R v Young, Nathaniel

[2008] NSWDC 338

CITATION:	R v YOUNG, Nathaniel [2008] NSWDC 338
JUDGMENT DATE:	13 November 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. Non-parole period of 2½ years to date from the 29th November 2007 and expiring on the 28th of May 2010, balance of term 2 years to expire on the 28th of May 2012
CATCHWORDS:	Criminal Law - sentencing - aggravated break and enter and commit corporal violence - standard non parole period offence - impact of absence of resources in rural NSW upon sentencing options commented on - offender disturbed by occupants in course of burgulary - during escape attempts punches thrown and injury occasioned - severe abrasions amounting to degloving occasioned to one occupant - elderly victim - money, watch and phone taken - damage to window occurs during escape - offender seeking money for drug purchases - substantial list of break and enters on criminal history - 25 year old Aboriginal male - disrupted childhood - limited family support - illiterate innumerate - much of adult life lived in custody - drug abuse disorder - high recidivist risk - plea of guilty - standard non parole period not appropriate - finding of special circumstances.
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Gladue (1999) 1SCR 688 [80] R v Cuthbert (1967) 2 NSWR 329 R v Rushby (1977) NSWLR 597 R v Hayes [1984] 1 NSWLR 740) R v Ponfield (1999) 48 NSWLR [327] R v Huynh [2005] NSWCCA 220 R v Hearne (2007) 124 AcrR 457 Thomson and Houlton (2000) 49 NSWLR 383
PARTIES:	Regina Nathaniel Robert Young
FILE NUMBER(S):	2008/00008052
SOLICITORS:	Crown: Mr Coles Defence: Ms Ballesty

JUDGMENT

1. Equal access to justice will only occur when courts are able to make sentencing dispositions without needing to have regard to whether the relevant resources are available in the district to give effect to the orders a judge would make. Judges sentencing in regional and remote centres are continually reminded that the programs, this program or that sentencing outcome is not available in the region the court is serving because of an absence of resources in regional New South Wales. Frequently it is periodic detention that is not available.

2. In Newcastle, access to the compulsory drug program is not available. For that reason, Nathanial Robert Young is denied equal access to justice, because I am unable to order him into a compulsory drug program, the sentencing outcome I would have seriously considered. Novocastrians are also losing because offenders with well-established drug addictions are being released back into this community without access to drug rehabilitation programs as effective as the compulsory drug programs or other programs run by the Drug Court. Those working in the administration of criminal justice in the Newcastle area would have a better idea than I as to the amount of crime in this region that is drug related, but I would be surprised, if it was not substantial.

3. In the absence of closely monitored and effective drug rehabilitation programs, offenders with high to moderate risk of recidivism, such as this offender, are far more vulnerable to re-offending as they become desperate upon release, or shortly after release, for money for drug purchases. Nathaniel Young’s case illustrates the disadvantage to him and those regional centres when it comes to being sentenced at Newcastle.

4. On 28 May 2008 Young pleaded guilty to an aggravated break, enter and steal offence in Tudor Street, Hamilton. Today he is to be held accountable for his criminal acts. As sentencing judge, it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for this offence, before this court, committed by this offender, harming this victim, in this community (see R v Gladue (1999) 1SCR 688 [80]). My initial task requires an assessment of the objective criminality of the offence before the court. I will also need to have regard to matters personal to the offender, subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from evidence before the court relating to both the offence and to the offender.

5. The facts that have been tendered as allegations being made by the Crown do not appear to be in dispute. They constitute the major material before the Court on what happened in the victim’s home. While the offender gave his recall of events, his recall is patchy. He does, however, explain his motivation was to obtain money for drugs. Before any sentence can be made, there are likely to be technical questions relating to deterrence, discount, whether special circumstances are to be found, whether this offence attracts a standard non-parole period and, if so, the length of the parole period and finally, of course, the ultimate length of the term of imprisonment or other penalty to be imposed. None of those matters can be determined until the primary facts are determined. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus the protection of the community, will also need to be determined (see

R v Cuthbert

(1967) 2 NSWR 329, R v Rushby (1977) NSWLR 597, R v Hayes [1984] 1 NSWLR 740).

6. On 17 March 2006, at Hamilton, Nathaniel Young broke into the dwelling house of Trage Trajanovski and, while in the house, committed a serious indictable offence that was larceny, but that was committed in circumstances of aggravation, namely that he used corporal violence on Bogoja Trajanovski and Trage Trajanovski. Bogoja Trajanovski is aged seventy-seven years. He was residing at the time of the offence in his home in Tudor Street, Hamilton with his son Trage, aged fifty, a daughter-in-law, Scojna, aged forty-one, and four grandchildren.

7. At about 10pm on St Patrick’s night, 17 March 2006, he got up from bed to go to the toilet. As he returned he noticed this offender looking through his bedside drawers. Initially he thought it was one of his grandsons looking for Panadol. He said “The tablets are not in that drawer, they’re over here”. This offender said “Money”. The offender then moved to the bedroom window and commenced to climb out. Mr Trajanovski realised it was a burglar and took hold of his arm. The noise must have awakened others. His son Trage and daughter-in-law Scojna came to assist. Young threw a number of punches at the older man, yelling out, “I’ve got a gun”. I am satisfied he did not have a gun but simply called those words out with a view to instilling fear into Bogoja Trajanovski in the hope that he, the accused, would be released.

8. Meanwhile the son went outside to confront the offender and Scojna took hold of the offender’s leg. The offender’s leg was, of course, inside the window frame. Scojna then closed the window onto the offender’s leg. The offender, as he struggled, smashed the window and pulled his leg through. As he did so, one of his shoes and socks came off and fell into the room. The son, Trage, who was outside the window grabbed the offender in a bear hug. The two wrestled on the ground. The offender attempted to bite Trage on the head. Trage, in turn, punched the offender in the groin several times. The offender threw punches at Trage. Trage Trajanovski picked up a garden stake and struck the offender to the forehead. The offender ran from the scene.

9. A neighbour, who is a doctor, arrived at the scene and attended to the victim Bogoja Trajanovski, who had suffered severe abrasions to one of his arms. An ambulance was called and he was taken to the John Hunter Hospital. He had suffered severe lacerations and contusions to his forearm, which the hospital described as de-gloving injuries, exposing the bones on his left hand. The wound was treated using steri-strips and dressings.

10. Police located an orange shirt some distance from the crime scene. It was a shirt that the offender had earlier been wearing, and a blood swab from a rear fence of 105 Chatham Road, Broadmeadow. The offender’s DNA matched the DNA recovered from both of those items.

11. Mr Trajanovski senior noticed a flip-over cardholder containing a hundred and eighty dollars had been stolen by Young. Also missing were various personal cards, such as Medicare, pension and chemist cards, and Omega watch. A Samsung mobile phone had also been stolen by the intruder. None of the property had been recovered.

12. When spoken to at Grafton, the offender consented to providing DNA samples. DNA comparison from the items found earlier mentioned at the crime scene pointed to the offender’s involvement.

Objective Criminality

13. From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of this criminal behaviour. That is done by comparing objectively the criminality exhibited in this offence with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of this offence is evaluated. Not surprisingly, the objective criminality has an important impact upon the overall sentencing outcome.

14. The criminal justice system places great store upon the sanctity of a person’s home. For example, police and other government authorities must seek a court’s permission in the normal course of events before they enter even the most humble person’s abode.

15. Any analysis of sections 112 and 113 of the Crimes Act dealing with offences where breaking and entering is an essential element would yield the inescapable fact that those sections focus upon the crime of breaking and entering the personal space of an occupant as one aspect of the two-pronged crime. The second aspect in this case is the larceny committed.

16. If a person breaks and enters a dwelling, that person is liable to a maximum penalty of ten years. If a person commits a larceny, he is liable, on indictment, to a maximum penalty of five years. In this case the larceny would have been dealt with in the Local Court and it would have been two years’ maximum penalty. But if he breaks and enters a dwelling and commits the larceny, the maximum penalty escalates to fourteen years. Whereas in this case there is an aggravation by the use of corporal violence, that maximum penalty increases yet again to twenty years. In this case there are circumstances, namely the use of corporal violence, that is bodily violence to the victims by this offender, that increased that maximum penalty, as I say, to one of twenty years. Thus, not only has there been an offence aimed at property of the victim, but, in the circumstances of this case, offending also was against the person by way of serious bodily assault.

17. I have already referred to the de-gloving nature of the injury. It would seem, although I may stand to be corrected, that Mr Bogoja Trajanovski did not have to remain at the hospital overnight. Nonetheless, his injury did require medical attention. It is possible these injuries occurred as a consequence of the struggle near broken glass. I am not satisfied the injuries were intentionally inflicted, but it is likely that during the struggle the offender may have foreseen the possibility of injury and continued his struggle reckless as to whether the injury occurred.

18. I noted during submissions that the conduct of the residents of the house, in seeking to secure the offender, was lawful. I am satisfied they were seeking to restrain him in the course of committing a serious indictable offence, for the purposes of arresting him and also for the purposes of reclaiming from him any property stolen from the home. The corporal violence occurred at a time when the offender was seeking to make his escape with stolen property. The initial contact was not initiated by him but by Mr Bogoja Trajanovski. The violence occurring in those circumstances does not have the same level of criminality as violence administered trying to break into or in the course of seeking to commit another offence such as stealing. This violence occurs after the stealing, that is after the asportation of the stolen goods had commenced, asportation the carrying away of the stolen goods. It occurred in those circumstances other than for the purpose of obtaining access to the goods to steal them.

19. The offender’s case is he entered the home for the purpose of obtaining drug money, that is money for drugs. An Omega watch and a mobile phone were also taken. Items such as watches are frequently gifts from loved ones with sentimental attachments for the owner. Mobile phones these days contain much personal information in respect of contact and stored SMS text. The taking of mobile phones has the potential for a serious invasion into the owner’s privacy.

20. In Ponfield’s (1999) 48 NSWLR [327] case the Court of Criminal Appeal promulgated a guideline stipulating a number of matters, eleven of them, that aggravated the seriousness of a break and enter offence. Of course, the corporal violence is an automatic aggravation contained within the nature of the offence itself. But the first of the aggravating features in Ponfield’s case is one that notices, or applies to, offences committed whilst an offender is on conditional liberty, being either bail or parole. That applies in this case. This offender had been given bail a week before this offence and had been released from custody the night before, or the day before this offence. Section 21A(2)(j) mandates the commission of an offence whilst on conditional liberty aggravates the objective seriousness of that offence.

21. The second feature of aggravation in Ponfield’s case relates to the question of whether the offence was professionally planned, organised and the way in which it was executed. I am satisfied the offence was not planned or organised with others, however, this offender has a substantial history of break and enters. There are twenty-nine such offences on his fingerprint record. There are other break and enters on his non-fingerprint record. Whether they are in addition to the twenty-nine already counted or not I am unable to determine. The point is that this offender clearly had skills and expertise in breaking and entering. It is likely his execution was skilfully accomplished on this occasion. His entry into the house was unannounced and appears to have been unnoticed. He was disturbed by the victim returning to his bedroom, probably or possibly from a nocturnal visit to the toilet. At that stage he had been inside the premises long enough to steal a wallet with a hundred and eighty dollars, a watch and a mobile phone without disturbing anyone. Indeed it was he who was disturbed by the return of the unsuspecting victim.

22. The next feature of aggravation of some relevance is the offender having a prior record for particularly like offences. I have mentioned already that there are twenty-nine such offences on his record and, indeed, I should note that the parole that he was just released to was a parole for a similar offence.

23. Next, the offence is committed at the premises of the elderly, the sick or the disabled. Although Mr Trajanovski was seventy-seven years old, he was surrounded by family. When first entering his bedroom he thought the accused was a grandson. That suggests that his grandson is a fully developed young man. Mr Bogoja Trajanovski’s own son was aged fifty, he was also present. In those circumstances, I do not regard Mr Trajanovski as a vulnerable person. I am also satisfied the offender did not know the identity of those living in the premises. It is likely at least by the time the offender was grabbed by the victim, the elderly victim, he would have realised that victim was an elderly man.

24. The next matter of aggravation is one of vandalism or other significant damage to the property. In the course of escaping, the window of the premises was broken. I am unable to say whether it was broken deliberately or not. It is likely that it was broken, and the offender, in his evidence, says it was broken, in the course of the struggle to flee. I would have to be satisfied beyond reasonable doubt that he intended to break it, I cannot be so satisfied and, therefore, cannot treat the breaking as an intended breaking. On the other hand, I am satisfied beyond reasonable doubt it was a consequence of his invasion into this house and, on that basis, I do regard it as aggravating the offence.

25. The next matter of aggravation that I draw from Ponfield is the value of the stolen property to the victim. I have already mentioned that the money taken amounted to a hundred and eighty, cards and private documents were taken that would have needed to be replaced. I accept the watch may well have been of sentimental value. The mobile phone may well have contained material the victim wished to keep private and, indeed, may have been a phone of some value. Those matters are not clearly established in evidence.

26. The last of the aggravating features in Ponfield was that the actual trauma suffered by the victim as a result of corporal violence of infliction of actual bodily harm is one that has been picked up since Ponfield in the changing of the offence into an aggravated form by parliament and, of course, that aggravation is reflected in the increased maximum penalty. Parliament has prescribed a standard non-parole period for this offence of five years should it fall within the mid range of seriousness for this type of offence.

27. In assessing whether this offence falls within a mid range of seriousness, I have noted that there does not appear to have been any damage caused in the actual entering, although I have noted the damage in the escaping from the premises. From the owner’s point of view that may well be academic, but the damage done to commit the intended offence, stealing, would, as I say, be regarded as the higher order of criminality because it is done maliciously and with intent to do further crime. The damage on this occasion arises from a struggle with a view to escape. Certainly it is criminal damage, but the malice is less.

28. There is no suggestion the house was left in disarray or trashed or desecrated by the offender whilst about his criminal activity. Corporal violence was done, but only after the offender himself was grabbed when he was partway through the window. I have already indicated the corporal violence was criminal, but was not of the same high order that it would have been had it been done to capture the booty. I am conscious of remarks made by Simpson J in R v Huynh [2005] NSWCCA 220 in respect of the seriousness of corporal violence in these kinds of offences. Subject to what I have said above, I approach corporal violence in accordance with her Honour’s observations.

29. I have regard to the property taken. Whilst I regard the value of the property as substantial, other break, enter and steals have resulted in far more property being taken. This offence, on its objective circumstances, falls below a mid range of seriousness.

Subjective Circumstances

30. This offender is now a twenty five year old Aboriginal male, raised by an aunt in the Newcastle region. As a young child he visited his mother occasionally in Redfern. She was a heroin addict. It appears he has had no significant contact with his father. His aunt’s house appears to have been a residential centre for other members of his extended family or of her extended family. He left Newcastle for Redfern at an age of fourteen but regards his aunt’s house as his home. His aunt and a brother/cousin, Michael Lombardi, appear to be the two most significant people in his life. He contacts them by phone regularly. Although not the country of his birth, he was brought up an Awabakal man. The home was at Windale. He has a sister, but I sense contact with her is more remote than with the other two significant persons.

Education, Skills and Work Experience

31. Young attended Windale Public School and Gateshead High School, where he departed in year 8. He is basically illiterate and without numeracy skills. He says he plays rugby league well, in the position of fullback. This offender first entered juvenile custody aged sixteen. Between sixteen and nineteen he spent the majority of his time in juvenile custody. Since February 2002 until today he has been in and out of custody. On my calculation, in the six years and nine months since February 2002 he has spent five years and two months of it in custody.

32. Much of his education would have been completed whilst in custody. He has qualified as a bricklayer. Currently he has started a course in Aboriginal art, but concedes he is not yet very skilful at it. Intellectually he presents as impoverished. He had difficulty in primary and high school academically. There were some disciplinary issues, but he does not appear to have been expelled. He has never been employed but thinks he could obtain work as a brickie or perhaps as a brickie’s labourer.

General Health

33. He is a young man of twenty five, he is of normal build, presently he is experiencing ongoing erectile dysfunction, which he thinks came about as an injury when he fell down a flight of stairs whilst in custody. He noticed this problem in April 2007. There is a report before me noting an acceptance by clinicians who have seen him that he is very distressed and upset about the consequences of this injury. It would not be surprising that a young man of twenty-five would be upset about impotency issues. His concern has been exacerbated by the response of those who are responsible for his health care. Although the problem is noted in April 2007, it is four months later, in August 2007, before he is seen by the urology department at the Prince of Wales. Whilst symptoms including scar tissue have been noticed by the clinicians, therapeutic procedures have not been undertaken, because it is desired to do more investigative procedures.

34. Although some investigative procedures have been recommended, they are, as yet, not pursued. They were to be scheduled by Corrective Services but have not yet happened. No doubt Young is understandably stressed by what appears to be, at least from his perspective, a lack of proper attention to his health issues between April 2007 and November 2008.

Mental Health Issues

35. In the course of assessing the reliability of tests administered by John W Taylor, a forensic psychologist retained by the defence, Mr Taylor made observation that Young was not introspective and not capable of developing significant insight with regard to functioning (his own). Mr Taylor thought that may have affected the reliability of his own assessment. My own view is the tests conducted by Mr Taylor present the best insight likely to be offered.

36. Mr Taylor, based upon the results, diagnosed the offender as having a personality disorder with some antisocial characteristics. He diagnosed cognitive impairment. Such tests as were completed indicated a mild intellectual handicap. Mr Taylor had allowed two hours for the tests, they were not all completed, which would suggest that the offender is also relatively slow. The mild intellectually handicapped would, of course, account for past school performance and the incapacity to develop insight in regard to his own functioning. My own sense of the offender is of a man with immaturity, concrete thinking patterns and no reflective thinking capacity.

37. Mr Taylor diagnosed Young as having a drug abuse disorder. I will return to this topic shortly. Mr Taylor also diagnosed an emotional disorder, low self-esteem and anger internalised towards himself with feelings of guilt. The offender gave evidence “that he was tired of the life he led - he has been to five different gaols - the past few years everything’s hitting me - where my life is - not a night goes by I don’t think about what I’ve done”. The assessment by Mr Taylor disclosed a number of antisocial characteristics, including antisocial personality problems, conduct problems, criminal history, alcohol and drug abuse, antisocial associates, impulsivity and risk-taking behaviour. Not surprisingly, he was also diagnosed with a high-moderate risk of recidivism. Two out of three persons in this category re-offend within three years of release.

38. Nathaniel Young’s best chances of achieving rehabilitation rests with a compulsory and well oversighted drug rehabilitation program, coupled with intensive vocational guidance assistance.

Drugs and Alcohol

39. The offender gave evidence he was abusing both cannabis and alcohol when aged nine. He was using heroin at age twelve. Initially he smoked it but, within nine months was injecting. He became a poly drug abuser including cocaine and amphetamines into the mix. He sought to do rehabilitation at The Glen, but someone came to The Glen distributing drugs. He took advantage of that and was kicked out. At the time of the offence he was on ICE. He says he was on ICE several days before the offence, but it cannot be so because he was in custody several days before the offence, but there was a period immediately before that custody where he had been at large, he claims it was during that period that he over-abused ICE and the withdrawal associated with that over-abuse was still ongoing at the time he was offending. He was either on drugs, or perhaps withdrawing, when he committed this offence.

40. On two occasions he has tried to rehabilitate without success, I have referred to one being at The Glen. Presently he has been accepted into Benelong’s Haven rehabilitation program at Kempsey but has been placed on a waiting list. In the absence of compulsion, it would be unlikely he would complete the program. Nonetheless, his attempts at rehabilitation indicate a desire to rehabilitate, particularly when not in the community. Once released into the community it is likely his priorities would change.

Character and Criminal History

41. This offender is a young Aboriginal man of impoverished intellect who is a repetitive offender. Since adulthood he has spent something like only one day in five out of custody. His crime of choice is break, enter and steal. He was first before the Children’s Court for offences committed when he was fifteen. While this is not his first offence where physical violence has occurred, his offences of violence are in the minority on his record. On my review of his custodial record, apart from appeals from Local Court decisions, this is the offender’s first occasion where he has been dealt with in this Court upon indictment. While it needs to be understood, the science of predicting future conduct is still underdeveloped, it is more guesstimate than science. Nonetheless, six indicators, criminal tendency, antisocial personality problems, conduct problems, criminal history, alcohol and drug abuse and antisocial associates are scores from testing that are, in Mr Young’s case, elevated.

42. In assessing issues related to the standard non-parole period, I note section 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 is a factor which I must take into account. In accordance with authority, I do not regard it as increasing the objective criminality, but impacting so as to demand an absence of leniency when considered among the subjective features. On my calculation, this offence was committed when the offender was twenty two, approaching twenty three years at the time of the offence He has committed subsequent offences. The only relevance of those subsequent offences that I have attached to is in assessing his prospects of rehabilitation and in evaluating his immediate post-offence contrition.

43. While I accept Mr Taylor’s assessment of moderate high recidivism prognosis, there are a few favourable factors that should be considered. The offender is now contrite, he said so in court and to Mr Taylor. He told Mr Taylor “when I was younger I didn’t care --- now it’s starting to hit me and I can’t stop thinking about it --- I feel really sorry for the victims”. There have been efforts at drug rehabilitation. While they have been unsuccessful, going into rehabilitation centres is an important first step. While he does not have strong community support, he is not isolated. There are at least two significant persons in his life who may support him on release. There has been some positive conduct whilst in gaol, attending courses. Although modest, it is a start. He is still relatively young, his character may not yet be fully locked into those traits that have led him thus far into crime.

Setting the Sentence/Deterrents

44. In modern Australian society there is a very extensive raft of criminal laws passed by the Federal and State Parliaments. The chief purpose of those criminal laws put in place by parliament is to deter those tempted to breach the provisions of the criminal law. Parliament does that by prescribing maximum penalties such as the twenty year maximum penalty for this offence and the five year standard non-parole period for those who engage in conduct prohibited by the criminal law. Consequently, when a person is sentenced for a breach of the criminal law, he is exposed to the possible maximum penalty provided by the statute breached. Sentencing for breaches of the criminal law requires a judge to keep in mind those general deterrence aims of the criminal law for the community at large by keeping in mind those maximum penalties available and their deterrent purpose.

45. There is also a specific deterrent aimed at individuals likeminded to this offender who, but for such deterrence, would be willing to commit crimes similar to those for which this offender is being sentenced. Finally there is a component of deterrence to be considered personal to the offender with a view to targeting him and deterring him from re-offending. Given this offender’s intellectual impairment, concrete thinking and drug addiction, I am satisfied there needs to be an element of personal deterrence in the sentence I set.

Standard Non-Parole Period?

46. Because of the early plea, this need not be a matter attracting a standard non-parole period. On its objective circumstances I have found it falls below a mid-range offence. Nonetheless, on its objective features it does come close to reaching the bottom of that mid range. The subjective features do not lift the offence into a mid range. While I accept that this offence will not attract a standard non-parole period, because, on any view, it does not fall within the mid range of objective seriousness, I must, nonetheless, regard the standard non-parole period as a benchmark. It is, of course, a non-parole period that applies to mid range offences, consequently it will drive upwards sentences and non-parole periods that do not reach that mark.

Special Circumstances

47. This is a case where a finding of special circumstances is appropriate. The youth of the offender at the time of offending (see R v Hearne (2007) 124 AcrR 457) and the sentence being imposed is partially cumulative upon a sentence already being served (see below).

Custodial History Since Arrest

48. This offender was serving a sentence of fifteen months’ imprisonment from 17 April 2007 with a non-parole period of eleven months for three counts of receiving. He escaped from that imprisonment on 4 November 2007 and was at liberty for twenty three days until recaptured on 27 November. The offender's existing sentence was determined as commencing on 17 April 2007 and expire on 7 August 2008, with the non-parole period expiring on 7 April 2008. He was then sentenced to imprisonment for an additional month commencing on 8 April 2008 and expiring on 7 May 2008 for the escape. He has remained in custody at the expiration of the 7 May sentence awaiting this matter to be finalised.

Commencement Date of Sentence

49. I am satisfied the offender was always going to plead guilty to this offence once charged with it. The Crown case was strong. His DNA, or at least DNA consistent with being his, had been found on items associated with the burglar. The Crown argues for a commencement date to begin on 7 May, when the last sentence expired. The defence seek a starting date on 29 November 2007, when the offender was charged. I do not regard it as double counting to commence the sentence from a point in time when the offender was prepared to plead to it. It is not unusual to accumulate sentences from the expiration of a non-parole period. While it is true this offender was serving a balance of parole, partial concurrency of sentences for different matters is quite common. I intend to commence the sentence from 29 November 2008.

Acknowledging the Plea of Guilty

50. The offender pleaded guilty from the outset. I intend to give a twenty five percent discount upon the sentence I would otherwise have given (Thomson and Houlton (2000) 49 NSWLR 383).

Totality

51. I have kept in mind the issue of totality of sentencing with the sentences that were being served but have now expired. I have accommodated totality issues by commencing this sentence on 29 November 2008, that is before the sentences expired.

Sentencing

52. But for the plea of guilty, I would have set an overall sentence for this offence of six years’ imprisonment. Discounting that by twenty five percent, which makes eighteen months, means that this prisoner will serve an overall sentence of four and a half years.

53. Would you stand up please Mr Young.

54. Nathanial Robert Young, you are convicted of the offence that you, on 17 March, at Hamilton, broke and entered the dwelling house of Trage Trajanovski situated in Tudor Street and, while you were in the dwelling house, committed a serious indictable offence, namely stealing, in circumstances of aggravation, namely that you used corporal violence on Mr Bogoja Trajanovski and his son Trage Trajanovski. I set a non-parole period of two and a half years, to commence on 29 November 2007 and to expire on 28 May, on my calculation, 2010. I set a balance of term of two years, to expire on 28 May 2012.

55. Just have a seat for a minute, make sure those figures are right, and, while that is being done, I want to explain this to you.

56. I cannot order your release on this sentence because it is a sentence in excess of three years. Your release can only be ordered by the Parole Board. They will only order your release to parole if they are impressed with the progress that you have made while you are in prison. So, for the next two and a half years or so, it is probably not quite as long as two and a half years, you have to do all the courses you can and stay out of trouble if you can. You have to persuade the Parole Board that you should be released in two and a half years. You have a very difficult task in doing that because there is real concern that you may re-offend again, so you have to be able to persuade them you will not re-offend again. Do what you can about your drug addiction.