Riley v The King

[2023] NSWDC 668

District Court

New South Wales

Medium Neutral Citation:

Riley v R [2023] NSWDC 668

Hearing dates:

12, 15 September 2023

Date of orders:

15 September 2023

Decision date:

15 September 2023

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See paras [15], [67]-[69].

Catchwords:

CRIME – SEVERITY APPEAL – 40 Offences in Local Court – Combined aggregate sentences amounting to 29 years and 3 months – Appellant sentenced to 5 years imprisonment with no parole period – Personal circumstances considered on appeal – Parole period fixed.

SENTENCE – For 3 offences – Aggregate sentence on top of non-parole period fixed on Severity Appeal – Special circumstances.

Legislation Cited:

Crimes Act1900, s 51B(1), 113(2), 344A(1).

Crimes (Sentencing Procedure)Act 1999, s 45.

Drug Court Act 1998, s 18B.

Cases Cited:

Bugmy v R (2013) 302 ALR 192

Texts Cited:

Nil.

Category:

Principal judgment

Parties:

Crown – R (NSW)
Appellant/Offender – Adam Livingston Riley

Representation:

Counsel:
Crown – Mr Betts, L. (Sol.)
Appellant/Offender – Mr Hunter, M.

File Number(s):

2020/00369693; 2022/00142565; 2022/00155268; 2022/00250785; 2022/00265250; 2022/00250800.

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

13 March 2023

Before:

Walsh LCM

Judgment

1. HIS HONOUR: There are before me two applications. The first application is by Adam Livingston Riley, an appeal against the severity of a sentence passed by Magistrate Walsh sitting in the Local Court at Bankstown on 13 March 2023. The second application is by the Crown and is an application for the sentence of Mr Riley on three substantive charges. I have dealt with each application separately in that order.

Severity Appeal

2. I turn then to the appeal against severity of the sentence imposed in the Local Court. The appellant stood for sentence for 40 separate offences. They were committed on dates between 14 December 2020 and 23 August 2022. His Honour imposed an aggregate sentence. When one adds up the total of the aggregate sentences, they amount to 29 years and 3 months.

3. His Honour imposed an aggregate sentence of five years imprisonment which was the maximum that he could impose as a Magistrate sitting in the Local Court. His Honour declined to fix any non-parole period.

4. His Honour was entitled to decline to set a non-parole period for reasons given in s 45 of the Crimes (Sentencing Procedure)Act 1999. Essentially his Honour made a determination under s 45(1)(c). The reason is that the maximum penalty that he could impose was much less than he would otherwise have imposed given the total of the indicative sentences. In those circumstances, he thought it was unjust to impose a non-parole period.

5. However, when I read through the facts behind each of the offences that the offender committed, that were dealt with by the Local Court, it became clear that a pattern emerged that the offender was a person suffering from a drug addiction; a person who was very poorly educated; a person with probably a very poor work history; a person who had lived most of his life in poverty, but a person who was not a violent criminal.

6. The vast majority of his crimes were crimes related to property: taking and driving vehicles or being carried in vehicles which had been taken and driven without the consent of the owner, and numerous crimes of larceny to obtain money to support his drug habit and to support his existence.

7. Two of the crimes dealt with by his Honour were crimes which in my view ought to have been the subject of committal for sentence in this Court.

8. On 23 August 2022 at Panania, the appellant was driving a vehicle which he was not entitled to drive and was engaged in a police pursuit. He did not stop when required to do so and drove dangerously. That is an offence contrary to s 51B(1) of the Crimes Act1900 (‘Crimes Act’). The maximum penalty for a first offence of that nature is imprisonment for three years if dealt with in this Court or two years if dealt with in the Local Court, albeit that was in fact the second time that the offender breached s 51B(1) of the Crimes Act. His Honour imposed an indicative term of two years.

9. The second time on which the offender was dealt with for the same crime was for one which occurred on 17 August 2022 at Carlton. Although it was committed earlier in time than the offence of 23 August 2022 at Panania, the offender was dealt with it later at first instance. The maximum penalty for the second offence of that nature, if dealt with in this Court, was imprisonment for five years but when dealt with in the Local Court, the maximum penalty was imprisonment for two years. His Honour indicated an indicative sentence of 15 months imprisonment. Otherwise, the offences that were dealt with were all matters within the jurisdiction of the Local Court.

10. However, the other factors which I discerned from reading the facts indicated to me that the offender should be given an opportunity, by behaving well in custody and by seeking to rehabilitate himself when in custody, to obtain a benefit from that behaviour by having his sentence reduced by being awarded parole. Furthermore, the award of parole would enable him to enter the community with the assistance of Community Corrections who might be able to help him change his life around to continue such rehabilitation as he had undertaken on his own behalf.

11. My impression from reading the facts was reinforced when I read the subjective material placed before me on the sentence matter, which proved that my suspicions were well founded and that the offender has had a very unfortunate life, for which he is owed much by the community. Bugmy principles certainly apply in this case; albeit that the offender is not an indigenous Australian. I shall say more about that when I come to the sentence matter.

12. In addition, the offender has a long history of offending. He was born in May 1984 and was first charged in May 2002 when he was aged 18 years. The first time that he entered custody was on 26 September 2009 when he was arrested. The first time he was sentenced to a full‑time custodial sentence was on 12 February 2014. Between that date and 12 September 2023 when the hearing commenced before me, 5,099 days had elapsed, of which the offender had spent 2,307 days in custody. That is, he has spent some 45% of his time in custody since he was first taken into custody and he has in the last ten years of his life, spent 63% of his life in custody.

13. During that period of time, his longest period whilst being in the community was 538 days, 1 year, 5 months and 20 days. That is recorded on Exhibit A in the appeal.

14. I indicated at the end of the appeal hearing that I would impose a standard non-parole period on the five‑year sentence. The sentence needs to be adjusted additionally, because the sentence commenced on 24 August 2022, but it ought to have commenced on 23 August 2022.

15. For those reasons, I allow the appellant’s appeal.

Sentence on Severity Appeal Matter

16. I commence the sentence imposed by the Local Court on 23 August 2022. I fix a standard non-parole period of 25% of the head sentence of five years which is a period of three years and nine months. The non-parole period will commence on 23 August 2022 and expire on 22 May 2026. I fix an additional term of one year and three months, expiring on 22 August 2027.

Sentence on Additional Three Substantive Matters

17. I turn now to the sentence matter. The offender is to be sentenced for three substantive matters; albeit that the first two are within the jurisdiction of the Local Court. The third substantive matter is not within the jurisdiction of the Local Court and had to be brought before this Court by way of committal for sentence. The two matters within the jurisdiction of the Local Court were brought with the matter that could not be dealt with in the Local Court, because they were all committed at the same time.

18. There are, in addition, two matters to be dealt with on Forms 1. There is one matter on each Form 1 and each Form 1 is referable to the offences which were within the jurisdiction of the Local Court.

19. I am to take into account, in dealing with Sequence 2, the Sequence 1 matter. I am to take into account in dealing with the Sequence 5 matter, the Sequence 4 matter which is on the Form 1. The strictly indictable matter is known as Sequence 7.

20. All these offences were committed whilst the offender was at conditional liberty. The offences were committed whilst he was subject to two Community Corrections orders and were also committed when he was subject to police bail. The committing of offences when at conditional liberty is an aggravating factor.

Sequence 2 Offence

21. I turn to the relevant facts. At 4.10am on 21 August 2022, the offender arrived at Henry Lawson Drive, Picnic Point. At 4.41am, the offender was filmed on CCTV, entering the motor vehicle with registered number YIM65Q, a Mitsubishi ASX, owned by Mr Fouad Bou-Diab, who was residing on Henry Lawson Drive. The offender obtained access and entry to that vehicle by opening the driver’s side door, which was unlocked. Certainly, the offender had no permission to do that. From that vehicle, the offender took and carried away a pair of black “Maui Jim” sunglasses worth approximately $275, and a mobile phone holder worth $37.30. That is the Sequence 2 offence. The property that was taken and carried away was that of Mr Fouad Bou-Diab.

Sequence 7 Offence

22. Two minutes later, the offender was filmed on CCTV approaching the front door of a house further along Henry Lawson Drive. The offender looked through a window beside the front door and then opened the front flyscreen door. He then attempted to open the front door by turning the door handle, but the door was locked. When doing that, the offender was in possession of an item that appeared to be a firearm. That implement could be described as an offensive weapon. It appears to me, from looking at the CCTV footage, to be some form of a firearm or imitation firearm, it might even be a water pistol, but it is something that is likely to have intimidated or overawed any persons within the dwelling if the offender had gained access to the dwelling.

23. Breaking and entering with intent to commit an indictable offence such as larceny is an offence contrary to s 113(2) of the Crimes Act. An attempt to do so carries the same maximum penalty as the crime attempted. That is provided for in s 344A(1) of the Crimes Act. The maximum penalty for attempting to break and enter the dwelling house with intent to commit an indicatable offence whilst armed with a dangerous implement is imprisonment for 14 years. There is no standard non-parole period. This offence is known as Sequence 7.

24. In addition, the offender was wearing a facemask, but it is the common sort of facemask that was worn during the days of the COVID-19 pandemic pandemonium, or “masquerade” as I have called it repeatedly.

Sequence 4 Offence

25. Some three minutes later, the offender was filmed on another CCTV camera entering the motor vehicle with registered number C7H80X, a Toyota Hilux, parked near another house on Henry Lawson Drive. The offender gained access and entry into the vehicle by opening the driver’s side door, which was unlocked.

26. The offender entered the vehicle without the consent of its owner. That is known as the Sequence 4 offence which the offender asks me to take into account when dealing with him for the Sequence 5 offence.

27. The maximum penalty for the Sequence 4 offence is a fine of four penalty units. From the vehicle, the offender took and carried away a pair of Sony XM4 headphones worth approximately $439 and a black battery pack worth $200, the property of Jordan Vais who, I assume, was also the owner of the motor vehicle.

28. The total of the items stolen, that is the larceny, was $639. None of the items that the offender stole on 21 August 22 have been recovered. As I have mentioned this was, indeed, part of the crime spree which is mainly reflected in the penalty imposed by the Local Court which was the subject of the appeal which I have dealt with earlier.

Personal Circumstances

29. Exhibit 1 on the sentence matter is a report of Ms Clair Baker, a consultant forensic psychologist who interviewed the offender via Zoom for two hours on 28 August 2023. The offender was then an inmate of Lithgow Correctional Centre. Ms Baker’s practice is at Pymble. The reading of the report can only incite sympathy in any fair‑minded member of our society.

30. The offender is an only child. He was raised by his mother. The offender has no recollection of his father until he reached his teenage years. He told Ms Baker that his first memory of his father was when he was about 15 or 16 years old. He would go and visit him at times. The offender’s mother was in a same sex relationship throughout his childhood, but that relationship ended when the offender was 17 years old. His mother used Methadone throughout the offender’s entire life and he told Ms Baker that there were “lots of drugs around” during his childhood years. His mother had persons constantly visiting her and leaving the house. It may well be that she was involved in some form of drug trafficking.

31. The offender believed that his mother liked supporting people who had “nowhere else to go”. The offender has no recollection of his mother ever having had any employment. However, her lady partner did work on and off as a butcher. The offender’s mother is dyslexic, as is the offender. Because of his mother’s dyslexia, she was not particularly helpful in assisting the offender with his schoolwork; albeit that she tried.

32. The offender also told Ms Baker that he was exposed to what he described as “a bit of needle use” as the individuals, his mother would assist in her home, were intravenous drug users. The offender told Ms Baker that they were using heroin, as well as Normison and Methadone.

33. The offender told Ms Baker that from his first meeting with his father in his late teenage years, they were relatively distant. His father was an alcoholic and unemployed throughout his life. The offender was aware that his father was a user of crystal methylamphetamine, popularly known as ICE, at various times in his life. Whenever the offender dealt with his father, he believed that he was drunk.

34. He continued living with his mother until he went to prison. He went on to tell Ms Baker that although his mother no longer uses Methadone or illicit drugs, she now takes Buprenorphine which is prescribed for her. She no longer lives in Sydney, but lives in Lithgow with a male friend.

35. The offender attended Merrylands East Primary School from kindergarten to Year 6. He told Ms Baker that he found school challenging and that he was “a slow learner, I can’t spell, I think I may be dyslexic...my mum and my daughter are both dyslexic”. He then attended Merrylands High School for Year 7, but his schooling was disrupted when he moved to live with his mother’s partner’s parents in Canberra as his mother was having problems with “bikies”.

36. According to the offender, the “bikies” stood over his mother and took a material from the family home. The offender speculated with Ms Baker that he thought it was something to do with drugs, which is likely.

37. When he returned to Sydney, he started year 8 at Campbell House at Glenfield. Ms Baker points out that Campbell House school is a special High School that caters for students with an emotional behavioural or conduct disorder. Students who attended that school, have a wide range of learning and social and emotional needs. Under further questioning from Ms Baker, the offender conceded that he had been suspended from Merrylands High School for swearing and throwing chairs at teachers. He described himself as a relatively angry child when he was in Year 7.

38. The offender left Campbell House when he had obtained the requisite level of attainment. He was about 15 years old when he finished the program at Campbell House school. Unfortunately, he was assaulted by a teacher at the school. I shall not provide the details of that which are contained in Ms Baker’s report that they clearly indicate that the offender was very badly dealt with, and was made very vulnerable.

39. After leaving school, the offender worked for the father of a friend of his, floor sanding and polishing. He stayed in that job for about two years, but then “started hanging around with the wrong crowd”. He had admitted that those mates were unemployed, and they would steal, and steal things out of people’s garages, and use drugs. The offender told Ms Baker that was his first introduction to crime. It can be seen from his criminal history that that is essentially is what he has been doing ever since; stealing cars, stealing things from cars and from garages, and using illicit drugs.

40. The offender has a daughter who was born when he was 23 years old. That motivated him to obtain full-time employment to help support his child. He took a cleaning job and was responsible for cleaning the Sydney Theatre Company premises. He held that job for about 18 months before he was fired for stealing cash from the company. He was stealing money to support his drug habit.

41. At the age of 26, he found work with an event hire company for two years. However, during that period, he broke up with his girlfriend, who, I assume, is the mother of his daughter. He started using drugs more frequently and he stopped working and started going to gaol. In custody, the offender has completed a Barista certificate when he was incarcerated at Junee and has completed parts of a Hospitality Certificate I and a Hospitality Certificate II. He has done some work, woodworking at Parklea Correctional Centre and since he has been at Lithgow Correctional Centre, has been working in the laundry.

42. The offender’s daughter is now aged 16. She lives with her maternal grandparents, as her mother, the offender’s former girlfriend is also incarcerated for drug offences.

43. There is some cause to note the offender’s medical history. He had what would appear to be compound or comminuted fractures of his tibia and fibula involving the ankle joint in 2014. That occurred as a result of an incident when he was in the gaol. He now has a plate and ten screws in his leg. He has lost all his teeth. They became decayed, because of his use of methamphetamine. Not only that, he has now lost his dentures when he was moving between Correctional Centres. One hopes that that can be corrected.

44. In custody, the offender has been prescribed buprenorphine, but that has not helped particularly much.

Involvement with Alcohol and Other Substances

45. I turn now to consider the offender’s drug and alcohol habit. The offender started smoking marijuana when he was 13 years old. He told Ms Baker that he had taken the marijuana from his mother without her knowledge. He smoked a stick of marijuana a day to commence with, and then he increased that to what he described as a quarter or 7 grams a day by the time he was 18. He continued to smoke cannabis until he went to gaol.

46. The offender told Ms Baker that he found that cannabis calmed him down a bit and that his mother always had it around, so it must have been easy for him to take. However, he stopped using marijuana 10 years ago, after what he described as a “green out”, a term I have not come across before, but would appear to be some adverse reaction to the drug.

47. He started using methamphetamine when he was 15 years old, again taking that drug from his mother, who he told Ms Baker not only used the drug herself, but also sold it to others.

48. When he was 18, he moved from amphetamine or speed as he called it, to ICE, crystal methamphetamine. Again, he was stealing that from his mother, about a gram a day. He told Ms Baker that he liked using the drug as it helped him to stop thinking about the abuse that he had experienced when he was a teenager. He has been addicted to crystal methamphetamine ever since.

45. He told Ms Baker that when he was released from gaol, he returned to using crystal methamphetamine as soon as he got out. He was generally using a “ball” a day, which is 3.5 grams of the drug. The offender told Ms Baker that he realised that he had a very significant drug addiction. The offender had also first used heroin at the age of 16, having smoked it with his new found friends who were involved in crime. He only used that drug socially when he was with friends, according to the history he gave to Ms Baker.

46. He did not start using the drug GHB until the age of 37. He was introduced to that by his then girlfriend, explaining that she was a regular user, but he only ever consumed the drug to enhance their sexual experience.

47. In addition to that, the offender started drinking alcohol with his friends when he was 16 years old. Between the ages of 16 and 19, he used to consume a case of Bourbon and Coke each week. However, since then, he has only consumed alcohol occasionally, probably gaining most of his stimulation from his drug use.

48. As to a psychiatric history, Ms Baker formed the view that it was likely that there was a history of psychiatric illness in the family, considering the conditions of both his mother and his father as they were reported to her.

49. He told Ms Baker that when he was released from gaol on the last occasion in 2021, he had been enrolled in a drug and alcohol counselling program, but he only attended a few sessions before giving up with that counselling. As earlier mentioned, he admitted to being prescribed buprenorphine, but he did not think that it helped him very much. One of the attempted interventions was through the Drug Court in 2014, but that was unsuccessful.

50. The 28th paragraph of her report is this:

“Mr Riley expressed his desire to participate in a drug rehabilitation program, explaining that he felt he was “ready” to cease all illicit drug use. He stated that although drug rehabilitation programs had previously been offered to him, “I was scared of stopping drugs. I wasn’t ready. I’m ready now and I want to try rehab”.

55. For that change in attitude, the offender is to be commended, but certainly abstaining from drugs is imperative for him to stay out of gaol and to have a meaningful life where he may be able to assist his daughter and perhaps enter into a new and meaningful personal relationship.

56. Ms Baker assessed the risk of the offender’s reoffending. In her report, she said this:

“Mr Riley’s risk of future offending was assessed using an actuarial assessment tool used extensively throughout NSW Corrections designed to identify the offender’s risk and needs with regards to recidivism, as well as identifying their particular criminogenic needs.

Overall, Mr Riley’s profile placed him in the high category for his risk/needs. Comparatively, individuals in this category of offenders are considered to have a 76% chance of reoffending should they not be provided with services that address their criminogenic needs, which are identified from factors contained in the inventory to be the primary driver for their offending.

The criminogenic needs, or dynamic risk factors, that have been identified within the assessment include Mr Riley’s chronic history of illicit drug use, his lack of stable accommodation, poor social support and complete absence of non-criminal/drug using companions, lack of employment and financial resources, his lack of engagement in hobbies, sports and community activity to prevent him from boredom and his untreated mental health symptomatology.

Therefore, it is considered essential any future treatment plan for Mr Riley aims to address these needs to reduce his likelihood of reoffending in the future, because if he is able to remain abstinent from illicit drug use and receive the appropriate mental health treatment of his tendency toward addictive behaviour, he would be considered to have reduced likelihood that he will reoffend in a similar manner again in the future.”

57. Unsurprisingly, Ms Baker went on to diagnose amphetamine use disorder, namely amphetamine dependence as well as opioid abuse. She went on to express this view:

“Mr Riley would also benefit from mandated attendance to Narcotics Anonymous meetings upon his release from gaol, as it is considered essential that Mr Riley receives ongoing support through pro-social engagement with the community provided by the NA programs and with the support of a sponsor.”

58. Later in her report, she expressed the view that the offender should complete a residential drug rehabilitation post-custodial program, such as that provided by Odyssey House and engage in a subsequent structured program of mandated drug and alcohol counselling to address his mental health and addictive behaviours and his ability to maintain his abstinence from illicit drugs in the future would be improved markedly by that course of action.

59. All of this points me towards the view that the offender ought have a lengthy period on parole. He can only obtain that by showing the Parole Board that he has taken his rehabilitation seriously whilst in custody, and so that when released from custody, he could perhaps undergo a residential rehabilitation program, such as that outlined by Ms Baker, and have the assistance of Community Corrections to ensure that he maintains abstinence from drugs and is assisted in obtaining accommodation and employment that will be prosocial, rather than to sink back into his old ways.

60. Furthermore, as Ms Baker herself acknowledges, there is a risk that if the offender does not rehabilitate himself, he will spend more time in incarceration which would increase his risk of being institutionalised, a risk which probably already exists.

Consideration

61. I turn to the matters for which I must sentence him. As far as Sequence 2 and Sequence 5 are concerned, bearing in mind that on a Form 1 in respect of each, there is the offence of entering a motor vehicle without the consent of the owner, but bearing in mind the small value of the goods stolen, but bearing in mind that this is not a first occasion of this form of conduct, I commence with a head sentence of eight months imprisonment. I reduce that by 25% to account for the offender’s early guilty plea. In respect of each of Sequence 2 and Sequence 5, there will be an indicative sentence of six months imprisonment.

62. As far as Sequence 7 is concerned, it must be acknowledged that the maximum penalty is imprisonment for 14 years. The offender was carrying an implement which could cause the occupiers of the dwelling house, if they were confronted by the offender, to fear for their personal safety, because they might fear that the implement would be used to harm them. It is accepted that the offender knew that there were persons present within the house at the time that he attempted to break into it. That is confirmed by the offender’s actions when he was unable to gain entry to the front door; he very carefully returned the front flyscreen door back into place; he clearly did not want to make any noise which might have alerted those dwelling within the house that there was someone attempting to break into it. Therefore, although the offence was aggravated, there were two aggravating factors; the use of the offensive implement and the fact that he knew that there were persons present within the house. I start with a head sentence of three years. I reduce that by 25% to account for the offender’s plea of guilty at the earliest available opportunity, and that gives me an indicative head sentence of two years and three months.

63. Looking at the three indicative sentences I have arrived at, I come to the view that the aggregate sentence should be two years and six months.

64. Clearly, there are special circumstances to break the statutory nexus between the head sentence and the non-parole period. I very infrequently, and I mean infrequently, vary the statutory nexus by more than 50%.

65. In the current case, I am persuaded that I ought do so, because it is in the interest not only of the offender, but also of the State and the people who might otherwise become the victims of the offender if he is not properly rehabilitated or at least offered the proper means of rehabilitation.

66. I fix a non-parole period of six months, and the additional term will be two years. I intend to commence that sentence on 23 November 2025 when the offender will already have been in gaol for three years and three months.

Sentence

67. Adam Livingstone Riley, you are convicted of the three offences for which you stand for sentence today. I fix a non-parole period of six months commencing on 23 November 2025 and expiring on 22 May 2026. I fix an additional term of two years, expiring on 22 May 2028.

68. I have found special circumstances. You are eligible for release on parole on 22 May 2026. In passing those sentences, I have taken into account the two matters on the Forms 1 which I will now execute.

69. Pursuant to the Drug Court Act 1998 s 18B, I refer to the Drug Court the appellant/offender to determine whether he should be the subject of a compulsory drug treatment order.

70. Now, is there any other order I need to make?

BETTS: No. That’s it.

HIS HONOUR: I’ve now executed the Forms 1. Good luck to you, Mr Riley. I hope things go well for you.

OFFENDER: Thank you your Honour.

**********

Decision last updated: 20 May 2025