not inconsiderable loss as well as a degree of inconvenience with regard to the repair of the vehicle. I will take those factors into account.

  6. As I indicated at the outset of these Remarks, this offender is a classic example of ongoing and repeated recidivism. He has been given a variety of opportunities, including most recently his Honour Judge Williams SC granting a section 11 adjournment to permit him to attend the Marrin Weejali program. I note that they remain supportive of him and I have had regard to the email from Mr Shannon Speechley.

  7. As I have noted earlier, the offender has written a letter of apology dated 26 August 2021. In conjunction with the information provided through the psychologist, there are aspects of his upbringing which require a consideration of R v Bugmy (2013) 302 ALR 192 principles. That having been acknowledged, his aspirational intent at taking appropriate steps towards rehabilitation must, of necessity, be guarded. He does indicate a degree of remorse and contrition, particularly in the insight to the effect of his offending upon the innocent victims as he has expressed in that correspondence. Notwithstanding that it is not sworn testimony, nor subject to cross-examination, I accept the honesty of his expressed intentions for the future. That, of course, must be tempered by the experience repeatedly demonstrated in his past conduct.

  8. I have also had regard to the present circumstances regarding the pandemic and the letter from his General Practitioner which indicates him being prone to severe COVID-19 infection.

  9. I am unaware, on the material before me, as to whether he has been vaccinated or not. I will, however, bear in mind the circumstances of incarceration in the present ongoing situation.

  10. A further difficulty arises in determining an appropriate backdated start point for an appropriate sentence. As would be clear from the narrative outline of his periods of incarceration and the sequences of different offending, the periods of liberty, and the periods of revocation of parole, this is not an easy and simple arithmetical calculation.

  11. The parties have reached some level of agreement regarding the time spent in custody to date and I propose that the aggregate term which I will shortly impose should be backdated by 1 year 3 months.

  12. I propose to proceed by way of an aggregate sentence pursuant to the provisions of s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  13. With respect to the first substantive offence of break and enter in company at Doonside Crescent, Blacktown, bearing in mind the sentence imposed on the co-offender, there will be an indicative sentence of 13 months.

  14. With respect to the stalk/intimidate offence, there will be an indicative term of imprisonment of 8 months.

  15. With respect to the break, enter and steal offence in Orange, there will be an indicative sentence of 2 years.

  16. I propose to take into account the summary matters in determining the appropriate aggregate – see R v Price [2016] NSWCCA 50.

  17. With respect to the possession of the 1.47g of cannabis, I would proceed by way of a conviction being recorded pursuant to section 10A without further penalty.

  18. With respect to the goods in custody, an indicative sentence of 3 months.

  19. With respect to the intentional destruction of the windows of the Toyota Land Cruiser, an indicative sentence of 6 months.

  20. With respect to the larceny of the items from the Land Cruiser, an indicative sentence of 12 months.

  21. There will be an aggregate sentence of 4 years. I make a finding of special circumstances based upon the risk, if not indeed the fact, of institutionalisation and the need for extended supervision upon his release. The non-parole period will be a period of 2 years. The head sentence and non-parole period will commence from 29 June 2020. The non-parole period will expire on 28 June 2022. The additional term will expire on 28 June 2024.

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Decision last updated: 10 August 2022

Cases Citing This Decision

0

Cases Cited

6

Statutory Material Cited

5

The Queen v Williams [2014] ACTCA 30
R v Bugmy [2013] NSWSC 1885
Imbornone v R [2017] NSWCCA 144